Com. v. Warren, D.

J-S28042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DIQUAN EARL WARREN, :
:
Appellant : No. 1903 WDA 2016
Appeal from the PCRA Order December 7, 2016,
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000687-2012
BEFORE: OLSON, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 12, 2017
Diquan Earl Warren (Appellant) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. We affirm.
On February 25, 2013, Appellant pled guilty to one count of corruption
of minors and one count of involuntary deviate sexual intercourse (IDSI).
On June 21, 2013, Appellant was sentenced to an aggregate term of 132 to
312 months of imprisonment, which included a mandatory minimum
sentence for the IDSI count pursuant to 42 Pa.C.S. § 9718. Appellant did
not file a direct appeal, and his judgment of sentence became final on July
22, 2013.
* Retired Senior Judge assigned to the Superior Court.
J-S28042-17
Appellant filed pro se the instant PCRA petition, his first, on July 29,
2016. Counsel was appointed, and on October 10, 2016, an amended
petition was filed. Therein, Appellant alleged that his sentence is illegal
pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013)1 and his plea
counsel2 was ineffective for failing to notify Appellant about Alleyne within
an appropriate timeframe to file timely a post-sentence motion, direct
appeal, or PCRA petition. Amended PCRA Petition, 10/10/2016, at 7-8.
On November 16, 2016, the PCRA court issued notice of its intent to
dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907 on the
basis that the petition was filed untimely and the court lacked jurisdiction to
consider it. Appellant did not file a response, and on December 7, 2016, the
PCRA court dismissed the petition. This appeal followed.3
Before we can examine Appellant’s substantive claims, we must
determine whether the filing of his PCRA petition was timely. “[O]ur
1
In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, 133 S. Ct. at 2155.
Applying this mandate, our Supreme Court held that 42 Pa.C.S. § 9718, the
statute that required a mandatory minimum sentence for IDSI, was
unconstitutional pursuant to Alleyne. See Commonwealth v. Wolfe, 140
A.3d 651, 653 (Pa. 2016).
2
The amended petition refers to “trial counsel,” but as noted, Appellant pled
guilty and did not have a trial.
3
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. The
PCRA court adopted its November 16, 2016 memorandum in support of its
notice to dismiss Appellant’s amended PCRA petition as its Rule 1925(a)
opinion.
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Supreme Court has stressed that ‘[t]he PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is not timely filed.’”
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011)
(quoting Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1267–68 (Pa.
2008)).
Generally, a petition for relief under the PCRA must be filed within one
year of the date the judgment of sentence is final unless the petition alleges,
and the petitioner proves, that a timeliness exception is met, and raises that
claim within 60 days of the date on which it became available. 42 Pa.C.S.
§ 9545(b)(1) and (2).
Appellant filed his petition three years after his judgment of sentence
became final. Thus, his petition is facially untimely, and the PCRA court had
no jurisdiction to entertain it unless he pled and offered proof of one or more
of the three statutory exceptions to the time-bar. 42 Pa.C.S. § 9545(b)(1).
Appellant alleged the filing of his petition was timely, based on the
newly-discovered-fact and new-constitutional-right exceptions to the PCRA
time-bar, 42 Pa.C.S. § 9545(b)(1)(ii) and (iii). 4 Amended PCRA Petition,
4
These exceptions to the time bar are as follows:
(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
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10/10/2016, at 5. Specifically, with respect to subsection (b)(1)(ii), he
avers that his discovery of Alleyne is a newly-discovered fact, and he filed
his petition within 60 days of discovering that fact. Id. at 10. With respect
to subsection (b)(1)(iii), he asserts that Alleyne is a constitutional right
applicable to him because he was sentenced four days after the United
States Supreme Court decided Alleyne. Id. at 5. He echoes these
arguments in his brief, contending either exception should apply due to his
ignorance of Alleyne as a result of his incarceration. Appellant’s Brief at 17.
Appellant’s petition does not satisfy the PCRA exception for newly-
discovered facts. “Our Courts have expressly rejected the notion that
judicial decisions can be considered newly-discovered facts which would
invoke the protections afforded by section 9545(b)(1)(ii).” Commonwealth
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
***
(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.
