Com. v. Thorpe, J.

J-S34010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JERLION THORPE
Appellant No. 1938 EDA 2016
Appeal from the PCRA Order May 20, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0604861-2001
BEFORE: BOWES, SOLANO, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 14, 2017
Jerlion Thorpe appeals from the order denying his PCRA petition as
untimely. We affirm.
We previously set forth the facts underlying Appellant’s convictions as
follows.
Appellant is the biological father of the victim, A.G., who was
born on August 8, 1986. The victim testified at trial regarding
multiple acts of sexual abuse Appellant committed upon her from
1999 until 2001. The victim recounted that the abuse began
when she was twelve years old and took place when she visited
Appellant on the weekends at his home located on 42nd Street
in Philadelphia. There, Appellant would show the victim
pornographic movies. He would then touch her breasts under
her clothing and rub his penis against her vagina. She also
testified that Appellant would put his penis between the lips of
her vagina but not fully into her vagina. Appellant also rubbed
his penis against her buttocks. Appellant also told the victim that
if she ever told anyone about the abuse her mother would go to
jail. Subsequently, Appellant moved in with the victim and her
* Retired Senior Judge specially assigned to the Superior Court.
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mother at their home on 740 South 15th Street. The victim
revealed that the abuse continued. However, it occurred less
than once a week.
Later, Appellant moved out of the home on 15th Street to a
residence located at 3912 Howland Street. The victim would visit
Appellant there on the weekends. The victim testified that
Appellant abused her during these visits. She also recalled that
one time Appellant put his penis into her mouth. The victim also
testified that she would rub Appellant’s back while he was naked
and that he would rub her back while straddled on top of her.
He would then ejaculate on her back and lick the sperm off of
her.
Appellant and her brother later moved into Appellant’s home on
Howland Street. The abuse continued there. The victim tried to
avoid the abuse by inviting friends over or staying overnight at a
friend’s house. The victim testified that she never told her
mother what was happening because she was afraid of what her
mother might do to Appellant. In April of 2001, the victim told
her mentor, Sandy Short, about the abuse. The victim spoke
with DHS and Detective Dave Thomas of the Special Victims Unit
about the abuse. The victim also told Detective Thomas that she
kept a diary at her mother’s home. One entry, which the victim
had scribbled out, was written in February 2000. This entry was
made following an occasion in which Appellant forbid the victim
to go to a friend’s house because he felt that he and the victim
did not spend enough “quality” time together. The entry read,
“When he tried to touch me before. F--k a quality time, you
pervert.” The victim testified that she wondered why Appellant
would say anything about quality time when he was abusing her.
Commonwealth v. Thorpe, 911 A.2d 187 (Pa.Super. 2006) (unpublished
memorandum), at 2-3.
Appellant was charged with a litany of sexual crimes and proceeded to
a bench trial, after which he was convicted of sexual assault, incest, indecent
assault, endangering welfare of children, and corruption of minors. He was
sentenced to an aggregate term of seven to fourteen years incarceration.
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Following our decision on direct appeal, Appellant sought review with our
Supreme Court, which denied his petition on February 28, 2007.
Commonwealth v. Thorpe, 918 A.2d 745 (Pa.Super. 2007). Appellant did
not seek review with the United States Supreme Court.
Thereafter, Appellant unsuccessfully sought PCRA relief, and we
affirmed on appeal. Commonwealth v. Thorpe, 83 A.3d 1071 (Pa.Super.
2013). The instant petition was filed on August 3, 2015. The PCRA court
issued a notice of intent to dismiss, and, on May 20, 2016, dismissed the
petition as untimely. Appellant and the PCRA court complied with Pa.R.A.P.
1925, and the matter is ready for our review. Appellant presents two issues
for our consideration.
1. Where Appellant has been determined to have been entitled
to a first petition on prior petitions and becomes eligible to file
another petition based upon newly discovered and or declared
newly discovered evidence is he entitled as a matter of due
process to first petition status on such petition entitled to a
hearing and counsel?
2. May the Commonwealth legislature suspend the state and or
constitutional habeas corpus constitutional provisions?
Appellant’s brief at 4.
It is well-settled that all PCRA petitions must be filed within one year
of the date a defendant’s judgment of sentence becomes final, unless an
exception applies. 42 Pa.C.S. § 9545(b)(1). The time-bar is jurisdictional in
nature; therefore, “when a PCRA petition is untimely, neither this Court nor
the trial court has jurisdiction over the petition.” Commonwealth v.
