Com. v. Scott, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH DANIEL SCOTT :
:
Appellant : No. 1598 WDA 2019
Appeal from the PCRA Order Entered November 12, 2019
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001776-2011
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 18, 2021
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant, Joseph Daniel Scott, appeals from the November 12, 2019
order1 dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.2 We affirm.
The record demonstrates that on September 21, 2012, a jury found
Appellant guilty of rape of a child (2 counts), involuntary deviate sexual
intercourse with a child less than 13 years of age (4 counts), aggravated
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1 Initially, Appellant appealed the order in which the PCRA court issued
Appellant notice of its intent to dismiss his petition pursuant to Pa.R.Crim.P.
907 and further provided Appellant twenty days to file a response. This order
was dated October 7, 2019, and entered on the docket on October 8, 2019.
Appellant filed his notice of appeal on October 24, 2019, before the expiration
of the twenty-day period to file a response to the PCRA court’s Rule 907 notice
and before the PCRA court entered a final order dismissing Appellant’s PCRA
petition. On November 12, 2019, the PCRA court, by final order, formally
dismissed Appellant’s PCRA petition as untimely and without exception.
An appeal properly lies from the order dismissing the PCRA petition and not
from the Rule 907 notice of intent to dismiss the petition. See
Commonwealth v. Beatty, 207 A.3d 957, 960 (Pa. Super. 2019) (holding,
that an appellant’s notice of appeal was prematurely filed after the PCRA court
provided notice of its intent to dismiss the petition but before the PCRA court
entered an order dismissing the petition). Here, Appellant filed his notice of
appeal prematurely on October 24, 2019, and, therefore, we deem it to be
filed on November 12, 2019. See Pa.R.A.P. 905(a)(5) (stating, “[a] notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof”). The caption has been corrected accordingly.
2In a December 20, 2019 per curiam order, this Court dismissed Appellant’s
appeal for failure to file a docketing statement pursuant to Pa.R.A.P. 3517.
Appellant filed the required docketing statement and a motion to reinstate the
appeal on December 30, 2019. In a per curiam order, this Court reinstated
Appellant’s appeal on January 2, 2020.
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indecent assault of a child less than 13 years of age - forcible compulsion or
threat of forcible compulsion (1 count), sexual assault (5 counts), statutory
sexual assault (5 counts), incest (2 counts), indecent assault of a person less
than 13 years of age (1 count), corruption of minors (2 counts), aggravated
indecent assault - forcible compulsion or threat of forcible compulsion (1
count), indecent assault - forcible compulsion (1 count), and endangering the
welfare of a child by parent or guardian (1 count).3 Appellant’s convictions
stemmed from his sexual abuse of his daughters, K.S., born April 1995, and
J.S., born April 1998.
On January 8, 2013, the trial court sentenced Appellant to an aggregate
sentence of 60 to 120 years’ incarceration. This Court affirmed Appellant’s
judgment of sentence on December 24, 2014. Commonwealth v. J.D.S.,
420 WDA 2013, 2014 WL 10754058 (Pa. Super. Dec. 24, 2014) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
our Supreme Court. See Pa.R.A.P. 1113(a) (stating, a petition for allowance
of appeal must be filed with our Supreme Court within 30 days of the entry of
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3 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3124.1, 3122.1, 4302,
3126(a)(7), 6301(a)(1), 3125(a), 3126(a)(2), and 4304(a)(1), respectively.
In convicting Appellant of indecent assault of a person less than 13 years of
age, 18 Pa.C.S.A. § 3126(a)(7), and indecent assault - forcible compulsion,
18 Pa.C.S.A. § 3126(a)(2), the jury found, beyond a reasonable doubt, that
there was a course of conduct of indecent assault committed by Appellant.
See Verdict Slip, 10/17/12, at unnumbered pages 2-3.
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an order of this Court). Rather, on January 25, 2015, Appellant’s counsel4
filed a petition for leave to file a petition for allowance of appeal nunc pro tunc
that our Supreme Court subsequently denied on February 20, 2015.
On February 11, 2016, Appellant submitted a pro se filing which he
referred to as a motion to modify and reduce his sentence nunc pro tunc
(“requested sentencing modification” or “February 11, 2016 filing”).5 The trial
court denied Appellant’s requested sentencing modification on February 18,
2016. On February 23, 2016, Appellant filed pro se a PCRA petition using the
standard inmate form. PCRA counsel was appointed to represent Appellant.6
On January 31, 2017, PCRA counsel filed an amended petition, together with
a supporting brief, that sought correction of Appellant’s sentence. In his
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4Appellant was represented by Washington County Deputy Public Defender
Brian V. Gorman, Esquire (“Attorney Gorman”).
