Com. v. Woodard, R. ( 2017 )

J-S40020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT L. WOODARD, :
:
Appellant : No. 49 EDA 2017
Appeal from the PCRA Order November 18, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0220171-1992
BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JULY 11, 2017
Appellant, Robert L. Woodard,1 appeals from the Order entered in the
Philadelphia County Court of Common Pleas dismissing his thirteenth Petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546, as untimely. After careful review, we affirm on the basis that
Appellant’s PCRA Petition is untimely and this Court, thus, lacks jurisdiction
to review the Petition.
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*
Former Justice specially assigned to the Superior Court.
1
As this Court explained in a prior decision, Woodard’s surname is listed in
the certified record both as Woodward and Woodard. It appears that his
correct surname name is Woodard. We have changed the caption
accordingly.
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On December 10, 1992, a jury convicted Appellant of multiple counts
of Robbery, Burglary, Rape, and Possessing an Instrument of Crime.2 On
March 29, 1993, the trial court imposed an aggregate term of 48 to 96
years’ incarceration. On May 5, 1994, we affirmed Appellant’s Judgment of
Sentence. See Commonwealth v. Woodard, 647 A.2d 268 (Pa. Super.
filed May 5, 1994) (unpublished memorandum).
Appellant did not seek review by the Pennsylvania Supreme Court.
Appellant’s Judgment of Sentence, therefore, became final on June 4, 1994.
See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113.
Over the course of the next twenty years, Appellant filed twelve PCRA
Petitions, each of which were dismissed either because they lacked merit or
because they were patently untimely under the strict terms of the PCRA.
This Court affirmed each dismissal on appeal.
Appellant filed the instant pro se PCRA Petition, his thirteenth, on
September 19, 2016, more than twenty-two years after his Judgment of
Sentence became final. Relying on Alleyne v. United States, 133 S.Ct.
2151 (U.S. 2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.
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2
18 Pa.C.S. § 3701; 18 Pa.C.S. § 3502; 18 Pa.C.S. § 3121; and 18 Pa.C.S.
§ 907, respectively.
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Super. 2014),3 Appellant averred that he received an illegal mandatory
minimum sentence as a result of being sentenced under 42 Pa.C.S. § 9714.
On October 4, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice
advising Appellant of its intent to dismiss his Petition. Appellant did not file
a response.
On November 18, 2016, the PCRA court dismissed Appellant’s Petition
without a hearing, concluding that “Alleyne is inapplicable to [Appellant’s]
sentence.”4 PCRA Court Opinion, dated 11/18/16, at 1.
Appellant timely appealed on December 14, 2016. The PCRA court did
not order Appellant to file a Pa.R.A.P. 1925(b) Statement of Errors. The
PCRA court filed a brief Pa.R.A.P. 1925(a) Opinion incorporating several of
its prior Opinions.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). There is no right to a PCRA hearing; a hearing is unnecessary where
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3
Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proved beyond a reasonable doubt.
Alleyne, 133 S.Ct. at 2160-61. In Newman, this Court held that pursuant
to Alleyne, 42 Pa.C.S. § 9712.1 is no longer constitutional. Newman, 99
A.3d at 88.
4
The PCRA court noted that this was Appellant’s fourth PCRA Petition
invoking Alleyne in an attempt to vacate his Judgment of Sentence.
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the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008).
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA Petition is a jurisdictional
requisite). Under the PCRA, any Petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 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, Appellant’s Judgment of Sentence became final on June 4, 1994,
upon expiration of the time to file a Petition for Allowance of Appeal with the
Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113.
In order to be timely, Appellant needed to submit his PCRA Petition by June
4, 1995. Id. Appellant filed this PCRA Petition on September 19, 2016,
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more than two decades after the one-year deadline. Thus, Appellant’s
Petition is facially untimely.
Pennsylvania courts may consider an untimely PCRA petition if the
appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b), which provides the following:
(b) Time for filing petition.
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by 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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have
been presented.
42 Pa.C.S. § 9545(b)(1)-(2). See also, e.g., Commonwealth v. Lark,
746 A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated
the claim had been timely raised within 60-day timeframe).
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Here, in relying on Alleyne and Newman, supra, Appellant attempts
to invoke the timeliness exception under Section 9545(b)(1)(iii) to challenge
the legality of his sentence, averring that the court applied Section 9714’s
mandatory minimum.
Although a legality of sentence claim cannot be waived, it must be
raised in a timely PCRA Petition. Commonwealth v. Jones, 932 A.2d 179,
182 (Pa. Super. 2007); 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (holding that “[a]lthough legality of sentence
is always subject to review within the PCRA, claims must still first satisfy the
PCRA’s time limits or one of the exceptions thereto”).
The United States Supreme Court decided Alleyne on June 17, 2013.
In order to invoke the “constitutional right” exception under 42 Pa.C.S. §
9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days
of June 17, 2013, i.e., by August 16, 2013.5 See Commonwealth v. Boyd,
923 A.2d 513, 517 (Pa. Super. 2007) (stating that the 60-day period begins
to run upon the date of the underlying judicial decision). Appellant filed this
PCRA Petition on September 19, 2016, over three years after the Alleyne
decision.
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5
This Court applied Alleyne in Newman, supra, on August 20, 2014.
However, the clear terms of 42 Pa.C.S. § 9545(b)(1)(iii) only apply to
decisions issued by the U.S. Supreme Court and the Pennsylvania Supreme
Court. See also Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa. Super.
2016).
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Moreover, our Supreme Court has recently reiterated that Alleyne
does not apply retroactively on post-conviction collateral review. See
Commonwealth v. Washington, 142 A.3d 810 (Pa. filed July 19, 2016).6
Accordingly, Appellant failed to plead and prove any of the timeliness
exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly
dismissed Appellant’s untimely Petition. The record supports the PCRA
court’s findings and its Order is free of legal error. We, thus, affirm the
denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2017
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6
Appellant acknowledges that Washington, supra, is “binding” precedent.
Appellant’s Brief at 10.
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