(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. § 9545(b)(1)(ii)-(iii), (b)(2).
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v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013). Therefore, Alleyne, a
judicial decision, is not a “fact” that satisfies section 9545(b)(1)(ii).
Nor does his petition satisfy the PCRA exception for a new
constitutional right. As the PCRA court noted, the United States Supreme
Court recognized the constitutional right at issue prior to Appellant’s
sentencing, not “‘after the time period provided in this section,’ i.e. after his
one-year window for filing a petition closed on July 22, 2014.” Trial Court
Opinion, 11/16/2016, at 3 (citing 42 Pa.C.S. § 9545(b)(1)(iii)) (emphasis
added). Thus, by virtue of the plain language of the statute, the after-
recognized-constitutional-right exception does not apply to Appellant.
Furthermore, even assuming arguendo that the after-recognized-
constitutional-right exception did apply, Appellant did not file his claim within
sixty days of Alleyne’s publication date as required by section 9545(b)(2).
Appellant misconstrues the sixty-day period; the applicable “period begins to
run upon the date of the underlying judicial decision,” not Appellant’s
discovery of the decision. Commonwealth v. Boyd, 923 A.2d 513, 517
(Pa. Super. 2007). Appellant’s incarceration or general ignorance of the law
does not excuse the sixty-day requirement required to prove the after-
recognized-constitutional-right exception. See Commonwealth v.
Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (quoting Commonwealth v.
Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001)) (“Neither the court system
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nor the correctional system is obliged to educate or update prisoners
concerning changes in case law.”); Leggett, 16 A.3d at 1145 (same).5
Notwithstanding the unconstitutionality of 42 Pa.C.S. § 9718, the
statute pursuant to which Appellant received a mandatory minimum
sentence, “a legality [of sentence] claim [derived from Alleyne] may
nevertheless be lost should it be raised ... in an untimely[-filed] PCRA
petition for which no time-bar exception applies, thus depriving the court of
jurisdiction over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995
(Pa. Super. 2014) (quoting Commonwealth v. Seskey, 86 A.3d 237, 241
5
In Baldwin, Leggett, and Brandon, this Court held that the after-
recognized-constitutional-right exception set forth in subsection (b)(1)(iii)
does not apply to petitions filed more than 60 days after the issuance of a
decision recognizing a new constitutional right, even if the petitioner filed the
petition within 60 days of his learning about the decision through a prison-
sponsored seminar or newly-available resource in the prison law library.
We note that our Supreme Court recently recognized that pro se
incarcerated petitioners have limited access to information of public record
while in prison and permitted a pro se incarcerated petitioner to avail himself
of the newly-discovered-facts exception at subsection (b)(1)(ii), even though
the newly-discovered fact was part of the public domain for more than sixty
days prior to the filing of the petition. Commonwealth v. Burton, 158
A.3d 618 (Pa. 2017). However, in so holding, the Court acknowledged that
courts have denied relief to pro se incarcerated petitioners under subsection
(b)(1)(iii) if they did not file their petitions within 60 days of a decision
creating a newly-recognized constitutional right. Id. at 636. The Court
distinguished the requirements of subsection (b)(1)(ii) from the
requirements of subsection (b)(1)(iii), noting that subsection (b)(1)(ii)
requires a determination of whether the fact was unknown to the petitioner
and whether the petitioner could have ascertained the fact by due diligence,
but “subsection (b)(1)(iii) precludes consideration of the petitioner’s
knowledge [of a judicial decision] and an assessment of due diligence.” Id.
(emphasis in original). Therefore, Burton has not disturbed the holdings of
Baldwin, Leggett, and Brandon to the extent that they rely upon the
after-recognized-constitutional-right exception to deny relief.
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(Pa. Super. 2014)). Appellant failed to raise his claims regarding illegality of
his sentence and ineffective assistance of his counsel in a timely-filed PCRA
petition. Thus, under the present state of the law, we are constrained to
conclude that we have no jurisdiction to consider the substance of his
claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2017
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