Com. v. Cannon, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RICHARD A. CANNON, :
:
Appellant :
: No. 1316 WDA 2015
Appeal from the Order August 12, 2015
in the Court of Common Pleas of Mercer County Criminal Division
at No(s): CP-43-CR-0001003-2004
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 1, 2016
Appellant, Richard A. Cannon, appeals from the order of the Mercer
County Court of Common Pleas dismissing his second Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, petition as meritless. Appellant
challenges his 2005 mandatory minimum sentences, imposed under 18
Pa.C.S. § 7508(a) (“Drug trafficking sentencing and penalties”), and asserts
those sentences are now unconstitutional in light of Alleyne v. United
States, 133 S. Ct 2151 (2013), and subsequent decisions by this Court.
See, e.g., Commonwealth v. Fennell, 105 A.3d 13, 18-20 (Pa. Super.
2014), appeal denied, 121 A.3d 494 (Pa. 2015). We affirm.
*
Former Justice specially assigned to the Superior Court.
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This Court previously summarized the relevant procedural history of
this appeal.
On August 18, 2005, Appellant was convicted by a jury
of seven counts of possession with intent to deliver
controlled substances, 35 P.S. § 780-113(a)(30), seven
counts of possession of controlled substances, 35 P.S. §
780-113(a)(16), and six counts of use of a communication
facility, 18 Pa.C.S.[ ] § 7512(a). Appellant was
subsequently sentenced to an aggregate term of twelve
years to twenty-five years imprisonment[, which included
several mandatory minimum sentences of five years’
imprisonment based on 18 Pa.C.S. § 7508(a)(3)]. Trial
counsel, William G. McConnell, Jr., Esquire, filed post-
sentence motions on Appellant’s behalf, which included a
claim that Appellant’s sentence should be reduced because
the Commonwealth engaged in unlawful sentence
entrapment. Appellant’s post-sentence motion was denied
without hearing on October 26, 2005.
On November 7, 2005, Appellant attempted to file a
timely appeal of his judgment of sentence. The appeal
was never filed or processed. As a result, Appellant filed a
PCRA petition, and his direct appeal rights were reinstated
nunc pro tunc. Appointed counsel, Randall T. Hetrick,
Esquire, filed a notice of appeal and concise statement of
errors complained of on appeal pursuant to Pa.R.[A].P.
1925(b) for Appellant. On February 6, 2008, this Court
denied the appeal, affirming Appellant’s judgment of
sentence. [Commonwealth v. Cannon, 1975 WDA 2006
(Pa. Super. Feb. 6, 2008)]. Appellant filed a petition for
allowance of appeal with the Supreme Court, which was
denied on October 14, 2008. [Commonwealth v.
Cannon, 145 WAL 2008 (Pa. Oct. 14, 2008)].
On December 30, 2009, PCRA counsel, Scott Coffey,
Esquire, filed a PCRA petition on behalf of Appellant.
Attorney Coffey then filed an amended PCRA petition on
January 27, 2010, in which he raised a claim that
“trial/sentencing/post sentencing counsel was [sic]
ineffective for failing to raise a claim that the
Commonwealth manipulated [Appellant’s] sentence by
waiting until he had committed 7 drug transactions over a
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four month period, resulting in an increase of the
mandatory minimum sentences requested from 5 years to
32 years (the actual mandatory minimum imposed was 12
years).”
Commonwealth v. Cannon, 713 WDA 2010 (Pa. Super. Jan. 25, 2011)
(unpublished memorandum at 1-3). On April 8, 2010, The PCRA Court
denied Appellant’s first PCRA petition following an evidentiary hearing. Id.
at 3. This Court affirmed, and the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal. Id. at 8; see also
Commonwealth v. Cannon, 598 WAL 2011 (Pa. Mar. 7, 2012)
On July 27, 2015, Appellant filed the pro se “petition/motion to vacate
judgment of sentence—motion to set aside the mandatory minimum,” which
gives rise to this appeal.1 On August 12, 2015, the PCRA court entered a
memorandum opinion and order denying relief. The court concluded it was
“bound by stare decisis to follow” Commonwealth v. Riggle, 119 A.3d
1059 (Pa. Super. 2015), and find no relief was due because Alleyne and its
Pennsylvania progeny did not apply retroactively. See Order, 8/12/15;
PCRA Ct. Op., 8/12/15, at 4 (unpaginated). Appellant timely filed a notice of
appeal and a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant, in his pro se brief, presents the following question for
review: “Is Appellant’s mandatory minimum sentence illegal and
1
Although Appellant’s filing was received and docketed by the court on June
29, 2015, the record contains an envelope bearing a postmark dated June
27th, which we adopt as the date of filing. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).
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unconstitutional since 18 Pa.C.S.[ ] § 7508 has been declared
unconstitutional by recent Superior Court decisions?” Appellant’s Brief at 5.
Appellant cites to Alleyne, refers to this Court’s decisions invalidating
mandatory minimum sentences, and asserts his sentences are similarly
subject to correction. See id. at 10-11. We are constrained to disagree.
