Com. v. Lomax, A.

J. S08019/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTHONY EUGENE LOMAX, JR., : No. 689 WDA 2016
:
Appellant :
Appeal from the PCRA Order, April 15, 2016,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0001819-2008
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 08, 2017
Anthony Eugene Lomax, Jr., appeals from the order of April 15, 2016,
dismissing his serial PCRA1 petition. We affirm.
On November 4, 2008, appellant entered a negotiated guilty plea to
one count each of rape of a child and aggravated indecent assault. 2 In
exchange for his plea, additional charges of involuntary deviate sexual
intercourse and corruption of minors were nolle prossed. Appellant
admitted to digitally penetrating the four-year-old victim’s vagina and
penetrating her anus with his penis. (Notes of testimony, 11/4/08 at 5.) On
March 3, 2009, appellant appeared for sentencing. Appellant made an oral
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
18 Pa.C.S.A. §§ 3121(c) & 3125(b), respectively.
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motion to withdraw the plea, which was denied. (Notes of testimony, 3/3/09
at 31-32.) Appellant received an aggregate sentence of 20 to 40 years’
imprisonment, which included 10-year mandatory minimum sentences at
each count. Appellant was also found to meet the statutory criteria for
sexually violent predator status.
Appellant filed a direct appeal, and this court affirmed the judgment of
sentence on February 1, 2010. Commonwealth v. Lomax, 996 A.2d 10(Pa.Super. 2010) (unpublished memorandum). Appellant’s petition for
allowance of appeal was denied by the Pennsylvania Supreme Court on
November 16, 2010. Commonwealth v. Lomax, 12 A.3d 751 (Pa. 2010).
On January 21, 2011, appellant filed a timely pro se PCRA petition.
Counsel was appointed and filed an amended petition on appellant’s behalf.
(Docket #61.) An evidentiary hearing was held on June 2, 2011, and
appellant’s petition was denied on June 10, 2011. In a memorandum
decision, this court affirmed on January 23, 2012; and on June 20, 2012,
our supreme court denied allowance of appeal. Commonwealth v. Lomax,
43 A.3d 526 (Pa.Super. 2012) (unpublished memorandum), appeal denied,
47 A.3d 846 (Pa. 2012).
On March 17, 2016, appellant filed the instant petition pro se, his
second. (Docket #86.) On March 30, 2016, the PCRA court issued notice of
its intent to dismiss the petition without a hearing within 20 days pursuant
to Pa.R.Crim.P. 907. Appellant filed a response on April 8, 2016, and on
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April 15, 2016, appellant’s petition was dismissed as untimely filed. (Docket
#89.) On May 11, 2016, appellant filed a timely pro se notice of appeal,
together with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). (Docket #90, #91.) On June 10, 2016, the
PCRA court issued a Rule 1925(a) opinion, relying on the reasons for
dismissal set forth in its Rule 907 notice. (Docket #94.)
Subsequently, appellant retained private counsel, Marvin Leibowitz,
Esq. On September 29, 2016, this court granted Attorney Leibowitz’s
motion for remand and directed appellant to file a counseled Rule 1925(b)
statement within 14 days. (Docket #97.) Appellant filed a Rule 1925(b)
statement on October 13, 2016. (Docket #98.) On October 20, 2016, the
PCRA court filed a supplemental Rule 1925(a) opinion, again relying on its
March 30, 2016 Rule 907 notice. (Docket #99.)
Appellant has raised the following issues for this court’s review:
I. Whether the lower court erred in finding that
the appellant’s second PCRA petition is not
timely in view of the United States Supreme
Court opinion in Montgomery v. Louisiana,
[ U.S. ,] 136 S.Ct. 718, 193 L.Ed.2d
599 (2016)?
II. Whether the lower court erred by sentencing
the appellant to a mandatory minimum
sentence in violation of Alleyne v. United
States, [ U.S. ,] 133 S.Ct. 2151[(2013)] and Commonwealth v. Wolfe, 140
A.3d 651 ([Pa.] 2016)?
III. Whether the appellant’s trial counsel was
ineffective in failing to file a written motion for
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withdrawal of the guilty plea despite
appellant’s request and to file a motion to
suppress a confession?
Appellant’s brief at vii (unnecessary capitalization deleted).
