Com. v. Scott, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THOMAS ANTHONY SCOTT :
:
Appellant : No. 586 WDA 2017
Appeal from the PCRA Order March 17, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003918-2011
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 27, 2018
Thomas Scott appeals from the order, entered in the Court of Common
Pleas of Allegheny County, dismissing his second petition1 filed under the Post
Conviction Relief Act (“PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.
Scott was tried before a jury and convicted of two counts each of assault
of a law enforcement officer, aggravated assault, and recklessly endangering
another person.2 On August 29, 2011, the court sentenced him to an
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1Scott’s petition was labeled a “Petition for Writ of Habeas Corpus or Coram
Nobis.” The PCRA court properly addressed it as a PCRA petition. See 42
Pa.C.S. § 9542 (PCRA is “sole means obtaining collateral relief and
encompasses all other common law and statutory remedies . . . including
habeas corpus and coram nobis.”).
2 18 Pa.C.S. §§ 2702.1, 2702, 2705, respectively.
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* Former Justice specially assigned to the Superior Court.
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aggregate term of imprisonment of 20-40 years.3 On direct appeal, this Court
affirmed the judgment of sentence. Commonwealth v. Scott, No. 1582
WDA 2011 (unpublished memorandum, filed June 18, 2013). On November
19, 2013, our Supreme Court denied Scott’s petition for allowance of appeal.
Commonwealth v. Scott, 80 A.3d 776 (Pa. 2013). See Pa.R.A.P. 1113(a),
42 Pa.C.S. § 5505.
On April 30, 2014, Scott filed a timely petition under the PCRA, which
was denied. On appeal, this Court affirmed the PCRA court’s denial of relief.
Commonwealth v. Scott, No. 1354 WDA 2014 (unpublished memorandum,
filed December 14, 2015). Scott filed another petition on February 24, 2016,
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3 The Sentencing Code provides, in relevant part:
(a) Mandatory sentence.—A person convicted of the following
offense shall be sentenced to a mandatory term of imprisonment
as follows:
18 Pa.C.S. § 2702.1(a) (relating to assault of law
enforcement officer) -not less than 20 years.
42 Pa.C.S. § 9719.1.
Section 2702.1 defines the crime of assault of a law enforcement officer in
the first degree as follows:
Assault of a law enforcement officer in the first degree.—A
person commits a felony of the first degree who attempts to
cause or intentionally or knowingly causes bodily injury to a
law enforcement officer, while in the performance of duty
and with knowledge that the victim is a law enforcement
officer, by discharging a firearm.
18 Pa.C.S. § 2702.1(a).
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but sought to withdraw it on April 12, 2016; the court granted Scott’s petition
to withdraw on June 20, 2016. Seven months later, on January 17, 2017,
Scott filed the instant petition, and the PCRA court filed a Pa.R.Crim.P. 907
notice of intent to dismiss on February 21, 2017. Scott filed an answer on
March 13, 2017, and the PCRA court denied the petition on March 20, 2017.
This appeal followed.
Scott raises the following issues for our review:
1. Are habeas corpus and coram nobis relief still
available for individuals whose PCRA counsel rendered
ineffective assistance?
2. Is applying the PCRA’s timeliness restriction to
individuals raising claims of ineffective assistance
when the challenged attorney’s act or omission took
place after the initial filing period elapsed,
unconstitutional?
3. When a defendant has a claim that would otherwise
entitle him to relief but has lost that claim due to
counsel’s error, is it unconstitutional to deny relief by
giving the interest of finality more weight than the
interests of justice, fundamental fairness, and
accurate results?
4. Since Alleyne v. United States, 133 S. Ct. 2151
(2013) was decided before the judgment of sentence
became final, did PCRA counsel render ineffective
assistance by failing to challenge [Scott’s] illegal
sentence?
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA court’s
decision is free of legal error. The PCRA court's findings will not be disturbed
unless there is no support for the findings in the certified record.
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Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014);
Commonwealth v. Brandon, 51 A.3d 231, 233 (Pa. Super. 2012).
A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date the underlying judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,
830 A.2d 1273, 1275 (Pa. Super. 2003). 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 time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3); see also
Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).
Here, Scott did not seek a writ of certiorari from the United States
Supreme Court. Therefore, his judgment of sentence became final on
February 17, 2014, when the 90-day period for Scott to file a petition for a
writ of certiorari expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R.
13(1). Thus, he had one year from that date, or until February 17, 2015, to
file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b).
Scott did not file the instant petition until January 17, 2017, almost three
years after his judgment of sentence became final. Accordingly, the PCRA
court had no jurisdiction to entertain the petition unless he pleaded and proved
one of the three statutory exceptions to the time bar:
(i) the failure to raise the claim previously was the result of
interference by 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;
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(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of the exceptions
to the time bar must be filed within 60 days of the date the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2). The time limits set forth in the
PCRA are jurisdictional in nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.
