Com. v. Dyson, J.

J-S70025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH DYSON
Appellant No. 1112 EDA 2014
Appeal from the PCRA Order February 12, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005936-1992
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 21, 2014
Appellant, Joseph Dyson, appeals from the February 12, 2014 order
dismissing as untimely his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
We summarize the relevant factual and procedural history of this case
as follows. On March 10, 1993, Appellant entered a guilty plea to murder,
robbery, possession of an instrument of a crime (PIC), possession of a
firearm, and carrying a firearm without a license.1 Following a degree-of-
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2501, 3701(a)(1)(i), 907(a), 907(b) and 6106,
respectively.
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guilt hearing, the trial court found Appellant guilty of first-degree murder.2
On June 24, 1993, the trial court imposed an aggregate sentence of life
imprisonment. Appellant did not file a direct appeal with this Court.
Thereafter, Appellant filed a PCRA petition on July 6, 1994. After several
ancillary issues were resolved, the PCRA court ultimately denied Appellant’s
PCRA petition. Appellant appealed, and this Court affirmed in all aspects
except with respect to his claim that prior counsel was ineffective for not
filing a direct appeal. Commonwealth v. Dyson, 776 A.2d 1004 (Pa.
Super. 2001) (unpublished memorandum at 8). This Court remanded to the
PCRA court to conduct an evidentiary hearing limited to that issue. Id. A
hearing was held, at the conclusion of which the PCRA court reinstated
Appellant’s direct appeal rights nunc pro tunc. Appellant filed a notice of
appeal to this Court. This Court affirmed Appellant’s judgment of sentence
on October 30, 2001. Commonwealth v. Dyson, 792 A.2d 612 (Pa. Super.
2001), appeal denied, 800 A.2d 931 (Pa. 2002). Our Supreme Court denied
Appellant’s petition for allowance of appeal on June 12, 2002. Appellant did
not seek a writ of certiorari from the United States Supreme Court.
Thereafter, Appellant filed an unsuccessful PCRA petition in 2003.
On August 24, 2012, Appellant filed the instant PCRA petition.
Appellant filed an amended PCRA petition on August 19, 2013. Appellant
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2
18 Pa.C.S.A. § 2502(a).
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filed another amendment to his PCRA petition, titled as an amended habeas
corpus petition on January 3, 2014. On January 16, 2014, the PCRA court
entered an order notifying Appellant of its intention to dismiss Appellant’s
PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal
Procedure 907. On February 6, 2014, Appellant filed his response to the
PCRA court’s Rule 907 notice.3 On February 12, 2014, the PCRA court
entered an order dismissing Appellant’s PCRA petition. On March 13, 2014,
Appellant filed a timely notice of appeal.4
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3
Although Appellant’s response to the PCRA court’s Rule 907 notice is
docketed on February 7, 2014, the physical copy of said response in the
certified record is file-stamped February 6, 2014. However, “[a]lthough the
trial court docket is part of the official record, when it is at variance with the
certified record it references, the certified record controls.” Shelly Enters.,
Inc. v. Guadagnini, 20 A.3d 491, 494 (Pa. Super. 2011). Therefore, we
consider Appellant’s response filed on February 6, 2014.
4
On March 14, 2014, the PCRA court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) within 21 days.
Therefore, Appellant’s Rule 1925(b) statement was due Friday, April 4,
2014. Although Appellant’s statement is file-stamped Monday, April 7,
2014, it is docketed twice, once on April 4 and once on April 7. As it is
plausible that said statement was received on April 4, 2014, we decline to
find total waiver of all issues on appeal for failure to timely file a Rule
1925(b) statement. See, e.g., Commonwealth v. Patterson, 931 A.2d
710, 714 (Pa. Super. 2007) (stating, regarding a notice of appeal,
“[a]lthough the record is bereft of the envelope in which the notice of appeal
was mailed, and thus lacks a postmark definitively noting the date of
mailing, we note that September 23rd and 24th were weekend days. Thus,
in order for the trial court to have received the notice of appeal by
September 25th, it is likely that Appellant mailed his notice of appeal on or
before September 22nd. Accordingly, we decline to quash the appeal for
untimeliness[]”).