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Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation and quotation marks
omitted). Timeliness presents a question of law, which we review de novo
and our scope of review is plenary. Commonwealth v. Hudson, 156 A.3d
1194, 1197 (Pa.Super. 2017).
Appellant’s conviction became final when his time period for seeking
review with the United States Supreme Court expired, 42 Pa.C.S. §
9545(b)(3), which was ninety days after our Supreme Court denied his
petition for allowance of appeal. U.S.Sup.Ct.R. 13(1). Thus, his sentence
became final on May 29, 2007. Accordingly, the present petition was
patently untimely unless one of the PCRA exceptions applied.
Herein, Appellant invoked § 9545(b)(1)(iii), which applies when a new
constitutional right has been recognized to apply retroactively by either the
Supreme Court of Pennsylvania or the United States. Appellant’s petition
cited Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which applied
Alleyne v. United States, 133 S.Ct. 2151 (2013) (jury must find beyond a
reasonable doubt any facts that increase a mandatory minimum sentence).
Hopkins determined that this Commonwealth’s mandatory sentencing
statutes were not severable from the portions that are unconstitutional post-
Alleyne. The PCRA court dismissed the petition, finding that
Hopkins/Alleyne did not satisfy the exception.
On appeal, Appellant’s argument assailing that conclusion is confusing
and unclear. Neither of his appellate issues directly mentions any exception
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to the time-bar; instead, Appellant broadly asserts that Pennsylvania’s entire
collateral relief scheme is unconstitutional, in that (1) it violates due process
by imposing a time limitation in which to seek collateral relief, and (2) the
legislature lacked the authority to eliminate the writ of habeas corpus by
enacting the PCRA and its attendant statutory requirements. He also
maintains that, since he was entitled to have the PCRA court hear the issue
on the merits, he was entitled to counsel as well.
We first note that the PCRA court correctly determined that the actual
exception pled in the petition did not create jurisdiction. See
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne does
not satisfy the § 9545(b)(1)(iii) exception). Therefore, the PCRA court
correctly dismissed the petition.1
To the extent Appellant now seeks to invoke alternative theories on
appeal justifying our consideration of the merits of his claims, those have
been waived. “[E]xceptions to the time bar must be pled in the PCRA
petition, and may not be raised for the first time on appeal.”
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super. 2007); see also
Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are
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1
Additionally, it is unclear if Appellant was actually sentenced to a
mandatory minimum sentence; he claims his “conviction was
unconstitutional under Alleyne[.]” Appellant’s brief at 5 (emphasis added).
Alleyne has to do with sentences, not convictions.
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waived and cannot be raised for the first time on appeal). Therefore, his
challenges to the collateral relief statutory scheme have been waived.
Regardless, we note that, even if Appellant had properly presented
and preserved his constitutional claims, his precise arguments have been
rejected. Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998) (one-year
period satisfies due process as it affords enough time to prepare petition,
and the PCRA contains exceptions for misconduct, newly-discovered facts,
and constitutional changes).
Additionally, the significance of the one-year time limit with respect to
his claim is unexplained, as Alleyne simply does not apply to him in any
event. Appellant has overlooked the dividing line between convictions that
were pending on direct review when a new constitutional rule of criminal
procedure has been announced, and those whose convictions were final
when the rule was announced. “[A] new constitutional rule of criminal
procedure does not apply, as a general matter, to convictions that were final
when the new rule was announced.” Louisiana v. Montgomery, 136 S.Ct.
718 (2016). Finality is the key dividing line, and therefore even timely PCRA
petitioners are not entitled to Alleyne’s application. Commonwealth v.
Ciccone, 152 A.3d 1004 (Pa.Super. 2016) (en banc).
Thus, Appellant’s real objection has nothing to do with a limitation on
the ability to seek collateral relief but with the fact that his conviction was
final when Alleyne was issued. States are required to give retroactive effect
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only to new substantive rules. Montgomery, supra at 729 (“The Court
now holds that when a new substantive rule of constitutional law controls
the outcome of a case, the Constitution requires state collateral review
courts to give retroactive effect to that rule.”). The word “substantive” has a
particular meaning in this context and Alleyne does not fall within its
definition. Washington, supra. Accordingly, Appellant’s challenges are
misplaced.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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