Com. v. Jordan, K. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v.
KEVIN JORDAN
Appellant No. 3460 EDA 2016
Appeal from the PCRA Order dated October 3, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005792-2008
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 12, 2017
Appellant, Kevin Jordan, appeals pro se from the order dismissing his
second petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
On March 26, 2009, a jury convicted Appellant of criminal conspiracy
(violation of the Drug Act), criminal use of a communications facility,
criminal attempt (kidnapping and/or robbery), criminal solicitation
(kidnapping and/or robbery), criminal conspiracy (kidnapping and/or
robbery), and possessing an instrument of crime (a handgun). See
Commonwealth v. Jordan, 75 A.3d 554 (Pa. Super. 2013) (unpublished
memorandum) (affirming denial of Appellant’s first PCRA petition). On
June 16, 2009, the trial court sentenced Appellant to 12 to 24 years’
incarceration. Id. Appellant filed a direct appeal, and this Court affirmed
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the judgment of sentence on December 9, 2010. Id. Appellant petitioned
the Supreme Court of Pennsylvania for allowance of an appeal, but that
Court denied the petition on June 1, 2011. Commonwealth v. Jordan, 22
A.3d 1034 (Pa. 2011). Appellant did not petition the United States Supreme
Court for a writ of certiorari. Therefore, his judgment of sentence became
final on August 30, 2011, ninety days after the Pennsylvania Supreme Court
denied his petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3);
U.S. Sup. Ct. Rule 13.
Appellant filed a timely PCRA petition, within one year, on October 21,
2011. The PCRA court appointed counsel and ultimately dismissed the
petition without a hearing. Appellant appealed, and this Court affirmed the
denial of relief. Jordan, 75 A.3d 554. Appellant did not petition for
allowance of an appeal by the Pennsylvania Supreme Court.
Appellant filed the underlying PCRA petition, his second, on August 11,
2016. The PCRA court issued a notice of its intent to dismiss the petition as
untimely on August 31, 2016, and on October 3, 2016, the PCRA court
dismissed the petition. Appellant filed a timely pro se appeal on October 31,
2016. Appellant presents six issues, which we repeat verbatim:
[1.] Should the PCRA court remand to PCRA court to allow
[Appellant] to argue “Burton Claim,” where PCRA court
obstructed [Appellant’s] presentation of newly discovered facts
during first timely filed PCRA proceedings in 2012, by concealing
trial transcripts and sentencing order?
[2.] Whether the PCRA court erred in issuing 907 notice of
intent to dismiss without a hearing, where [Appellant] met and
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complied with 42 Pa.C.S. §§ 9545(b)(1)(ii) and (b)(2) exception
to jurisdictional time bar?
[3.] Whether the PCRA court erred in refusing to grant
evidentiary hearing or rule on immediate hearing, where
[Appellant] properly plead the en banc Superior Court’s July 12,
2016 decision in Ciccone which spawned a new distinct claim
outside of Alleyne, solely based on 1 Pa.C.S. § 1925 as declared
by our Supreme Court in Commonwealth v. Wolfe, on
June 20, 2016?
[4.] Whether the PCRA court erred in applying our Supreme
Court’s Washington decision as the law of the land, when it was
decided July 19, 2016, but did not overrule or abrogate our
Supreme Court’s Commonwealth v. Wolfe, 2016 Pa. LEXIS
1282 (Pa. 2016) decision decided 29 days prior on June 20,
2016 or the Superior Court’s July 12, 2016 holding in Ciccone?
[5.] Whether the PCRA court erred and abused its discretion by
denying motion to vacate dismissal pending reconsideration of
Ciccone by the en banc Superior Court, where [the] Ciccone
decision is central to the present case?
[6.] Whether the PCRA court erred and abused its discretion by
failing to apply the recidivist philosophy, when imposing [a]
facially unconstitutional mandatory sentencing statute, where
[Appellant] did not have [an] opportunity to reform prior to [his]
second conviction and sentencing, to be exposed to 42 Pa.C.S.
§ 9714(a)(1)?
Appellant’s Brief at 3.
When reviewing the propriety of an order denying PCRA relief, 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. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
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the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).
