Com. v. Cartney, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AUSTIN O. CARTNEY, :
:
Appellant : No. 1415 WDA 2017
Appeal from the PCRA Order September 19, 2017
in the Court of Common Pleas of Crawford County,
Criminal Division at No(s): CP-20-CR-0001196-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 9, 2018
Austin O. Cartney (“Cartney”) appeals from the Order dismissing his first
Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). See 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On April 27, 2015, Cartney entered a guilty plea to aggravated indecent
assault. On July 21, 2015, the trial court sentenced Cartney to a prison term
of two to four years. Cartney did not file a direct appeal.
On February 15, 2017, Cartney, pro se, filed the instant PCRA Petition.
The PCRA court appointed Cartney counsel, who filed an Amended Petition.
After providing Pa.R.Crim.P. 907 Notice of Intent to Dismiss, the PCRA court
dismissed Cartney’s Petition, without a hearing, as untimely filed. Cartney
filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of Matters Complained of on Appeal.
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On appeal, Cartney raises the following question for our review:
“Whether the PCRA court erred in concluding that [Cartney’s] PCRA [Petition]
was untimely filed?” Brief for Appellant at 7 (capitalization added).
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of the record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Under the PCRA, any PCRA petition “shall be filed within one year of the
date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment
of sentence becomes final “at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Here, Cartney’s Petition is facially untimely under the PCRA. See 42
Pa.C.S.A. § 9545(b). However, Pennsylvania courts may consider an untimely
petition if the petitioner can explicitly plead and prove one of three exceptions
set forth at 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Any PCRA Petition invoking
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one of the exceptions “shall be filed within 60 days of the date the claim could
have been presented.” Id. § 9545(b)(2).
Cartney invokes the “newly-discovered facts” exception at 42 Pa.C.S.A.
§ 9545(b)(1)(ii), alleging that his sentence is illegal based upon the United
States Supreme Court decision in Alleyne v. United States, 570 U.S. 99
(2013).1 See Brief for Appellant at 15. Initially, based upon our review of
the written Sentencing Order and sentencing hearing transcript, the trial court
did not impose a mandatory minimum sentence.
However, even if the trial court had imposed a mandatory minimum
sentence, judicial decisions are not “facts” that would invoke 42 Pa.C.S.A.
§ 9545(b)(1)(ii). See Commonwealth v. Watts, 23 A.3d 980, 986 (Pa.
2011). Thus, the “newly-discovered facts” exception does not apply.2
____________________________________________
1 In Alleyne, the United States Supreme Court held that any fact that
increases the sentence for a given crime must be submitted to the jury and
found beyond a reasonable doubt. Id. at 103.
2 In his PCRA Petition, Cartney invokes the “newly-recognized constitutional
right” exception, 42 Pa.C.S.A. § 9545(b)(1)(iii), based upon Alleyne.
However, Cartney’s February 15, 2017 PCRA Petition was filed well over 60
days after June 17, 2013, the date that Alleyne was decided. See
Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2017) (stating that
“[w]ith regard to an after-recognized constitutional right, this Court has held
that the sixty-day period begins to run upon the date of the underlying judicial
decision.”). Further, the rule established in Alleyne does not apply
retroactively where, as here, the judgment of sentence is final. See
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding
that “Alleyne does not apply retroactively to cases pending on collateral
review.”).
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Therefore, lacking an exception to the timeliness requirements of the
PCRA, the PCRA court properly dismissed Cartney’s first PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2018
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