Com. v. Riccitello, M.

J-S14023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL RICCITELLO :
:
Appellant : No. 3062 EDA 2018
Appeal from the Order Entered August 29, 2018
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003466-2013
CP-09-CR-0004089-2013
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 24, 2019
Appellant Michael Riccitello appeals pro se from the order dismissing his
third Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant asserts
that he was sentenced using an unconstitutional mandatory minimum statute.
For the reasons that follow, we vacate the order entered in CP-09-CR-
0003466-2013 (3466-2013) because Appellant did not file his petition in that
case. We affirm the order entered in CP-09-CR-0004089-2013 (4089-2013).
The parties are familiar with the facts of Appellant’s convictions. Of
relevance to this appeal, Appellant was charged with robbery—threat of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
J-S14023-19
immediate serious injury (robbery)2 and related offenses in 3466-2013 and
4089-2013.
Appellant negotiated a guilty plea agreement for concurrent sentences
of ten to twenty years’ imprisonment for the robberies. There was no
indication that the Commonwealth sought the imposition of mandatory
minimum sentences.
On September 9, 2013, the trial court conducted a guilty plea hearing.
During the colloquy, the Commonwealth did not allege that Appellant
possessed a firearm during the robbery in 3466-2013. The Commonwealth
noted that Appellant did not display a firearm during the robbery in 4089-
2013. The Commonwealth indicated that Appellant gave a statement to police
that he possessed a firearm during the robbery in 4089-2013. The trial court
accepted Appellant pleas and, that same day, sentenced Appellant pursuant
to the negotiated agreement. Appellant did not file a direct appeal.
On July 6, 2018, the PCRA court received the pro se PCRA petition that
gives rise to this appeal.3 Appellant captioned the petition under 4089-2013,
____________________________________________
2 18 Pa.C.S. §§ 3701(a)(1)(ii).
3 Appellant previously filed a timely first PCRA petition that was denied without
an evidentiary hearing on September 4, 2013. He subsequently filed a petition
for a writ of habeas corpus alleging he was detained without a written
sentencing order. The court denied that petition on March 10, 2015. Appellant
then filed a pro se “motion to proceed in forma pauperis pursuant to existing
rights” in 4089-2013, which the PCRA court dismissed as a second PCRA
petition on July 11, 2017. Therefore, we regard the instant petition as
Appellant’s third.
-2-
J-S14023-19
and the court docketed and filed the petition in that case. In the petition,
Appellant asserted that he was illegally sentenced to a mandatory minimum
sentence for visible possession of a firearm during the commission of robbery.
See 42 Pa.C.S. § 9712(a) (setting forth a five-year mandatory minimum
sentence for visible possession of a firearm) (held unconstitutional in
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014)).
On August 2, 2018, the PCRA court filed Pa.R.Crim.P. 907 notices of
intent to dismiss in 3466-2013 and 4089-2013. On August 29, 2018, the
court entered orders in both cases dismissing the petition.4
Appellant filed timely notices of appeal in 3466-2013 and 4089-2103
and complied with the court’s order to file and serve a Pa.R.A.P. 1925(b)
statement. The PCRA court filed a responsive opinion.
As a preliminary matter, we are constrained to vacate the order
dismissing Appellant’s PCRA petition in 3466-2013. As noted above, Appellant
filed the instant petition in 4089-2013. Appellant did not file a corresponding
petition in 3466-2013. Because there was no petition for the PCRA court to
dismiss in 3466-2013, the court’s actions in that case were nullities.5
____________________________________________
4 In its order dismissing Appellant’s petition, the PCRA court referred to
Appellant’s failure to file a response to its Rule 907 notices. However, the
record shows that Appellant filed a pro se response that was docketed on
August 22, 2018. The PCRA court addressed Appellant’s response in its
Pa.R.A.P. 1925(a) opinion.
5In any event, our reasons for affirming the August 29, 2018 order in 4089-
2013 would still apply.
-3-
J-S14023-19
Because Appellant filed a timely notice of appeal from the order in 4089-
2013, we will consider this appeal as it relates to 4089-2013.
Appellant raises the following questions for our review:
[1.] Does the statute, deemed unconstitutional by the High Court
apply retroactively in Appellant’s claims?