In addition, a PCRA petition must be timely filed within one year of the
date the petitioner’s judgment of sentence became 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 at the expiration of
time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). However, an
untimely petition may be considered when the petition alleges, and the
petitioner proves, that one of the three limited exceptions to the time for
filing the petition set forth at 42 Pa.C.S. § 9545(b)(1) is met. A petition
invoking one of these exceptions must be filed within sixty days of the date
the claim could first have been presented. 42 Pa.C.S. § 9545(b)(2). In
order to be entitled to proceed under an exception to the PCRA’s one-year
filing deadline, “the petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time frame” under
section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001). Whether a PCRA petition is timely is a question of law; this
Court’s standard of review is de novo and our scope of review is plenary.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013). It is well
settled that “[t]he filing mandates of the PCRA are jurisdictional in nature
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and are strictly construed.” Id. Consequently, “[a]n untimely petition
renders this Court without jurisdiction to afford relief.” Id.Here, Appellant’s judgment of sentence became final on August 30,
2011, and he had to file his PCRA petition by August 30, 2012 for it to be
timely. 42 Pa.C.S. § 9545(b)(1). Because Appellant filed the underlying
petition on August 11, 2016, we agree with the PCRA court that the petition
is untimely. PCRA Court Opinion, 1/5/17, at 6. The PCRA court was
presented with the same six issues Appellant has presented to this Court on
appeal, see id. at 4-5, and concluded that it was without jurisdiction to
review them because Appellant failed to prove an exception to the PCRA
time bar.
The PCRA court stated that Appellant “was mistaken” in his assertion
that “he has satisfied the exceptions in § 9545(b)(i) and (ii) and that his
petition was filed within 60 days of the Superior Court’s July 12, 2016
decision in Commonwealth v. Ciccone.” The PCRA court is correct. This
Court issued its most recent – and controlling – Ciccone decision on
December 13, 2016, and held that the decision of the United States
Supreme Court in Alleyne1 does not apply retroactively to a petitioner’s
collateral attack in seeking post-conviction relief. Commonwealth v.
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1 Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013) (holding that
“facts that increase mandatory minimum sentences must be submitted to
the jury” and found beyond a reasonable doubt).
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Ciccone, 152 A.3d 1004 (Pa. Super. 2016) (en banc), appeal denied, 169
A.3d 564 (Pa. 2017).2
The PCRA court added:
Furthermore, [Appellant] was sentenced as a repeat
offender under 42 Pa.C.S.A. § 9714(a)(1), a mandatory
minimum provision that has not been invalidated by Alleyne
and its progeny. Therefore, even if Alleyne applied
retroactively, satisfying the jurisdictional time-bar, it would
afford him no relief as he did not receive an illegal sentence on
account of Alleyne. Thus, because his PCRA is untimely and he
failed to establish that any exceptions to the time-bar apply, this
Court does not have jurisdiction to address the substantive
claims raised therein and he was not entitled to a hearing on his
petition.
PCRA Court Opinion, 1/5/17, at 7-8.
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2 We summarized the procedural history and precedential authority of
Ciccone as follows:
The appeal was submitted to a three-judge panel, but this Court
sua sponte granted en banc review. The present en banc panel
consisting of P.J.E. Ford Elliott, P.J.E. Bender, J. Bowes, J.
Shogan, J. Lazarus, J. (now Justice) Mundy, J. Olson, J. Ott, and
J. Stabile, concluded that Alleyne applied retroactively, and
granted Appellant relief. However, that decision was withdrawn
after our Supreme Court disseminated Commonwealth v.
Washington, 142 A.3d 810, 811 (Pa. 2016), wherein the Court
held that Alleyne does not apply retroactively “to attacks upon
mandatory minimum sentences advanced on collateral review.”
Commonwealth v. Ciccone, 152 A.3d 1004, 1006 (Pa. Super. 2016) (en
banc) (footnote omitted), appeal denied, 169 A.3d 564 (Pa. 2017).
Appellant appears to rely on our first en banc decision in Ciccone, but that
decision was withdrawn and is superseded by the Court’s later decision
holding that Alleyne does not apply to requests for collateral relief under
the PCRA.
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Our review of the record supports the determination of the PCRA court.
Accordingly, because we are without jurisdiction to review Appellant’s
second, untimely PCRA petition, we affirm the order denying relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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