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 by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
amendments to the PCRA, effective January 16,
1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super.2000). A judgment is deemed 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.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
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To invoke an exception, a petition must allege and
prove:
(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.A. § 9545(b)(1)(i)-(iii). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Id. at 1079-1080. “To invoke an exception, the petitioner must plead it and
satisfy the burden of proof.” Commonwealth v. Geer, 936 A.2d 1075,
1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
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Here, appellant’s judgment of sentence became final on February 14,
2011, 90 days after the Pennsylvania Supreme Court denied allowance of
appeal and the deadline passed for filing a petition for writ of certiorari in
the United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct. Rule 13(1), 28 U.S.C.A. As such, the instant petition,
appellant’s second, is manifestly untimely, unless one of the three statutory
exceptions to the PCRA’s one-year jurisdictional time-bar applies. Appellant
asserts that his sentence is illegal under Alleyne and its progeny (holding
that any fact that, by law, increases the penalty for a crime is required to be
treated as an element of the offense, submitted to a jury, rather than a
judge, and found beyond a reasonable doubt). However, “even claims that a
sentence was illegal, an issue deemed incapable of being waived, are not
beyond the jurisdictional time restrictions.” Commonwealth v. Grafton,
928 A.2d 1112, 1114 (Pa.Super. 2007), citing Commonwealth v. Fahy,
737 A.2d 214 (Pa. 1999); Commonwealth v. Beck, 848 A.2d 987(Pa.Super. 2004). Therefore, appellant’s illegal sentencing claim does not
operate as an independent exception to the PCRA’s jurisdictional time-bar.
To the extent that appellant is arguing that the after-recognized
constitutional right exception, enumerated at 42 Pa.C.S.A. § 9545(b)(1)(iii)
applies, he is mistaken. Recently, our supreme court decided that Alleyne
does not apply retroactively to collateral attacks on mandatory minimum
sentences advanced in post-conviction relief proceedings. Commonwealth
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v. Washington, 142 A.3d 810 (Pa. 2016); see also Commonwealth v.
Riggle, 119 A.3d 1058 (Pa.Super. 2015) (holding that Alleyne did not
apply retroactively in a PCRA setting, where Riggle’s judgment of sentence
became final 15 months before the Supreme Court decided Alleyne in June
of 2013). Furthermore, it is well settled that Alleyne does not invalidate a
mandatory minimum sentence when presented in an untimely PCRA petition.
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).
Appellant relies on Montgomery for the proposition that when a new
substantive rule of constitutional law controls the outcome of the case, it
must be given retroactive effect on state collateral review. (Appellant’s brief
at 2.) See Montgomery, 136 S.Ct. at 732 (Supreme Court's decision in
Miller v. Alabama, U.S. , 132 S.Ct. 2455 (2012), prohibiting under
the Eighth Amendment mandatory life sentences without parole for juvenile
offenders, announced a new substantive constitutional rule that was
retroactive on state collateral review). However, the Pennsylvania Supreme
Court in Washington decided that the Alleyne ruling was not substantive
nor was it a groundbreaking, “watershed” rule of criminal procedure that
applies retroactively on collateral review. Washington, 142 A.3d at
818-819. See Teague v. Lane, 489 U.S. 288 (1989) (plurality) (a new
constitutional rule of criminal procedure does not generally apply to
convictions that were final when the new rule was announced). As such,
appellant is not entitled to the benefit of Alleyne.
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Finally, appellant claims that trial counsel was ineffective for failing to
file a written pre-sentence motion to withdraw his guilty plea, and for failing
to file a motion to suppress appellant’s confession. (Appellant’s brief at
6-9.) It is well settled that claims of trial counsel ineffectiveness do not
operate as an independent exception to the one-year jurisdictional time bar
of the PCRA. See Gamboa-Taylor, 753 A.2d at 783 (holding a claim of
ineffective assistance of counsel does not save an otherwise untimely
petition for review on the merits); see also Commonwealth v. Breakiron,
781 A.2d 94, 97 (Pa. 2001) (allegations of ineffective assistance of counsel
will not circumvent the timeliness requirement of the PCRA).
Also, these claims could have been brought in appellant’s first PCRA
petition and are waived on that basis. 42 Pa.C.S.A. § 9544(b) (“For
purposes of this subchapter, an issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.”).
As appellant’s petition, his second, is patently untimely and appellant
has failed to plead and prove the applicability of any exception to the PCRA’s
time-of-filing requirements, the PCRA court lacked jurisdiction to consider
the merits of appellant’s issues and did not err in dismissing appellant’s
petition without an evidentiary hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2017
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