5Appellant’s requested sentencing modification was docketed on February 11,
2016. This filing does not contain Appellant’s signature and is not dated.
Appellant hand-wrote that the filing was submitted on “Dated:
___/___/2015.” The Clerk of Courts of Washington County received additional
correspondence from Appellant requesting certain case information and
entered this correspondence on the docket on February 11, 2016. Appellant’s
pro se correspondence was signed by Appellant and dated October 26, 2015.
6 On March 9, 2016, the PCRA court appointed Timothy J. Lyons, Esquire as
Appellant’s PCRA counsel. On July 1, 2016, the PCRA court appointed J.
Andrew Salemme, Esquire to represent Appellant. On March 14, 2019, the
PCRA court granted Attorney Salemme’s motion to withdraw from
representation of Appellant and appointed Molly McGuire-Gaussa, Esquire to
represent Appellant. On January 27, 2020, Attorney Salemme reentered his
appearance as retained collateral-appeal counsel for Appellant.
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amended PCRA petition, Appellant argued, inter alia, that his requested
sentencing modification should have been deemed a PCRA petition and that it
was timely filed in October 2015, pursuant to the prisoner mailbox rule. 7 See
Amended PCRA Petition, 1/31/17, at 4-5. Appellant asserted, alternatively,
that if the requested sentencing modification was determined to be untimely
filed for purposes of the PCRA jurisdictional time-bar, that the PCRA court had
jurisdiction over the matter pursuant to the newly-discovered facts exception
to the one-year time-bar. Id. at 5; see also 42 Pa.C.S.A. § 9545(b)(1)(ii).
On November 8, 2017, the Commonwealth submitted a response to
Appellant’s PCRA petition. The PCRA court conducted an evidentiary hearing
on June 11, 2018, leaving the record open for purposes of clarifying the
existence of certain Pennsylvania Department of Corrections logbooks and
other records, which supported Appellant’s argument that he placed his
requested sentencing modification into the hands of prison authorities in
October 2015. See PCRA Court Order, 6/12/18. Counsel was also instructed
to review and resolve admissibility concerns regarding cellular telephone text
messages between Appellant’s brother and Attorney Gorman. Id. The PCRA
court conducted a second evidentiary hearing on December 21, 2018, at which
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7 The prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he, or she, delivers it to prison authorities for
mailing. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super.
2011).
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Appellant submitted proposed findings of fact and conclusions of law. The
PCRA court permitted the Commonwealth to submit the same within sixty
days.8
On October 8, 2019, the PCRA court provided Appellant notice of its
intent to dismiss his PCRA petition pursuant to Rule 907, allowing Appellant
twenty days to file a response. Appellant did not file a response.9 On
November 12, 2019, the PCRA court dismissed Appellant’s PCRA petition (filed
February 23, 2016) as untimely and without exception. This appeal
followed.10
Appellant raises the following issues for our review:
[1.] Whether the PCRA court erred in finding that [Appellant’s
requested sentencing modification] was not timely filed
under the prisoner mailbox rule where he placed documents
into [a] prison authorit[y’s] hands, which would have been
construed as a PCRA petition, prior to the one-year
[jurisdictional] time[-]bar elapsing?
[2.] Whether the PCRA court erred in finding that [Appellant’s
requested sentencing modification] was not timely filed
under the newly-discovered fact exception [to the PCRA
jurisdictional time-bar] based on [Attorney Gorman’s]
abandonment?
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8 The Commonwealth did not file proposed findings of fact or conclusions of
law.
9 As noted supra, Appellant filed a notice of appeal on October 24, 2019, not
a response to the PCRA court’s Rule 907 notice.
10 Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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[3.] Whether, in the alternative, the PCRA court erred in not
finding that the PCRA jurisdictional time-bar is
unconstitutional as applied in this case?
[4.] Whether the PCRA court erred in finding that [Appellant] is
not entitled to habeas corpus and/or coram nobis relief if his
petition is considered time-barred?
[5.] Whether the [PCRA] court erred in finding that [Appellant
was] not entitled to be re-sentenced where his sentence
[was] illegal on its face because unconstitutional mandatory
minimum sentences were imposed?
[6.] Whether [Attorney Gorman] was ineffective in failing to
challenge the legality of [Appellant’s] sentence where he
was sentenced illegally under mandatory minimum statutes
that were declared unconstitutional?
