Com. v. Barker, R.

J-S43037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICCHEEM A. BARKER
Appellant No. 1807 MDA 2015
Appeal from the PCRA Order September 16, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001995-2009
CP-41-CR-0001996-2009
_____________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICCHEEM A. BARKER
Appellant No. 1808 MDA 2015
Appeal from the PCRA Order September 16, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001995-2009
CP-41-CR-0001996-2009
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 17, 2016
Riccheem Barker appeals from an order dismissing his petition under
the Post Conviction Relief Act (“PCRA”). We affirm.
J-S43037-16
On September 8, 2010, Barker pled guilty in two consolidated cases to
possession with intent to deliver (“PWID”) and third degree murder1 in
return for an aggregate sentence of 20-50 years’ imprisonment. Barker did
not move to withdraw his guilty plea or file a direct appeal. On July 12,
2011, Barker filed a PCRA petition alleging ineffective assistance of counsel.
On May 9, 2013, the PCRA court dismissed Barker’s petition without a
hearing. On April 8, 2014, this Court affirmed.
On June 24, 2014, Barker filed a second PCRA petition. On September
8, 2014, the PCRA court dismissed this petition. Barker appealed to this
Court, which affirmed on June 30, 2015.
On August 14, 2015, Barker filed a third PCRA petition, the petition
that is the focus of this appeal. Barker contended that his sentence is a
mandatory minimum sentence that is unconstitutional under Alleyne v.
United States, 133 S.Ct. 2151 (2013), and Commonwealth v. Hopkins,
117 A.3d 247 (Pa.2015). On August 26, 2015, the PCRA court issued a
notice of intent to dismiss Barker’s petition without a hearing. On
September 22, 2015, the court dismissed Barker’s petition. Barker filed a
timely appeal to this Court, and both Barker and the PCRA court complied
with Pa.R.A.P. 1925.
____________________________________________
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 2502(c).
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In this appeal, Barker argues that his sentence is unconstitutional
under Alleyne and Hopkins. Alleyne held that, other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved
beyond a reasonable doubt. Id., 131 S.Ct. at 2160-61. Hopkins held that
18 Pa.C.S. § 6317, which required a mandatory minimum sentence if certain
controlled substance crimes occurred within 1,000 feet of a school, was
unconstitutional under Alleyne. Barker claims that his sentences for PWID
and third degree murder are unconstitutional, because the court imposed
these sentences without a jury and under a preponderance of the evidence
standard.
We lack jurisdiction to review Barker’s Alleyne argument under the
PCRA’s statute of limitations, 42 Pa.C.S. § 9545(b). Section 9545 provides
that a petition “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final.” 42 Pa.C.S. §
9545(b)(1); accord Commonwealth v. Bretz, 830 A.2d 1273, 1275
(Pa.Super.2003). No court has jurisdiction to hear an untimely PCRA
petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079
(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,
1161 (Pa.2003)). A judgment is final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
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the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar provide for very limited
circumstances under which a court may excuse the late filing of a PCRA
petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late
filing of a petition will be excused if a petitioner alleges and proves:
(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. § 9545(b)(1)(i)-(iii). A petition invoking an exception to the
PCRA time bar must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Barker’s judgment of sentence became final on October 8, 2010, the
last day for filing a direct appeal to the Superior Court. The statute of
limitations for filing a PCRA petition expired on Tuesday, October 11, 2011.2
____________________________________________
2
The statute of limitations expired on October 11, 2011 because October 8,
2011 fell on a Saturday; October 9, 2011 fell on a Sunday; and October 10,
(Footnote Continued Next Page)
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The present PCRA petition, which was filed on August 14, 2015, is untimely
on its face.
Nor do any of the exceptions in section 9545(b)(1)(i-iii) apply to this
case. Barker does not allege that the government interference or newly
acquired evidence exceptions in section 9545(b)(1)(i-ii) apply to his case.
Furthermore, subsection (iii) does not apply, because neither the United
States Supreme Court nor the Pennsylvania Supreme Court has held that
Alleyne applies retroactively. See also Commonwealth v. Miller, 102
A.3d 988 (Pa.Super.2014) (Alleyne does not invalidate mandatory minimum
sentence when presented in untimely PCRA petition).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
_______________________
(Footnote Continued)
2011 was a holiday (Columbus Day). See 1 Pa.C.S. 1908 (“whenever the
last day of any [time] period shall fall on Saturday or Sunday, or on any day
made a legal holiday by the laws of this Commonwealth or of the United
States, such day shall be omitted from the computation”).
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