[2.] Did the [PCRA] court err in enhancing sentence, whereby
failing to submit all elements of the charge to the fact finder for
proof beyond a reasonable doubt?
Appellant’s Brief at 6.
Appellant’s issues are closely related, and we address them together.
Appellant asserts that
the PCRA [c]ourt erred in dismissing Appellant’s PCRA petition by
failing to apply Alleyne . . . , which held that under the Sixth (6th)
Amendment to the United States Constitution, any facts leading
to an increased mandatory minimum sentence are “elements” of
the crime and must be presented to the jury and proven beyond
a reasonable doubt. Due to the fact that these “elements of the
crime must be “proven beyond a reasonable doubt,” the new rule
announced in Alleyne is a new element that must be proven.
Thus, the mandatory minimum statutes that Appellant was
sentenced under are unconstitutional, and as such, [are]now
beyond the Commonwealth of Pennsylvania’s power to impose
and continue to enforce.
Id. at 10 (citations omitted). Appellant contends that Alleyne stated a
watershed rule of criminal procedure that should apply retroactively. Id. at
11.
Our standard of review for the dismissal of a PCRA petition is limited to
“whether the record supports the PCRA court’s determination and whether the
PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90
-4-
J-S14023-19
A.3d 1, 4 (Pa. Super. 2014) (citation omitted). This Court “may affirm the
decision of the [PCRA] court if there is any basis on the record to support the
[PCRA] court’s action; this is so even if we rely on a different basis in our
decision to affirm.” Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.
Super. 2009) (citation omitted).
It is well-settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)
(citation omitted). A PCRA 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). A judgment is 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.” 42 Pa.C.S. § 9545(b)(3).
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final only if the petitioner pleads and proves
one of the following three statutory exceptions:
(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
-5-
J-S14023-19
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). Moreover, a petitioner must file his petition
within sixty days of the date the claim could have been presented. See 42
Pa.C.S. § 9545(b)(2) (subsequently amended eff. Dec. 24, 2018).
When asserting an exception under Section 9545(b)(1)(iii), a petitioner
may not rely on a new constitutional rule that does not apply to his conviction
or sentence. See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.
2016). For example, in Miller v. Alabama, 567 U.S. 460 (2012), the United
States Supreme Court held that the imposition of a mandatory life-without-
parole sentence on offenders under the age of eighteen constituted cruel and
unusual punishment. See Furgess, 149 A.3d at 93. In Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), the United States Supreme Court
recognized that the right recognized in Miller applied retroactively. See
Furgess, 149 A.3d at 94. The Furgess Court held that Miller and
Montgomery did not establish a time-bar exception for petitioners who were
eighteen years of age or older when they committed the crime of murder and
were sentenced to mandatory life-without-parole sentence. Id.; accord
Commonwealth v. Hudson, 156 A.3d 1194, 1198 (Pa. Super. 2017)
(concluding that a defendant sentenced to twenty-five to fifty years’
imprisonment as a juvenile could not invoke Miller as an time-bar exception
under Section 9545(b)(1)(iii)), appeal denied, 170 A.3d 1007 (Pa. 2017).
-6-
J-S14023-19
Instantly, there is no dispute that Appellant’s petition was untimely on
its face. Appellant instead relies on Alleyne to establish a time-bar exception
under Section 9545(b)(1)(iii). However, the record contains no indication that
the Commonwealth requested a mandatory minimum sentence under Section
9712(a), or that the trial court imposed a mandatory minimum sentence.6
Accordingly, Appellant’s reliance on Alleyne is misplaced. See Furgess, 149
A.3d at 94.
Therefore, we agree with the PCRA court that Appellant’s petition did
not state an exception under Section 9545(b)(1)(iii). See Lawson, 90 A.3d
at 4; Wiley, 966 A.2d at 1157. Because we find no error in the PCRA court’s
ruling, we affirm.
Order in 4089-2013 affirmed. Order in 3466-2013 vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/19
____________________________________________
6 We add that the trial court sentenced Appellant to ten to twenty years’
imprisonment for robbery in 4089-2013. Because the sentence exceeded the
five-year mandatory minimum sentence previously called for in Section
9712(a), the sentence did not violate Alleyne. See Commonwealth v.
Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).
-7-