[7.] Whether [Attorney Gorman] was ineffective in failing to
present the testimony of [a witness], which would have
demonstrated that [Appellant] did not supply [one of the
victims,] or any other minor[,] with alcohol, as well as in
declining to call [another witness] to testify that she, and
not [Appellant], applied lotion to [one of the victims’ and
Appellant’s niece’s bodies]?
[8.] Whether [Attorney Gorman] was ineffective in failing to [use
reports by four separate professionals to] refresh [the
recollection of one of the victims to show that counselors
and social workers asked whether Appellant sexually abused
the victim]?
[9.] Whether [Attorney Gorman] was ineffective in failing to
object to extensive hearsay testimony from Trooper Sara
Teagarden, which the [PCRA] court in its Rule 1925(a)
decision treated as substantive evidence that corroborated
[one of the victims’] trial testimony.
[10.] Whether the Commonwealth violated Brady [v. Maryland,
373 U.S. 83 (1963)] by failing to disclose material
impeachment evidence that [Appellant’s niece] had told the
prosecutor [] that she observed pornography on
[Appellant’s] computer and that she observed [one of the
victims] in bed with [Appellant] and he was holding her
closely, but had not disclosed such a statement previously?
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[11.] Whether due to cumulative errors on the part of [Attorney
Gorman, Appellant] is entitled to a new trial?
Appellant’s Brief at 11-13 (record citation and extraneous capitalization
omitted).
Preliminarily, we consider the nature of Appellant’s pro se requested
sentencing modification submitted on February 11, 2016. We recognize that
this Court in Commonwealth v. Johnson, and its progeny, held that, “the
PCRA provides the sole means for obtaining collateral review, and that any
petition filed after the judgment of sentence becomes final will be treated as
a PCRA petition.” Commonwealth v. Johnson, 803 A.2d 1291, 1293
(Pa. Super. 2002); see also Commonwealth v. Taylor, 65 A.3d 462, 466
(Pa. Super. 2013). This Court, however, later clarified the proposition set
forth in Johnson. In Commonwealth v. Wrecks, this Court stated that any
petition filed after the judgment of sentence became final would be treated as
a PCRA petition if it requested relief contemplated by the PCRA.
Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007); see
also Commonwealth v. Torres, 223 A.3d 715, 716 (Pa. Super. 2019)
(stating, “so long as a pleading falls within the ambit of the PCRA, the court
should treat any pleading filed after the judgment of sentence is final as a
PCRA petition” (citation omitted)); Commonwealth v. Snook, 230 A.3d 438,
443-444 (Pa. Super. 2020) (holding, a petition for collateral relief will not be
considered a PCRA petition unless it raises issues cognizable under the PCRA).
The Wrecks Court held that because the defendant’s petition requested relief
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with respect the discretionary aspects of sentence, and such relief was not
cognizable under the PCRA, the petition was correctly viewed as a
post-sentence motion and not as a PCRA petition. Wrecks, 934 A.2d at 1289.
Conversely, the Taylor Court held that a petition challenging the legality of
sentence on the grounds the sentence exceeded the statutory limit was
“undoubtedly cognizable under the PCRA” and, therefore, any such petition,
regardless of its title, was to be treated as a PCRA petition. Taylor, 65 A.3d
at 467, citing 42 Pa.C.S.A. § 9543(a)(2)(vii).11
Instantly, Appellant, in his pro se requested sentencing modification,
averred, in pertinent part, as follows:
3. [Appellant] contends that the [trial] court erred by deviating
from the standard sentencing range and fail[ed] to provide
adequate reasons for the illegal sentence range and for the
deviation [on] the record.
4. Considering the [Pennsylvania] sentencing code as a whole, 42
Pa.C.S.A. §§ 9721 et seq., the deviation from the guidelines []
was excessive and unreasonable[.]
5. The [trial] court [] failed to give appropriate weight to the
circumstances of the [] offense and [Appellant’s] background[,
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11 We reject the suggestion in Taylor that Wrecks is not entitled to
precedential effect because it disregarded prior case law. This Court in
Commonwealth v. Hromek recently reaffirmed Wrecks’ holding that,
regardless of how a filing is titled, a petition should be treated as filed under
the PCRA if it is filed after the judgment of sentence becomes final and seeks
relief provided under the PCRA. Commonwealth v. Hromek, 232 A.3d 881,
884 (Pa. Super. 2020). Moreover, under the doctrine of stare decisis we are
bound by the logic of Wrecks, and its progeny, until it is reversed by our
Supreme Court or an en banc panel of this Court. See Commonwealth v.
