Com. v. Custer, D.

J. S58044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DEAN LEROY CUSTER, : No. 803 WDA 2018
:
Appellant :
Appeal from the PCRA Order, April 17, 2018,
in the Court of Common Pleas of Mercer County
Criminal Division at No. CP-43-CR-0001279-2003
BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 1, 2018
Dean Leroy Custer appeals pro se from the order filed in the Court of
Common Pleas of Mercer County that dismissed his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
The procedural history as set forth by a previous panel of this court is
as follows:
On May 12, 2004, [a]ppellant was convicted of
numerous counts of rape, involuntary deviate sexual
intercourse (IDSI), and other related sexual assault
charges.[1] On October 28, 2004, [a]ppellant was
sentenced to thirty to sixty years’ imprisonment to
be followed by sixty years’ probation. This Court
affirmed the judgment of sentence and our state
1 18 Pa.C.S.A. §§ 3121(a)(1), 3121(a)(2), 3121(a)(6), 3123(a)(1),
3123(a)(2), now 3123(b), and 3123(a)(7), respectively.
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Supreme Court denied [a]ppellant’s petition for
allowance of appeal on September 12, 2006.
Commonwealth v. Custer, 169 A.3d 1175 (Pa.Super. 2017) (Unpublished
memorandum) at 1.
Appellant filed three prior PCRA petitions that were denied. In the
third petition, this court affirmed the denial as the petition was untimely and
did not qualify under any of the exceptions to timeliness because Alleyne v.
United States, 570 U.S. 99 (2013) does not apply retroactively to cases on
collateral review. Custer at 2, 5-6.
While appellant’s third PCRA petition was on appeal to this court,
appellant filed a fourth PCRA petition on November 7, 2016. Appellant
conceded that his petition was untimely but alleged that his petition met an
exception to the timeliness requirement because the Supreme Court of
Pennsylvania and this court had ruled that mandatory sentencing was
unconstitutional and that these cases were previously unknown to him.
On November 10, 2016, the PCRA court stayed action on the fourth
petition until this court ruled on appellant’s appeal from his third PCRA
petition. On December 7, 2017, the PCRA court lifted the stay after this
court affirmed the dismissal of the third PCRA petition and our supreme
court denied appellant’s petition for allowance of appeal. Commonwealth
v. Custer, 170 A.3d 1010 (Pa. 2017).
On March 26, 2018, the PCRA court informed appellant of its intent to
dismiss the PCRA petition. On April 9, 2018, appellant filed an amended
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petition and alleged that he satisfied “one and/or two” of the exceptions to
the PCRA time-bar. (Amended Petition, 4/9/18 at 3.) By order dated
April 17, 2018, the PCRA court dismissed the PCRA petition.
On May 3, 2018, appellant filed a notice of appeal. On June 13, 2018,
the trial court issued an order that stated that it was not filing an additional
opinion and referred to the order dated April 17, 2018.
Appellant raises the following issues for this court’s review:
1. Whether [the PCRA] court arred [sic] by
sentencing [appellant] to illegal mandatory
minimum sentences of 30-60 [years] of
incarceration. Then imposed a second illegal
sentence of 60 [years] of probation after
incarceration[?]
2. Whether [the PCRA] court had the right to
knowingly appoint effective countsel [sic] that
withdrew numerous times[?]
3. Whether D.A. Karson Jr. had the right to
assign [sic] himsalf [sic] to [appellant’s] PCRA
after being prosecuted by PA state attorney
general for obstructing of administration of
law, hindering apprehension of prosecution
17 second degree charges[?]
4. Whether D.A. Karson, Jr., P.d. [sic]
Davis, Pd [sic] Bogaty, X-A.D.A. [sic]
[M]c[E]wen, and retired Judge Reed all
commited [sic] governmental interference by
noncomplyence [sic] to [appellant’s] letters
dated from 6-27 through 6-30-17 and 8-15-17
in researching [appellant’s] P.S.I. report[?]
5. Whether [the] trial court properly sentenced
[appellant] without use of PSI report[?]
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Appellant’s brief at 3-4.2
All PCRA petitions must be filed within one year of when a defendant’s
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “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 the time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme Court of
Pennsylvania has held that the PCRA’s time restriction is constitutionally
sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004). In
addition, our supreme court has instructed that the timeliness of a PCRA
petition is jurisdictional. If a PCRA petition is untimely, a court lacks
jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,
120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely
PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).
Here, the trial court sentenced appellant on October 28, 2004. After
this court affirmed, our supreme court denied appellant’s petition for
allowance of appeal on August 23, 2006. Commonwealth v. Custer, 905
A.2d 499 (Pa. 2006). Appellant did not seek further review with the
Supreme Court of the United States. Consequently, appellant’s sentence
became final on November 21, 2006, after the ninety-day period in which he
2 Although the pages of appellant’s brief are not numbered, we have
numbered the pages in order to facilitate locating the applicable pages.
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was allowed to seek review with the Supreme Court of the United States
expired. See 42 Pa.C.S.A. § 9543(b)(3); U.S. Sup.Ct. R. 13(1). Appellant
needed to file his PCRA petition by November 21, 2007. This petition, filed
on November 7, 2016, is facially untimely. As a result, the PCRA court
lacked jurisdiction to review appellant’s petition, unless appellant pleads and
proves that he meets one of the following exceptions to the time
requirement:
(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;
(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). Section 9545 also mandates that any
petition filed under these exceptions must be filed within 60 days of the date
the claim could have been presented. Id. at § 9545(b)(2).
With respect to the issue of whether the PCRA petition was untimely,
appellant asserts that he received a mandatory minimum sentence which
was unconstitutional based on Alleyne v. United States, 570 U.S. 99-5-
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(2013), that constitutional issues cannot be waived or time barred, and that
mandatory minimum sentences were not ruled unconstitutional until 2016.
To the extent appellant is arguing that his sentence is illegal, this claim
does not allow him to skirt the timeliness requirement. “[E]ven claims that
a sentence was illegal, an issue deemed incapable of being waived, are not
beyond the jurisdictional time restrictions.” Commonwealth v. Grafton,
928 A.2d 1112, 1114 (Pa.Super. 2007), citing Commonwealth v. Fahy,
737 A.2d 214 (Pa. 1999); Commonwealth v. Beck, 848 A.2d 987(Pa.Super. 2004). Therefore, appellant’s illegal sentencing claim does not
operate as an independent exception to the PCRA’s jurisdictional time-bar.
Furthermore, as this court already stated when it affirmed the dismissal of
his prior petition, the Pennsylvania Supreme Court determined in
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), that
Alleyne does not apply retroactively to cases pending on collateral review.
Therefore, we find that appellant failed to plead or prove that he met
an exception to the timeliness requirements of the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2018
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