Com. v. Lucas, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHARLES EUGENE LUCAS :
:
Appellant : No. 54 WDA 2021
Appeal from the PCRA Order Entered December 21, 2020
In the Court of Common Pleas of Jefferson County Criminal Division
at No(s): CP-33-CR-0000053-2006
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: June 23, 2021
Charles Lucas (Appellant) appeals pro se from the order dismissing as
untimely his third petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm.
This Court previously summarized the factual and procedural history as
follows:
[O]n February 15, 2006, Appellant pled guilty to four counts
of Burglary and on July 10, 2006, the trial court sentenced
Appellant to an aggregate term of 6 to 12 months’ imprisonment
followed by 9 years’ probation. On February 20, 2008, following
new criminal charges, the violation of probation (“VOP”) court
revoked Appellant’s probation and resentenced Appellant to an
aggregate term of 1-2 years’ incarceration, followed by 5 years’
probation. On February 17, 2015, again following new criminal
charges, the VOP court held a Gagnon I hearing, and ordered
Appellant to remain incarcerated pending the outcome of the new
charges on the two counts of misdemeanor Theft. On June 17,
2015, the court held a Gagnon II hearing and took judicial notice
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* Retired Senior Judge assigned to the Superior Court.
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of Appellant’s guilty plea to the above charges. On July 1, 2015,
the trial court revoked Appellant’s probation, and resentenced
Appellant to three consecutive sentences of 5 to 10 years’
imprisonment, for an aggregate sentence of 15 to 30 years’
imprisonment.
Appellant filed a timely notice of appeal and on June 2,
2016, this Court affirmed Appellant’s Judgment of Sentence. See
[Commonwealth v.] Lucas, [No. 124 WDA 2015, unpublished
memorandum, at 1-3 (Pa. Super. filed June 2, 2016)]. Appellant
did not seek review by the Pennsylvania Supreme Court. Thus, his
sentence became final on July 2, 2016. See 42 Pa.C.S. §
9545(b)(3) (providing “a judgment 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”);
Pa.R.A.P. 903(a) (providing that a notice of appeal “shall be filed
within 30 days after the entry of the order from which the appeal
is taken.”).
Commonwealth v. Lucas, 1348 WDA 2019, at *1-2 (Pa. Super. May 18,
2020) (unpublished memorandum) (footnote omitted).
On June 1, 2017, Appellant filed a timely PCRA petition in which he
alleged ineffective assistance of counsel. The PCRA court denied relief, and
this Court affirmed. Commonwealth v. Lucas, 1659 WDA 2017 (Pa. Super.
Aug. 21, 2018) (unpublished memorandum).
Appellant filed a second PCRA petition on April 15, 2019. The PCRA
court denied relief and this Court affirmed on May 18, 2020. Lucas, 1348
WDA 2019, supra.
Appellant filed the underlying PCRA petition, his third, on November 12,
2020. The PCRA court issued notice of its intent to dismiss without a hearing
pursuant to Pa.R.Crim.P. 907. On December 21, 2020, the PCRA court
entered an order dismissing the petition as untimely. Appellant filed a notice
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of appeal. Both the PCRA court and Appellant have complied with Pa.R.A.P.
1925.
Appellant presents two issues for review:
1. Whether the PCRA court erred in determining that the PCRA
petition was untimely because the petition was filed within
60 days of the date [of] receiving case law under
Constitutional Principles.
2. Whether the PCRA court’s conclusion Appellant has no
Constitutional protection under the PCRA exceptional rule
despite the U.S. Supreme Court[’s] decision in IVAN V. VS
[sic] CITY OF NEW YORK, 407 U.S. 203, 93 S. CT. 1951, 32
L.ED. 659 (1972) which states: “A proof beyond a
reasonable doubt decision is retroactive.” Appellant filed his
PCRA pursuant to UNITED STATES V. HAYMOND, 139 S. CT.
2369 (Feb. 26, 2019), similarities in Appellant[’s] case, and
when this information became aware to him pursuant to
COMMONWEALTH V. BURTON, 2017 PA. LEXIS 664 (March
28, 2017), verses Appellant’s filing.
