Com. v. Hinton, J.

J-S31037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN W. HINTON :
:
Appellant : No. 1686 WDA 2018
Appeal from the PCRA Order Entered October 30, 2018
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000661-2011
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 24, 2019
John W. Hinton appeals from the dismissal as untimely of his petition
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
Hinton maintains that while his petition is facially untimely, he has satisfied at
least two of the time-bar exceptions of the PCRA. We affirm.
The PCRA court aptly summarized the facts and procedural history of
this case as follows:
On February 9, 2012, [Hinton] pleaded guilty to three counts of
aggravated indecent assault of a child, 18 Pa.C.S.A. § 3125(b).
[Hinton] sexually assaulted three children who were in his care
and custody between May 2010 and July 2011. At the time of
incidents, the victims were 4, 5, and 8 years of age. [Hinton] was
sentenced on June 14, 2012, to inter alia, 10 to 20 years’
incarceration in a State Correctional Institution for each of the
three counts to which [Hinton] pleaded guilty. This [c]ourt ordered
that [Hinton’s] sentences be served consecutively to one another,
thereby creating an aggregate sentence of 30 to 60 years’
incarceration in a State Correctional Institution.
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[Hinton] did not file a post-sentence motion or direct appeal.
PCRA Ct. Op., filed 3/8/19, at 1. Hinton filed the instant petition on July 17,
2018, seeking relief under Alleyne v. United States, 133 S.Ct. 2151 (2013).
The court appointed counsel who filed a Turner/Finley letter and a motion
to withdraw as counsel.1 The court granted counsel’s motion and held a
Grazier hearing.2 The court then denied Hinton’s petition as untimely, and
also concluded that even if it were timely, Hinton would not be due relief under
Alleyne. This timely appeal followed.
Hinton raises the following issues:
1. Did the P.C.R.A. Court err in denying the Post Conviction Relief
Act petition without a hearing by misapprehending the
retrospective application in Commonwealth v. Hopkins, 117
A.3d 247 ([Pa.] 2015)[,] when it’s [sic] paradigm, Alleyne v.
United States, 133 S.Ct. 2151 (2013)[,] created a
“substantive rule,” which “the Constitution requires State
Collateral Review Courts to give retroactive effect to that rule?”
2. Did the P.C.R.A. Court err in denying the Post Conviction Relief
Act Petition without a hearing when Mr. Hinton filed the instant
Post Conviction Relief Act Petition timely by filing within sixty
(60) days of learning of the Supreme Court of Pennsylvania’s
decision in Commonwealth v. Hopkins, 117 A.3d 247 ([Pa.]
2015)?
3. Did the P.C.R.A. Court err in denying the Post Conviction Relief
Act Petition without a hearing when Mr. Hinton contends that
through the Court’s inherent power, the P.C.R.A. Court always
retains jurisdiction to correct his patently unconstitutional, and
therefore illegal sentence?
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Hinton’s Br. at 4 (proposed answered omitted).
When reviewing the denial of PCRA relief, “[w]e must determine whether
the PCRA court’s ruling is supported by the record and free of legal error.”
Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super. 2018) (citations
omitted). We conclude the PCRA court properly dismissed Hinton’s PCRA
petition as untimely.
A court lacks jurisdiction to address the merits of a PCRA petition filed
more than one year after the judgment of sentence becomes final unless the
petitioner pleads and proves at least one of three time-bar exceptions.
Commonwealth v. Pursell, 749 A.2d 911, 913-14 (Pa. 2000). “[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.”
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (quoting 42
Pa.C.S.A. § 9545(b)(3)).
Hinton’s judgment of sentence became final on July 16, 2012, when the
time to file a direct appeal with this Court expired.3 See Pa.R.A.P. 1113(a).
Thus, he had until July 16, 2013, to file a timely petition. The instant petition,
which Hinton filed five years after the deadline, is patently untimely and the
____________________________________________
3 The 30th day after sentencing was a Saturday. Therefore, Hinton had until
the following Monday to file a timely appeal. See Pa.R.A.P. 107 (making
Chapter 19 of Title 1 of Pennsylvania Consolidated Statutes applicable to the
Rules of Appellate Procedure); 1 Pa.C.S.A. § 1908 (“Whenever the last day of
any such period shall fall on Saturday or Sunday, . . . such day shall be omitted
from the computation”).
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PCRA court lacked jurisdiction to consider the petition unless Hinton pleaded
and proved at least one of the time-bar exceptions. See Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Hinton claims that he qualifies for two exceptions. First, Hinton contends
that he pleaded and proved the newly-recognized constitutional right
exception. See Hinton’s Br. at 9; see also 42 Pa.C.S.A. § 9545(b)(1)(iii). This
exception applies where either the United States Supreme Court or the
Pennsylvania Supreme Court has held that a newly-recognized constitutional
right applies retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(iii).
Hinton maintains that “[he] must be afforded the constitutional right of
retroactive application of Alleyne, due to fact that the ‘new rule’ announced
is a ‘substantive rule,’ and therefore applies retroactively to cases on collateral
review.” Hinton’s Br. at 14. This claim fails as neither the United States
Supreme Court nor the Pennsylvania Supreme Court has held that Alleyne
applies retroactively. Indeed, our Supreme Court held just the opposite – that
Alleyne does not apply retroactively to cases on collateral review.
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Thus, the
newly-recognized constitutional right exception offers Hinton no relief.
Second, Hinton claims that he has satisfied the newly-discovered fact
exception. This exception requires the petitioner to plead and prove that the
facts supporting the merits claim were unknown to the petitioner and the
petitioner could not have ascertained them with due diligence. 42 Pa.C.S.A. §
9545(b)(1)(ii). Hinton maintains that he “raises the ‘newly discovered fact’ of
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his sentence becoming illegal in light of the Supreme Court of Pennsylvania’s
decision in Commonwealth v. Hopkins, 117 A.3d 247 ([Pa. 2015]).”
Hinton’s Br. at 15.
This argument also warrants no relief, for several reasons. First, court
decisions do not constitute “facts” for purposes of the newly-discovered fact
exception. See Commonwealth v. Kretchmar, 189 A.3d 459, 467
(Pa.Super. 2018) (stating judicial decisions do not constitute new facts under
Section 9545(b)(1)(ii)). Moreover, Hopkins has no application to Hinton’s
case. That case held a mandatory sentencing provision for delivering or
possessing a controlled substance in a drug free school zone, 18 Pa.C.S.A. §
6317, unconstitutional under Alleyne. See Hopkins, 117 A.3d at 258.
However, Hinton was not sentenced under Section 6317. The PCRA court did
not err in denying Hinton’s untimely PCRA petition. See Washington, 142
A.3d at 820.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2019
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