Com. v. Ford, H.

J-S76033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD FRANKLIN FORD
Appellant No. 1337 EDA 2016
Appeal from the PCRA Order April 19, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003457-2002
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 18, 2016
Appellant appeals pro se from the order entered in the Court of
Common Pleas of Chester County dismissing his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history are as follows: Following
Appellant’s arrest in connection with a robbery occurring on June 24, 2002, a
jury convicted Appellant of robbery and conspiracy, and on June 30, 2003,
he was sentenced to twenty-five years to fifty years in prison. Appellant
filed a direct appeal to this Court, and on July 12, 2004, this Court affirmed
Appellant’s judgment of sentence. On April 19, 2005, the Supreme Court
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*
Former Justice specially assigned to the Superior Court.
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denied Appellant’s petition for allowance of appeal; Appellant did not petition
the United States Supreme Court for a writ of certiorari.
Thereafter, Appellant filed multiple PCRA petitions and appeals, none
of which resulted in Appellant being granted relief. On March 7, 2016,1
Appellant filed the instant pro se PCRA petition, and the PCRA court provided
Appellant with notice of its intent to dismiss the petition without an
evidentiary hearing. Appellant filed a pro se response, and by order entered
on April 19, 2016, the PCRA court dismissed Appellant’s petition. This timely
pro se appeal followed.
Preliminarily, we must determine whether Appellant’s instant PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is
clear; we are limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and
quotation marks omitted).
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500,
837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective
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1
Although the petition was time-stamped on March 10, 2016, we deem the
petition to have been filed on March 7, 2016, when Appellant handed it to
prison officials. See Commonwealth v. Patterson, 931 A.2d 710(Pa.Super. 2007) (discussing the prisoner mailbox rule).
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January 19, 1996, provide that a PCRA petition, including a second or
subsequent petition, shall be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed
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 the time for seeking review.” 42 Pa.C.S.A. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
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v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation
omitted).
In the case sub judice, Appellant was sentenced on June 30, 2003, and
this Court affirmed his judgment of sentence on July 12, 2004. Appellant
filed a petition for allowance of appeal, which our Supreme Court denied on
April 19, 2005. Thereafter, Appellant did not file a petition for a writ of
certiorari with the United States Supreme Court. Therefore, Appellant’s
judgment of sentence became final ninety days later, on July 18, 2005,
when the time for seeking certiorari from the United States Supreme Court
expired. See 42 Pa.C.S.A. § 9545(b)(3) (indicating when judgment of
sentence becomes final); U.S. Sup. Ct. R. 13(1) (stating “a petition for a writ
of certiorari to review a judgment in any case. . .is timely when it is filed
with the Clerk of this Court within 90 days after entry of the judgment[ ]”).
Thus, Appellant had until July 18, 2006, to file a timely PCRA petition;
however, Appellant filed the instant PCRA petition on March 7, 2016, and,
therefore, it is patently untimely under the PCRA. See 42 Pa.C.S.A. §
9545(b)(1); Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d
780 (2000) (holding a PCRA petition filed more than one year after judgment
of sentence becomes final is untimely and the PCRA court lacks jurisdiction
to address the petition unless the petitioner pleads and proves a statutory
exception to the PCRA time-bar).
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This does not end our inquiry, however, as Appellant, citing to
Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), attempts
to invoke the “new constitutional right” exception of 42 Pa.C.S.A. §
9545(b)(1)(iii). To invoke this exception, the petitioner must plead and
prove that “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)(iii).
Moreover, a petitioner asserting a timeliness exception must file a petition
within sixty days of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2).
We conclude Appellant met the initial 60-day threshold. “When the
exception asserted is Section 9545(b)(1)(iii), the 60–day rule runs from the
date of the germane decision.” Commonwealth v. Secreti, 134 A.3d 77,
80 (Pa.Super. 2016) (citation omitted). The United States Supreme Court
filed its opinion in Montgomery on January 25, 2016, and Appellant filed
the instant PCRA petition on March 7, 2016. Accordingly, Appellant asserted
his timeliness exception within sixty days of the date the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2).
However, as the PCRA court correctly observed, the dictates of
Montgomery are inapplicable to Appellant. In Montgomery, the High
Court held that its ruling in Miller v. Alabama, ___ U.S. ___, 132 S.Ct.
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2455 (2012), is to be given retroactive effect on collateral review. In Miller
v. Alabama, 132 S.Ct. at 2460, the United States Supreme Court held that
“mandatory life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment's probation against ‘cruel and
unusual[’] punishments.” In the case sub judice, Appellant, who was born in
May of 1950, was not a juvenile when he committed his crimes on June 24,
2002. Moreover, Appellant was sentenced to twenty-five years to fifty years
in prison, as opposed to life in prison without the possibility of parole.
Accordingly, Appellant has failed to plead and prove he is entitled to the new
constitutional right exception in light of Montgomery.
Appellant additionally asserts that he is entitled to the “new
constitutional right” exception of 42 Pa.C.S.A. § 9545(b)(1)(iii), in light of
the United States Supreme Court’s opinion in Alleyne v. United States,
___ U.S. ___, 133 S.Ct. 2151 (2013). In Alleyne, the High Court held that
any fact, other than a prior conviction, that triggers application of a
mandatory minimum sentence must be proven beyond a reasonable doubt
before the factfinder.
We conclude Appellant has not met the initial 60-day threshold.
Alleyne was decided on June 17, 2013, and Appellant filed the instant PCRA
petition on March 7, 2016. Accordingly, Appellant has not asserted his
timeliness exception within sixty days of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2). Further, to the extent Appellant
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believes the Supreme Court’s retroactivity analysis in Montgomery renders
Alleyne retroactive, we note that neither the United States Supreme Court
nor the Pennsylvania Supreme Court has held that Alleyne applies
retroactively to untimely PCRA petitions. Indeed, our Supreme Court
recently held that Alleyne does not apply retroactively to cases pending on
collateral review. Commonwealth v. Washington, ___ Pa. ___, 142 A.3d
810 (2016).
Accordingly, because Appellant has not established any of the
timeliness exceptions to the PCRA time-bar, the PCRA court lacked
jurisdiction to address his claims2 and we affirm the dismissal of Appellant's
instant untimely PCRA petition.
Affirmed.
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2
To the extent Appellant alleges generally that his sentence is illegal, we
note that our Supreme Court has held specifically that, “[a]lthough legality
of sentence is always subject to review within the PCRA, [legality of
sentencing] claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.” Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214,
223 (1999). In the case sub judice, Appellant has not met any of the
applicable exceptions to the PCRA, and therefore, we may not review his
challenges to the legality of his sentence.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2016
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