Com. v. Stevenson, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
CHADWYCKE JAY STEVENSON,
Appellant No. 190 MDA 2018
Appeal from the PCRA Order December 13, 2017
In the Court of Common Pleas of Perry County
Criminal Division at No(s): CP-50-CR-0000268-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 23, 2018
Appellant, Chadwycke Jay Stevenson, appeals from the post-conviction
court’s December 13, 2017 order dismissing, as untimely, his petition filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
The facts of Appellant’s case are not necessary to our disposition of his
present appeal. We need only note that Appellant was convicted of
involuntary deviate sexual intercourse and, on January 8, 2015, he was
sentenced to mandatory term of 10 to 20 years’ for that offense pursuant to
42 Pa.C.S. § 9718(a)(1). Appellant did not file a direct appeal; consequently,
his judgment of sentence became final on February 7, 2015.
On June 20, 2016, our Supreme Court issued Commonwealth v.
Wolfe, 140 A.3d 651 (Pa. 2016), holding that section 9718 is unconstitutional
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in light of Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013) (holding
that “facts that increase mandatory minimum sentences must be submitted
to the jury” and found beyond a reasonable doubt). Approximately one year
later, on June 23, 2017, Appellant filed a pro se PCRA petition asserting that
his mandatory sentence is illegal under Wolfe. Counsel was appointed and
filed an amended petition on his behalf. On December 13, 2017, the PCRA
court issued an order dismissing Appellant’s petition without a hearing,
concluding that it was untimely.1
Appellant filed a timely notice of appeal and also timely complied with
the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court issued a Rule 1925(a) opinion on
March 2, 2018. Herein, Appellant presents one issue for our review:
Should the [PCRA] petition filed by [Appellant] be deemed
untimely even though he filed after he discovered the Court’s
ruling made in … Wolfe …, which found that mandatory sentences
for sexual crimes [are] unconstitutional?
Appellant’s Brief at 7 (unnecessary capitalization omitted).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
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1 The PCRA court did not file a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition without a hearing. However, Appellant does not challenge
that error on appeal, thus waiving this claim for our review. See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure
to challenge the absence of a Rule 907 notice constitutes waiver.”) (citation
omitted). Additionally, even had Appellant raised this issue, we have stated
that “where the petition is untimely,” the failure to issue a Rule 907 notice
“does not automatically warrant reversal.” Id. (citation omitted).
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by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007) (stating PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded to address the merits of the petition). Under the PCRA,
any petition for post-conviction relief, including a second or subsequent one,
must be filed within one year of the date the judgment of sentence becomes
final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(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
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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, as stated supra, Appellant’s judgment of sentence became final
on February 7, 2015, at the conclusion of the 30-day period for filing an appeal
with this Court from his judgment of sentence. See 42 Pa.C.S. § 9545(b)(3)
(judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review); Pa.R.A.P. 903(a) (notice of
appeal to Superior Court must be filed within 30 days after the entry of the
order from which the appeal is taken). Accordingly, he had until February 8,
2016, to file a timely petition, making his present petition filed on June 23,
2017 patently untimely. Thus, for this Court to have jurisdiction to review the
merits thereof, Appellant must prove that he meets one of the exceptions to
the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant fails to meet this burden. Initially, his reliance on Wolfe
cannot satisfy the one-year time-bar of the PCRA for several reasons. First,
the Wolfe Court did not announce a new constitutional rule; it simply applied
the rule announced in Alleyne to hold that the mandatory minimum
sentencing scheme set forth in 42 Pa.C.S. § 9718 is unconstitutional.
Additionally, even if Wolfe did create a new rule, the Supreme Court did not
hold that Wolfe applies retroactively. Finally, Appellant did not file his petition
within 60 days of Wolfe’s filing; therefore, he cannot satisfy section
9545(b)(2).
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Appellant also contends that the interests of justice demand that we
grant him sentencing relief, despite the untimeliness of his petition. See
Appellant’s Brief at 12-13. However, our Supreme Court has made clear that
the PCRA “confers no authority upon [an appellate] [c]ourt to fashion ad hoc
equitable exceptions to the PCRA time-bar in addition to those exceptions
expressly delineated in the Act.” Commonwealth v. Watts, 23 A.3d 980,
983 (Pa. 2011) (citations omitted). Because, for the reasons stated supra,
Appellant cannot meet any of the statutory exceptions set forth in section
9545(b)(1), we cannot grant him relief on the basis of equity.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/23/2018
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