Com. v. Copeland, L. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LINWOOD CHESTER COPELAND :
:
Appellant : No. 1297 MDA 2016
Appeal from the PCRA Order July 19, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005742-2012
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 15, 2017
Appellant, Linwood Chester Copeland, appeals pro se from the order
entered in the Dauphin County Court of Common Peas, which dismissed his
second petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On June 10, 2013, Appellant entered a negotiated
guilty plea to indecent assault (victim less than 13 years of age), unlawful
contact with a minor, and corruption of minors. The court sentenced
Appellant that day in accordance with the plea bargain, to an aggregate
term of 5-10 years’ imprisonment plus two years’ probation. Appellant did
not pursue direct review. On December 4, 2013, Appellant timely filed a pro
se PCRA petition. The court appointed counsel on December 12, 2013. On
January 24, 2014, counsel filed a petition to withdraw and “no-merit” letter
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The
court issued appropriate notice per Pa.R.Crim.P. 907 on February 3, 2014,
and granted counsel’s petition to withdraw. Appellant responded pro se on
February 21, 2014, and the court denied PCRA relief on March 4, 2014. On
October 23, 2014, this Court affirmed the denial of PCRA relief. See
Commonwealth v. Copeland, 108 A.3d 121 (Pa.Super. 2014).
Appellant filed the current pro se second PCRA petition on April 27,
2016, seeking relief under Alleyne v. United States, ___ U.S. ___, 133
S. Ct. 2151, 186 L. Ed. 2d 314 (2013). On June 6, 2016, the court issued Rule
907 notice; Appellant responded pro se on June 13, 2016. On July 19,
2016, the court denied PCRA relief. Appellant timely filed a pro se notice of
appeal on July 27, 2016. On August 8, 2016, the court ordered Appellant to
file a concise statement per Pa.R.A.P. 1925(b); Appellant timely complied.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3). The
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statutory exceptions to the PCRA time-bar allow for very limited
circumstances under which the late filing of a petition will be excused; a
petitioner asserting a timeliness exception must file a petition within 60 days
of when the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant’s judgment of sentence became final on July 10,
2013, upon expiration of the time to file a direct appeal with this Court. See
Pa.R.A.P. 903. Appellant filed the current PCRA petition on April 27, 2016,
which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now
attempts to invoke the “new constitutional right” exception to the statutory
time-bar per Section 9545(b)(1)(iii), insisting Alleyne and its progeny
declared unconstitutional the mandatory minimum sentencing statute under
which Appellant was allegedly sentenced. Nevertheless, the court did not
impose a mandatory minimum sentence here so Alleyne would not apply in
any event. Accordingly, we affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2017
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