Com. v. Norris, B.

J. S53043/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRUCE NORRIS, : No. 285 EDA 2017
:
Appellant :
Appeal from the PCRA Order, December 20, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0618592-1975
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2017
Bruce Norris appeals, pro se, from the order of December 20, 2016,
dismissing his third PCRA1 petition as untimely. We affirm.
In an opinion in support of its order dismissing appellant’s second
PCRA petition, the PCRA court set forth the history of this case as follows:
On June 30, 1975, [appellant] was arrested
and charged with murder and related offenses. On
October 31, 1975, following a jury trial, [appellant]
was found guilty of second-degree murder, robbery,
criminal conspiracy, possessing instruments of crime
(PIC), and possessing prohibited weapons. On
January 19, 1976, the Honorable Alex Bonavitacola
sentenced [appellant] to life imprisonment on the
murder charge, 5 to 10 years[’] state incarceration
on the robbery charge, and 5 to 10 years[’] state
incarceration on the conspiracy charge. The
sentences on all charges were to run consecutively
to one another. In addition, Judge Bonavitacola
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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further sentenced [appellant] to 2½ to 5 years[’]
state incarceration on “the remaining count[,”] to
run concurrently with the sentences on the other
charges, although he did not specify which of
[appellant]’s two remaining charges this sentence
applied to.
On November 6, 1975, [appellant] filed a
motion for a new trial. On February 17, 1976,
[appellant] filed an appeal with the Supreme Court
of Pennsylvania. On December 1, 1977, the
Supreme Court affirmed the judgment of sentence.
On June 2, 1978, [appellant] filed a petition for relief
pursuant to the Post-Conviction Hearing Act (PCHA),
alleging ineffective assistance of counsel based upon
trial counsel’s failure to obtain the statement of
[appellant]’s co-defendant, to object to the
Commonwealth Attorney’s improper argument, to
cross-examine the co-defendant as to bias and
credibility, to cross-examine a witness based upon
their inability to identify [appellant] at a previous
lineup, and to raise these issues on appeal. On
September 23, 1981, the PCHA Court found
[appellant]’s petition to be without merit.
[Appellant] appealed the dismissal of his petition to
the Superior Court and, on October 1, 1982, the
Superior Court affirmed the dismissal of [appellant]’s
petition.
On April 18, 2012, [appellant] filed the instant
petition for relief pursuant to the Post-Conviction
Relief Act (PCRA), alleging ineffective assistance of
counsel based upon trial counsel’s advising him to
reject the Commonwealth’s plea offer of 25 years[’]
state incarceration without first advising [appellant]
of the advantages and disadvantages of accepting
the offer. On April 9, 2014, Barnaby Wittels,
Esquire, was appointed as PCRA counsel. On
February 25, 2015, Mr. Wittels filed a [Finley][2]
letter stating that the issues raised in [appellant]’s
petition were untimely, waived, and without merit.
2
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc);
see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
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On June 12, 2015, this Court[Footnote 1] sent
[appellant] a notice pursuant to Rule 907, indicating
that his petition would be dismissed based upon
Counsel’s [Finley] letter and untimeliness.
[Appellant] did not file a response to the 907 notice.
On July 15, 2015, after independent review of
[appellant]’s pro se petition and Counsel’s [Finley]
letter, this Court dismissed [appellant]’s petition
without a hearing based upon Counsel’s [Finley]
letter and untimeliness. On August 13, 2015,
[appellant] appealed the dismissal of his petition to
the Superior Court.
[Footnote 1] On March 13, 2015,
[appellant]’s PCRA petition was
reassigned to this Court.
Commonwealth v. Norris, PCRA court opinion, 8/28/15 at 1-3.
On March 17, 2016, this court affirmed. Commonwealth v. Norris,
2016 WL 1064472, 144 A.3d 201 (Pa.Super. filed March 17, 2016)
(unpublished memorandum). Appellant did not file a petition for allowance
of appeal with the Pennsylvania Supreme Court. On May 10, 2016,
appellant filed the instant petition, his third, followed by a supplemental
amended petition on August 24, 2016. On November 18, 2016, the PCRA
court issued 20-day notice pursuant to Pa.R.Crim.P. 907. Appellant filed a
response on December 2, 2016, and the PCRA court dismissed his petition
on December 20, 2016. This timely appeal followed on January 5, 2017.
Appellant was not ordered to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b); however, on February 8, 2017, the
PCRA court filed an opinion.
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The standard of review for an order denying
post-conviction relief is limited to whether the record
supports the PCRA court’s determination, and
whether that decision is free of legal error. The
PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified
record. Furthermore, a petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court
can decline to hold a hearing if there is no genuine
issue concerning any material fact and the petitioner
is not entitled to post-conviction collateral relief, and
no purpose would be served by any further
proceedings.
Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),
appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.
Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).
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).
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Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).3
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).
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
3
“There exists a proviso to the 1995 amendments to the PCRA which
provides a grace period for petitioners whose judgments have become final
on or before the effective date of the amendments. However, the proviso is
not applicable to second or subsequent PCRA petitions.” Johnson, 945 A.2d
at 188 n.2, citing Commonwealth v. Thomas, 718 A.2d 326 (Pa.Super.
1998) (en banc).
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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).
Instantly, the Supreme Court of Pennsylvania affirmed appellant’s
judgment of sentence on December 1, 1977. Appellant filed the current
petition, his third, on May 10, 2016, nearly 40 years later. Therefore,
appellant’s current PCRA petition is manifestly untimely on its face.
Appellant asserts that his sentence is illegal under Alleyne v. United
States, U.S. , 133 S. Ct. 2151 (2013), 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.
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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
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).
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.
As appellant’s petition, his third, is patently untimely and appellant has
failed to plead and prove the applicability of any exception to the PCRA’s
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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.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2017
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