Appellant’s Brief at 3.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
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in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
As Appellant’s judgment of sentence became final on July 2, 2016, we
agree with the PCRA court that Appellant’s petition is untimely. See Lucas,
1348 WDA 2019, supra (Appellant’s “sentence became final on July 2,
2016”).1 A PCRA petition, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final[.]” 42 Pa.C.S.A.
§ 9545(b)(1). Beyond the one-year time-bar, a petitioner must plead and
prove at least one of the three following exceptions:
(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.
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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.” 42 Pa.C.S.A. § 9545(b)(3).
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42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). Also, a petitioner must raise the claim
within one year of the date that the claim could have been raised. Id. at §
9545(b)(2).
Consistent with the foregoing, we examine whether Appellant has pled
and proven an exception to the PCRA’s time-bar. Appellant argues he has
met a combination of the second and third exceptions (newly discovered facts
concerning his constitutional rights). He states he filed his petition “in a timely
manner after reading, and determining through his personal knowledge that
the HAYMOND decision applied here, 139 S.CT. 2369 (Feb. 26, 2019), with
regards to Appellant’s illegal sentence.” Appellant’s Brief at 4; see also id.
at 2, 5. Further, “Appellant references a case similar in UNITED STATES V
HAYMOND, 139 S.CT. 2369 (Feb. 26, 2019) for retroactive application.” Id.
at 7. He states “the case was decided over 1 year ago, however [he has
limited access to] the SCI Houtzdale law library [and his] Oct. 15, 2020 law
library schedule/sign-in date is the first time he became aware that his
sentence could be challenged under these principles[.]” Id. (citing
Commonwealth v. Burton, [158 A.3d 618] ([Pa.] 2017). Appellant
concludes with a request “to be resentenced pursuant to the Constitution.”
Id.2
____________________________________________
2By correspondence dated April 1, 2021, the Commonwealth advised this
Court it would “not be filing a brief in regard to the above-captioned matter.”
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Appellant’s argument is flawed. First, the United States Supreme Court
decision in Haymond is inapplicable because it invalidated a federal statute,
18 U.S.C. § 3583(k). United States v. Haymond, 139 S. Ct. 2369, 204 L.
Ed. 2d 897 (2019) (statute governing revocation of supervised release and
authorizing new mandatory minimum sentence based on judge’s fact-finding
violated Due Process Clause and the Sixth Amendment).
Likewise, Burton is not applicable. We explained:
In Burton, our Supreme Court held that the presumption that
information which is of public record cannot be deemed
“unknown,” for purposes of Section 9545(b)(1)(ii), does not apply
to incarcerated, pro se petitioners. Burton, 158 A.3d at 638.
Nowhere in the Burton decision did our Supreme Court suggest
the creation of a new constitutional right, nor did the Court engage
in any form of constitutional analysis in reaching that decision. To
the contrary, Burton is a case of statutory construction or, more
specifically, it limits the scope of a prior interpretation of the text
of Section 9545(b)(1)(ii). In narrowing that prior interpretation,
the Burton Court did not invoke any provisions or rights set forth
in the Pennsylvania or Federal Constitutions.
Commonwealth v. Kretchmar, 189 A.3d 459, 463 (Pa. Super. 2018). Most
significantly, we held that “judicial decisions do not constitute new ‘facts’ for
purposes of the newly-discovered [fact] exception set forth in Section
9545(b)(1)(ii).” Id. at 467.
With regard to subsection (iii) and constitutional rights, the Supreme
Court in Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002),
explained:
Subsection (iii) of Section 9545 has two requirements. First, it
provides that the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or this court
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after the time provided in this section. Second, it provides that
the right “has been held” by “that court” to apply retroactively.
Thus, a petitioner must prove that there is a “new” constitutional
right and that the right “has been held” by that court to apply
retroactively. The language “has been held” is in the past tense.
These words mean that the action has already occurred, i.e., “that
court” has already held the new constitutional right to be
retroactive to cases on collateral review. By employing the past
tense in writing this provision, the legislature clearly intended that
the right was already recognized at the time the petition was filed.
Id. at 501.
In sum, the United States Supreme Court decision in Haymond is not
germane, and Appellant has not satisfied either the newly-discovered facts or
constitutional right exception to the PCRA’s time-bar. The PCRA court did not
err.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2021
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