Com. v. Little, S. ( 2020 )

J-S01020-20 & J-S01021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHEN LITTLE :
:
Appellant : No. 3403 EDA 2018
Appeal from the PCRA Order Entered October 26, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0012481-2007.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHEN LITTLE :
: No. 699 EDA 2019
Appellant :
Appeal from the PCRA Order Entered October 26, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0709461-2002.
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 13, 2020
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Stephen Little appeals from the order denying as untimely his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546.1 We affirm.
The pertinent facts and procedural history, as gleaned from our review
of the certified record, are as follows: On December 18, 2002, Little pled
guilty to sexual Assault and terroristic threats. See 18 Pa.C.S.A. §§ 3124.1
and 2706, respectively. That same day the trial court sentenced Little to an
aggregate term of 11½ to 23 months of incarceration followed by 8 years of
probation under Docket CP-51-CR-0709461-2002 (“the 2002 docket”).
On or about September 15, 2007, Little was arrested for violating the
terms of his probation. The basis for this violation was Little’s failure to
register as a sexual offender. On November 13, 2007, he pled guilty at Docket
CP-51-CR-0012481-2007 (“the 2007 docket”) for failing to register as a sexual
offender under Megan’s Law II. That same day, the trial court sentenced Little
to the negotiated sentence of five years of probation. The trial court also
resentenced Little at the 2002 docket to 11½ to 23 months of incarceration
followed by a five-year probationary term.
On August 25, 2010, Little was arrested and charged with aggravated
assault and related charges. Little entered a guilty plea and the trial court
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1 In accordance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),
and Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019), Little has
filed a separate notice of appeal at each lower court docket number listing
only that docket number.
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sentenced him to an aggregate term of 3½ to 7 years of incarceration and a
consecutive five-year probationary term.
These new charges resulted in the revocation of probation at both the
2002 docket and the 2007 docket. On March 12, 2012, the trial court
resentenced Little to a term of 2 to 10 years of incarceration for both the
aggravated assault conviction and the terroristic threats conviction at the
2002 docket. The trial court ordered these sentences to run consecutively.
At the 2007 docket, the trial court resentenced Little to a five-year term of
probation, consecutive to the 2002 docket charges. Little did not file an appeal
at either docket.
On January 7, 2014, Little filed a pro se PCRA petition, nunc pro tunc,
at the 2002 docket only. The PCRA court appointed counsel, and PCRA counsel
thrice amended the pro se petition. On June 9, 2017, the PCRA court granted
Little relief in the form of vacating the consecutive 2 to 10 year sentence for
terroristic threats because it exceeded the statutory maximum for the crime.2
No further penalty was imposed for the terroristic threats conviction and the
sexual assault conviction remained unchanged.
Little filed the PCRA petition at issue on October 16, 2017 at both the
2002 and 2007 dockets. The PCRA court appointed counsel on November 11,
2017. Little twice amended his pro se petition before the Commonwealth filed
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2 By filing his pro se PCRA petition “nunc pro tunc,” Little appears to concede
it was untimely filed. Our review of the record fails to disclose whether the
timeliness issue was addressed in the 2014 PCRA.
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its motion to dismiss on October 17, 2018. On October 23, 2018, Little’s prior
PCRA counsel filed a supplemental PCRA petition. On October 26, 2018, after
hearing oral argument, the PCRA court granted the Commonwealth’s motion
to dismiss Little’s petition because it was untimely and Little failed to plead
and prove a time-bar exception.3 This appeal followed.4 Both Little and the
PCRA court have complied with Pa.R.A.P. 1925.
Little now raises the following issue:
1. Should the conviction and sentence of [Little] for failure
to register with the State Police be vacated where the
PCRA court abused its discretion by dismissing his PCRA
petition?
Little’s Brief at 3. Before addressing this issue, we must first determine
whether the PCRA court correctly determined that his current PCRA petition
was untimely filed.5
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3Little does not take issue with the PCRA court’s failure to issue Pa.Crim.P.
907 notice of its intention to dismiss his petition. Thus, any such claim is
waived. See generally, Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super.
2013).