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On appeal, Appellant raises the following two issues for our review.
A. Whether the imposition of a mandatory
minimum sentence of life without parole from an
invalid plea-based conviction violated Appellant’s
right to notice and trial by jury under the Sixth and
Fourteenth Amendment as interpreted by Alleyne v.
United States, 133 S. Ct. 2151 (2013)?
B. Whether Appellant is eligible for habeas corpus
relief where he was denied a full and fair opportunity
to litigate his claims in his first [PCRA] process and
no remedy exists under the PCRA to remedy post-
conviction procedures that were inadequate to
vindicate a defendant’s liberty interest?
Appellant’s Brief at 5.
We elect to address Appellant’s second issue first. Appellant avers
that he is entitled to habeas relief outside of the PCRA. Appellant’s Brief at
37. Appellant also argues that “[i]f the PCRA were to only deal with claims
that are retroactive, the PCRA would be unconstitutional as applied to
Appellant because he would have no remedy under the PCRA to remedy the
violations of his constitutional rights.” Id.
Our Supreme Court has held that the PCRA “subsumes the writ of
habeas corpus in circumstances where the PCRA provides a remedy for the
claim.” Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008) (italics
added), cert. denied, Hackett v. Pennsylvania, 556 U.S. 1285 (2009).
The PCRA by its own text states that it is the sole vehicle for collaterally
attacking a conviction or sentence.
This subchapter provides for an action by which
persons convicted of crimes they did not commit and
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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. This
subchapter is not intended to limit the availability of
remedies in the trial court or on direct appeal from
the judgment of sentence, to provide a means for
raising issues waived in prior proceedings or to
provide relief from collateral consequences of a
criminal conviction. Except as specifically provided
otherwise, all provisions of this subchapter shall
apply to capital and noncapital cases.
42 Pa.C.S.A. § 9542 (emphasis and italics added). We also observe that the
habeas corpus statute provides that “[w]here 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.” Id. § 6503(b) (italics added). The
PCRA allows numerous grounds for collateral relief, including the following.
§ 9543. Eligibility for relief
(a) General rule.--To be eligible for relief under
this subchapter, the petitioner must plead and prove
by a preponderance of the evidence all of the
following:
(1) That the petitioner has been convicted of a
crime under the laws of this Commonwealth
and is at the time relief is granted:
(i) currently serving a sentence of
imprisonment, probation or parole for
the crime;
…
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(2) That the conviction or sentence resulted
from one or more of the following:
…
(i) A violation of the Constitution of this
Commonwealth or the Constitution or
laws of the United States which, in the
circumstances of the particular case, so
undermined the truth-determining
process that no reliable adjudication of
guilt or innocence could have taken
place.
…
(vii) The imposition of a sentence greater
than the lawful maximum.
…
42 Pa.C.S.A. § 9543(a); see also Commonwealth v. Infante, 63 A.3d
558, 365 (Pa. Super. 2013) (stating, “[a]lthough legality of sentence is
always subject to review within the PCRA, claims must still first satisfy the
PCRA's time limits or one of the exceptions thereto[]”).
The balance of Appellant’s argument on appeal is that “the imposition
of a mandatory minimum sentence of life without parole from an invalid
plea-based conviction violated Appellant’s right to notice and trial by jury
under the Sixth and Fourteenth Amendments as interpreted by Alleyne []
as well as his corresponding rights under the Pennsylvania Constitution.”
Appellant’s Brief at 28. This Court has recently held that claims pertaining
to Alleyne implicate the legality of the sentence. Commonwealth v.
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Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc); accord
Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013). As a
result, Appellant’s claims fall squarely within the parameters of the PCRA.
Therefore, we reject Appellant’s arguments that he may seek habeas relief
outside of the PCRA.