2014). Accordingly, the period for filing a PCRA petition is not subject to the
doctrine of equitable tolling and can be extended only by operation of one of
the above-enumerated exceptions to the PCRA time-bar. Id.
It is also settled that Alleyne does not invalidate a mandatory minimum
sentence when presented in an untimely PCRA petition. See Commonwealth
v. Miller, 102 A.3d 988 (Pa. Super. 2014). In concluding Alleyne does not
satisfy the new retroactive constitutional right exception to the PCRA’s one
year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Miller Court explained:
Even assuming that Alleyne did announce a new constitutional
right, neither 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. This is fatal
to Appellant’s argument regarding the PCRA time-bar. This Court
has recognized that a new rule of constitutional law is applied
retroactively to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically holds it to be
retroactively applicable to those cases.
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Id. at 995 (citations omitted) (emphasis supplied).4 Furthermore, this Court
also recently declined to give Alleyne retroactive effect to cases on timely
collateral review when the defendant’s judgment of sentence was finalized
before Alleyne was decided. See Commonwealth v. Riggle, 119 A.3d 1058
(Pa. Super. 2015).
Alleyne was decided on June 17, 2013, before Scott’s judgment of
sentence became final. The Newman Court instructed that Alleyne applies
only to cases pending on direct appeal as of June 17, 2013, the date of the
Alleyne decision. See Newman, 99 A.3d at 90. Thus, although Scott’s case
was pending on direct appeal (Alleyne was decided one day before this Court
affirmed on direct appeal, and five months before the Pennsylvania Supreme
Court denied his petition for allowance of appeal), he did not pursue a claim
under Alleyne, and PCRA counsel did not pursue that claim in Scott’s first
timely PCRA petition, which was filed on April 30, 2014, over one year after
the Alleyne decision. However, and as Scott acknowledges, it is well settled
that ineffective assistance of counsel is not recognized as an exception to the
PCRA time requirement. See Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 786 (Pa. 2000) (“[t]he allegation of ineffective assistance of counsel for
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4Because the timeliness requirement of the PCRA is jurisdictional and was not
met, the merits of this claim cannot be addressed by this Court. See Miller,
102 A.3d at 995 (stating that although Alleyne claims implicate the legality
of the sentence, courts cannot review such a claim where the court does not
have jurisdiction).
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failure to put forward available claims does not excuse compliance with the
timeliness requirements of the PCRA.”).5 Scott claims, therefore, that he
should be entitled to extraordinary relief, in the form of habeas corpus or
coram nobis. His attempt at circumventing the strictures of the statutory
framework of the PCRA, however, fails.
In Commonwealth v. Descardes, 136 A.3d 493 (Pa. 2016), our
Supreme Court held that the trial court’s treatment of a petition for writ of
error coram nobis as a PCRA petition was proper, citing the plain language of
section 9542 of the PCRA:
This subchapter 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 (emphasis added). See Descardes, 136 A.3d at 497-98.
The Court emphasized that it has “consistently held that, pursuant to the plain
language of Section 9542, where a claim is cognizable under the PCRA, the
PCRA is the only method of obtaining collateral review.” Id. at 501. It is not
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5 The Supreme Court of Pennsylvania has recognized a distinction between
situations in which counsel “has narrowed the ambit of appellate review by
the claims he has raised or foregone versus those instances [] in which counsel
has failed to file an appeal at all.” Commonwealth v. Halley, 870 A.2d 795
(Pa. 2005); Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999).
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the case here that Scott’s rights could only be vindicated outside the
framework of the PCRA. The fact that Scott’s claim was not pursued does not
change the fact that it could have been raised under the PCRA.6 Descardes,
supra.
We find no error. Lawson, supra; Brandon, supra. Scott’s petition
is untimely, without exception, and thus the PCRA had no jurisdiction to
entertain the petition. We, therefore, affirm the PCRA court’s order dismissing
Scott’s PCRA petition.
Order affirm.
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6 We note that in Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015),
this Court determined that the mandatory sentence provision at issue here
does not implicate Alleyne. We stated:
Section 9719.1 does not require proof of any additional elements
beyond those already required to convict a defendant of assault
of a law enforcement officer in the first degree under 18 Pa.C.S.
§ 2702.1(a). Nor does section 9719.1 follow the statutory scheme
that allowed a trial court to apply a mandatory minimum sentence
if the Commonwealth established the triggering fact for the
mandatory minimum by a preponderance of the evidence, which
this Court found unconstitutional under Alleyne. . . . Instead,
section 9719.1 simply describes the legislatively-required
sentence for an offender convicted of assaulting a law
enforcement officer pursuant to section 2702.1(a). Because it
does not require proof of facts that increase a mandatory
minimum sentence, and does not follow the statutory construction
that allowed trial courts to find such facts by a preponderance of
the evidence at sentencing, section 9719.1 is not unconstitutional
under Alleyne or its Pennsylvania progeny.
Id. at 785-86 (footnote omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2018
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