4 On January 8, 2019, the PCRA court granted Little’s motion for the
appointment of counsel to pursue the instant appeal. Current counsel was
appointed on January 31, 2019.
5 Because Little’s appeal only concerns the 2007 docket, our timeliness
determination will be limited to judgment of sentence imposed at that docket.
Little asserts in his brief he should also be granted relief “for the finding that
he violated his probation at the 2002 docket.” Little’s Brief at 9. This claim
is meritless, because the 2017 PCRA petition is untimely under that docket as
well.
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This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that an exception
to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.6 A PCRA petition invoking one of these
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6 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States.
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).
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statutory exceptions must “be filed within 60 days of the date the claims could
have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649,
651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §
9545(b)(2).7 Asserted exceptions to the time restrictions for a PCRA petition
must be included in the petition, and may not be raised for the first time on
appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).
Here, because Little did not file a direct appeal to this Court after he was
re-sentenced, on March 12, 2012, following his probation revocation for failing
to register as a sexual offender, his judgment of sentence became final thirty
days thereafter, or on April 11, 2012. See 42 Pa.C.S.A. § 9545(b)(3). Thus,
for purposes of the PCRA’s time bar, Little had to file his first PCRA petition by
April 11, 2013. Little filed his the PCRA petition at issue on October 16, 2017.
Thus, the petition is patently untimely, unless Little has satisfied his burden
of pleading and proving that one of the enumerated exceptions applies. See
Hernandez, supra.Little failed to plead and prove a timeliness exception. In the various
amendments to his PCRA petition, as well as within his appellate briefs, Little
argues that he has established the newly-recognized constitutional right under
42 Pa.C.S.A. section 9545(b)(1)(iii) applies based upon Commonwealth v.
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7Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. The sixty-day time period applies in this appeal.
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Muniz, 164 A.3d 1189 (Pa. 2017). In Muniz, our Supreme Court held that
the retroactive application of the Sexual Offender Registration and Notification
Act (SORNA) registration scheme to sexual offenders who committed their
crimes before SORNA’s effective date violates the United States and
Pennsylvania’s ex post facto clause because of the scheme’s punitive nature.
See Muniz, 164 A.3d at 1217.
However, this Court has determined that although Muniz applies to
timely collateral appeals, it does not establish a timeliness exception under
the PCRA. As this Court has explained:
Appellant’s reliance on Muniz cannot satisfy the ‘new
retroactive right’ of section 9545(b)(1)(iii). . . . Here, we
acknowledge that this Court has declared that, “Muniz
created a substantive rule that retroactively applies in the
collateral context.” Commonwealth v. Rivera-Figueroa,
174 A.3d 674, 678 (Pa. Super. 2017). However, because
Appellant’s PCRA petition is untimely (unlike the [timely]
petition at issue in Rivera-Figueroa), he must
demonstrate that the Pennsylvania Supreme Court has held
that Muniz applies retroactively in order to satisfy section
9545(b)(1)(iii). See [Commonwealth v. Abdul-Salaam,
812 A.2d 497, 501 (Pa. 2002)]. Because at this time, no
such holding has been issued by our Supreme Court,
Appellant cannot rely on Muniz to meet that timeliness
exception.
Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019) (quoting
Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa. Super. 2018),
appeal denied, 195 A.3d 559 (Pa. 2018)).
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Here, Little’s PCRA petition was untimely and he cannot establish a
timeliness exception.8 See Commonwealth v. Knecht, 219 A.3d 689 (Pa.
Super. 2019) (reiterating that Muniz does not establish a timeliness exception
under the PCRA).9 Therefore, the PCRA court lacked jurisdiction to consider
the merits of Little’s PCRA petition. We therefore affirm its order denying
post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/20
____________________________________________
8 We further note Little’s claim also fails because our Supreme Court decided
Muniz on July 19, 2017, and Little did not file his petition within sixty days of
that date. See n.5, supra.
9 If, in the future, the Pennsylvania Supreme Court issues a decision holding
that Muniz applies retroactively, Little can then file a PCRA petition, within
one year of that decision, attempting to invoke the timeliness exception of 42
Pa.C.S.A. section 9545(b)(1)(iii). Murphy, 180 A.3d at 406, n.1.
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