Having determined that Appellant’s issue falls within the boundaries of
the PCRA, we note our well-settled standard of review. “In reviewing the
denial of PCRA relief, we examine whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Fears,
86 A.3d 795, 803 (Pa. 2014) (internal quotation marks and citation
omitted). “The scope of review is limited to the findings of the PCRA court
and the evidence of record, viewed in the light most favorable to the
prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294,
311 (Pa. 2014) (citation omitted). “It is well-settled that a PCRA court’s
credibility determinations are binding upon an appellate court so long as
they are supported by the record.” Commonwealth v. Robinson, 82 A.3d
998, 1013 (Pa. 2013) (citation omitted). However, this Court reviews the
PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d
1080, 1084 (Pa. Super. 2014) (citation omitted).
We also note that a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision dismissing a
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petition without a hearing for an abuse of discretion. Commonwealth v.
Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal
citations omitted). “[A]n evidentiary hearing is not meant to function as a
fishing expedition for any possible evidence that may support some
speculative claim of ineffectiveness.” Roney, supra at 605 (citation
omitted).
Before we may address the merits of Appellant’s arguments, we must
first consider the timeliness of Appellant’s PCRA petition because it
implicates the jurisdiction of this Court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation
omitted). Pennsylvania law makes clear that when “a PCRA petition is
untimely, neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)
(citation omitted), appeal denied, --- A.3d ---, 2014 WL 5096348 (Pa.
2014). The “period for filing a PCRA petition is not subject to the doctrine of
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equitable tolling; instead, the time for filing a PCRA petition can be extended
only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86
A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted).
This is to “accord finality to the collateral review process.” Commonwealth
v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted). “However, an
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.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)
(citation omitted). The PCRA provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
…
(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 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
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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.
…
42 Pa.C.S.A. § 9545(b).
In the case sub judice, Appellant was sentenced on June 24, 1993, this
Court affirmed the judgment of sentence on October 30, 2001, and our
Supreme Court denied allocatur on June 12, 2002. Therefore, Appellant’s
judgment of sentence became final on September 10, 2002, when the period
for Appellant to file a petition for a writ of certiorari in the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “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 time for seeking the
review[]”); U.S. Sup. Ct. R. 13(1) (stating “a petition for a writ of certiorari
to review a judgment in any case … is timely when it is filed with the Clerk of
this Court within 90 days after entry of the judgment[]”). Therefore,
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Appellant had until September 10, 2003 to timely file his PCRA petition.
Appellant filed the instant petition on August 24, 2012. As a result, it was
patently untimely.
However, Appellant avers that the time-bar exception at Section
9545(b)(1)(iii) applies. Appellant’s Brief at 28. Specifically, Appellant avers
that the United States Supreme Court’s decision in Alleyne announced a
new constitutional right that applies retroactively. Id. at 28-30; see also
Appellant’s Amended PCRA Petition, 8/19/13, at 4.
Subsection (iii) of Section 9545[(b)(1)] has
two requirements. First, it provides that 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
provided in this section. Second, it provides that the
right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that
there is a “new” constitutional right and that the
right “has been held” by that court to apply
retroactively. The language “has been held” is in the
past tense. These words mean that the action has
already occurred, i.e., “that court” has already held
the new constitutional right to be retroactive to
cases on collateral review. By employing the past
tense in writing this provision, the legislature clearly
intended that the right was already recognized at the
time the petition was filed.
Seskey, supra at 242-243 (citations omitted).
As noted above, Appellant argues that Alleyne announced a new
constitutional right that applies retroactively. Appellant’s Brief at 28-30. In
Alleyne, the Supreme Court held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and must be found
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beyond a reasonable doubt. Alleyne, supra at 2163. However, this Court
recently held that Alleyne does not satisfy the new constitutional right
exception to the time-bar, as neither our Supreme Court nor the United
States Supreme Court has held that Alleyne applies retroactively to cases
on collateral review. Commonwealth v. Miller, --- A.3d ---, 2014 WL
4783558, *5 (Pa. Super. 2014). Therefore, Appellant cannot avail himself of
the time-bar exception, and the PCRA court was without jurisdiction to
consider the merits of his petition. See Lawson, supra; Seskey, supra.
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s PCRA petition as untimely. Accordingly, the PCRA
court’s February 12, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
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