It is well settled that the PCRA
provides for an action by which persons convicted of
crimes they did not commit and persons serving illegal
sentences may obtain collateral relief. The action
established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose
that exist when this subchapter takes effect, including
habeas corpus and coram nobis.
42 Pa.C.S. § 9542; see also 42 Pa.C.S. § 6503(b) (“Where a person is
restrained by virtue of sentence after conviction for a criminal offense, the
writ of habeas corpus shall not be available if a remedy may be had by post-
conviction hearing proceedings authorized by law.”). Pennsylvania courts
must “evaluate any post-conviction petition under the Post Conviction Relief
Act (PCRA), regardless of the title of the document filed.” Williams v. Erie
Cnty. Dist. Attorney’s Office, 848 A.2d 967, 969 (Pa. Super. 2004)
(citation omitted); accord Commonwealth v. Rivera, 802 A.3d 629, 633
(Pa. Super. 2002).
Appellant’s present claim for relief from the application of a mandatory
minimum sentence is cognizable under the PCRA. Cf. Commonwealth v.
Ford, 947 A.2d 1251, 1252-53 (Pa. Super. 2008); Commonwealth v.
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Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Therefore, his instant pro se
“petition/motion” must be regarded as a PCRA petition, his second. See
Williams, 848 A.2d at 969; Rivera, 802 A.3d at 633.
Consequently, our standard of review is as follows. “[W]e examine
whether the PCRA court’s determination is supported by the record and free
of legal error.” Miller, 102 A.3d at 992 (citations and quotation marks
omitted). “[T]his Court may affirm the decision of the PCRA Court if it is
correct on any basis.” Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.
Super. 2000); see also Commonwealth v. Callahan, 101 A.3d 118, 121
(Pa. Super. 2014) (noting this Court may raise question of timeliness under
PCRA sua sponte).
Pennsylvania law makes clear that when “a PCRA
petition is untimely, neither this Court nor the trial court
has jurisdiction over the petition.” . . . [“A]n untimely
petition may be received when the petition alleges, and the
petitioner proves, that any of the three limited exceptions
to the time for filing the petition, set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(i), (ii), and (iii), are met.” The PCRA
provides, in relevant part, as follows.
* * *
(b) Time for filing petition.—
(1) Any petition under this subchapter,
including a second or subsequent petition, shall
be filed within one year of the date the
judgment becomes final, unless the petition
alleges and the petitioner proves that:
(i) the failure to raise the claim previously
was the result of interference by
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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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.
Miller, 102 A.3d at 993 (quoting 42 Pa.C.S. § 9545(b)(1)(i)-(iii), (2)).
Section 9545(b)(1)(ii) codifies the “previously unknown facts”
exception. To invoke that provision,
the petitioner must establish that: 1) the facts upon which
the claim was predicated were unknown and 2) could not
have been ascertained by the exercise of due diligence. If
the petitioner alleges and proves these two components,
then the PCRA court has jurisdiction over the claim under
this subsection.
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citation
omitted) (emphasis added). However, judicial decisions do not constitute
facts for the purposes of Section 9545(b)(1)(ii). See id. Thus, the mere
discovery of recent case law will not provide a basis for asserting a PCRA
timeliness exception. See id.-6-
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Section 9545(b)(1)(iii) establishes a timeliness exception for newly
recognized constitutional rights. To assert the exception, “a petitioner must
prove that there is a ‘new’ constitutional right and that the right ‘has
been held’ by that court to apply retroactively.” Miller, 102 A.3d at
994 (citation omitted) (emphasis added).
In Miller, this Court concluded Alleyne does not establish a timeliness
exception under Section 9545(b)(1)(iii). Id. at 995. We reasoned,
“[N]either our Supreme Court, nor the United States Supreme Court has
held that Alleyne is to be applied retroactively to cases in which the
judgment of sentence had become final.” Id.
Instantly, Appellant’s judgment of sentence became final on January
12, 2009,2 and he had until January 12, 2010, to file a facially timely PCRA
petition. See 42 Pa.C.S. § 9545(b)(1), (3). Therefore, he was required to
plead and prove a timeliness exception under 42 Pa.C.S. § 9545(b) to
establish jurisdiction over his July 27, 2015 motion/petition.3 This he did not
do. Accordingly, this Court must affirm the PCRA court’s dismissal of
2
As noted above, this Court affirmed the judgment of sentence on February
6, 2008, and the Pennsylvania Supreme Court denied allowance of appeal on
October 14, 2008. Appellant did not petition the United States Supreme
Court for writ of certiorari in his direct appeal. We emphasize Appellant’s
conviction became final before the United States Supreme Court decided
Alleyne on June 17, 2013. See Commonwealth v. Ruiz, ___ A.3d ___,
___, 2015 WL 9632089 (Pa. Super. Dec. 30, 2015).
3
Moreover, Appellant’s petition was not filed by August 16, 2013, the
sixtieth day after Alleyne was decided. See 42 Pa.C.S. § 9545(b)(2).
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Appellant’s second PCRA petition. See Callahan, 101 A.3d at 121;
Hutchins, 760 A.2d at 55.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: March 1, 2016
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