Brigidi, 6 A.3d 995, 1001 (Pa. 2010), citing, Commonwealth v. Crowley,
605 A.2d 1256, 1257 (Pa. Super. 1992).
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including the knowledge that the accusations against Appellant
were based on hearsay and that Appellant agreed to DNA
testing and a polygraph test to prove his innocence.]
6. [Appellant] contends that the ineffectiveness of [Attorney
Gorman] subjected him to the [] lengthy illegal sentence [and
denied] him [] fair and adequate [representation] by counsel
who [was] competent[.]
7. [Appellant] is suffering from a severe mental disability and
contends that he has been denied a fair and partial [trial.
Furthermore,] his due process rights were violated by [the
trial] court and by [Attorney Gorman, who] misrepresented
him [and] coerced him into pleading guilty to a crime that was
only based [on] hearsay and not the facts.[12]
8. [Appellant] respectfully asks that [the trial] court in its
discretion [] reconsider the sentence imposed and substantially
reduce the term of incarceration[.]
Appellant’s Motion to Modify and Reduce Sentence Nunc Pro Tunc, 2/11/16,
at ¶¶3-8. In sum, Appellant claimed that the trial court deviated from the
Pennsylvania sentencing guidelines without stating, on the record at the time
of sentencing, adequate reasons for its deviation and failed to consider
Appellant’s background and mitigating circumstances prior to imposing its
sentence of 60 to 120 years’ incarceration. Despite Appellant’s passing
reference to the fact that his sentence was “illegal,” Appellant’s claims, as set
forth in his requested sentencing modification, present a challenge to the
discretionary aspects of his sentence, and do not give rise to a claim of an
illegal sentence. See Torres, 223 A.3d at 716 (stating, “[a] claim the trial
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12 Appellant was convicted of the aforementioned crimes by a jury, and
therefore, Attorney Gorman could not have “coerced” Appellant into pleading
guilty, as Appellant alleges.
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court failed to consider mitigating circumstances is a challenge to the
discretionary aspect of sentence”), citing Commonwealth v. DiClaudio, 210
A.3d 1070, 1075-1076 (Pa. Super. 2019); see also Commonwealth v.
Robinson, 931 A.2d 15, 26 (Pa. Super. 2007) (stating, claims that the trial
court “imposed an unreasonable and excessive sentence, outside of the
guidelines, without providing an adequate explanation” is a challenge of the
discretionary aspects of sentence). Therefore, we discern no error in the trial
court’s treatment of Appellant’s February 11, 2016 filing as an untimely
post-sentence motion to modify his sentence. See Pa.R.Crim.P. 720(A)(1)
(stating, “a written post-sentence motion shall be filed no later than 10 days
after imposition of sentence”). Consequently, Appellant was not entitled to
the appointment of counsel upon the filing of his requested sentencing
modification.13
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13 Although Appellant spends the lion’s share of his requested sentencing
modification discussing a challenge to the discretionary aspects of his
sentence, we acknowledge his cursory references to Attorney Gorman’s
representation as “ineffective” and his sentence as “illegal.” See Appellant’s
Motion to Modify and Reduce Sentence Nunc Pro Tunc, 2/11/16, at ¶6.
Broadly construed, these averments could be viewed as falling within the
scope of the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii) and (vii). Viewed as
such, Appellant’s requested sentencing modification would be deemed a
petition for collateral relief. See Wrecks, 934 A.2d at 1289. If we were to
review Appellant’s requested sentencing modification as a PCRA petition,
Appellant would enjoy a rule-based right to counsel and the filing would be
subject to the PCRA’s one-year jurisdictional time bar.
Ordinarily, a petitioner is entitled to the appointment of counsel on his, or her,
first PCRA petition. See Pa.R.Crim.P. 904(C) (stating, “when an
unrepresented [petitioner] satisfies the [PCRA court] that the [petitioner] is
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unable to afford or otherwise procure counsel, the [PCRA court] shall appoint
counsel to represent the [petitioner] on the [petitioner's] first petition for
post-conviction collateral relief”). It is the practice of Pennsylvania courts to
rigorously enforce the right to counsel on a first PCRA petition, even in cases
where the petition is patently untimely. See Commonwealth v. Smith, 818
A.2d 494, 498-501 (Pa. 2003). The purpose of this convention is to afford
first-time petitioners the benefit of counseled advocacy in establishing the
timeliness of, and, hence, jurisdiction over, their claims. Id. at 501. When a
first petition is filed outside the one-year limitations period and the right to
counsel has been denied, our usual practice is to vacate the dismissal order
and remand the case to allow for the appointment of counsel.
Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (holding,
“where an indigent, first-time PCRA petitioner was denied his right to
counsel - or failed to properly waive that right - this Court is required to raise
this error sua sponte and remand for the PCRA court to correct that mistake”).
In the instant case, if Appellant’s requested sentencing modification was
deemed a PCRA petition, the PCRA court would have erred in failing to appoint
counsel prior to its dismissal of the filing. Typically, we would need to vacate
the dismissal order and remand for the appointment of counsel. The order
denying Appellant’s requested sentencing modification, however, is not the
subject of the instant appeal, Appellant did not appeal that dismissal order.
Moreover, the record reflects that Appellant had the benefit of assistance from
counsel in litigating issues surrounding the timeliness of his requested
sentencing modification. As discussed in detail, infra, Appellant’s judgment of
sentence became final on January 23, 2015, and the ensuring deadline for
filing a timely PCRA petition was January 25, 2016. To overcome the
untimeliness of the requested sentencing modification, Appellant relied upon
the prisoner mailbox rule. The PCRA court held an evidentiary hearing on,
inter alia, the issues pertaining to the untimeliness of the requested
sentencing modification, i.e. the prisoner mailbox rule. At the hearing,
Appellant offered only bald assertions that he delivered the requested
sentencing modification to prison authorities in October 2015, which the trial
court did not find credible. N.T., 6/11/18, at 21-22, 24-27; see also PCRA
Court Opinion, 4/14/20, at 19 (stating, Appellant “failed to provide sufficient
evidence that, even with the application of the prisoner mailbox rule, the
[requested sentencing modification] was timely filed within the one-year time
limit”). A review of the record demonstrates that Appellant did not present
evidence, such as prison logbooks definitely demonstrating that the requested
sentencing modification had been deposited into the hands of prison
authorities in October 2015, or documentation showing a deduction from
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Next, we must examine whether Appellant’s pro se PCRA petition was
timely filed on February 23, 2016, thereby, implicating the trial court’s
jurisdiction to entertain the petition.
Our standard of review in a PCRA appeal requires [appellate
courts] to determine whether the PCRA court's findings of fact are
supported by the record, and whether its conclusions of law are
free from legal error. The scope of our review is limited to the
findings of the PCRA court and the evidence of record, which we
view in the light most favorable to the party who prevailed before
[the PCRA] court. []The PCRA court's factual findings and
credibility determinations, when supported by the record, are
binding upon [appellate courts]. However, [appellate courts]
review the PCRA court's legal conclusions de novo.
Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citations
omitted).
Our Supreme Court has instructed,
Any PCRA petition, including a second or subsequent petition,
must be filed within one year of the date that the petitioner’s
judgment of sentence becomes final. 42 Pa.C.S.[A.]
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Appellant’s prison account for postage, in support of his assertions.
Appellant’s requested sentencing modification, if viewed as a PCRA petition,
was filed on February 11, 2016, and therefore, would be patently untimely as
explained more-fully, infra. Appellant would need to demonstrate an
exception to the jurisdictional time-bar, and for the reasons set forth infra,
Appellant failed to establish the newly-discovered fact exception to the
jurisdictional time-bar. Therefore, a remand for the appointment of counsel
on Appellant’s February 11, 2016 filing would be futile. See Commonwealth
v. Snook, 230 A.3d 438, 445 n.2 (Pa. Super. 2020); see also
Commonwealth v. Perry, 563 A.2d 511, 514 (Pa. Super. 1989) (stating,
there is “no reason to remand for the pointless and formalistic repetition of
PCRA proceedings, when the outcome would nonetheless be a foregone
conclusion”).
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§ 9545(b)(1). [T]he PCRA’s timing provisions [are] jurisdictional
in nature, and no court may entertain an untimely PCRA petition.
Small, 238 A.3d at 1280. “A judgment becomes 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
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). Our Supreme
Court has long-held that the PCRA’s time restriction is constitutionally sound.
Commonwealth v. Peterkin, 722 A.2d 638, 643 n.5 (Pa. 1998); see also
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999), Commonwealth
v. Cruz, 852 A.2d 287, 292 (Pa. 2004).
Here, the trial court sentenced Appellant on January 8, 2013. This Court
affirmed the judgment of sentence on December 24, 2014. Appellant did not
file a petition for discretionary review with our Supreme Court. 14 Appellant’s
judgment of sentence, therefore, became final on January 25, 2015, upon the
expiration of the time for seeking discretionary review with our Supreme
Court. See Pa.R.A.P. 1113(a) (stating, “a petition for allowance of appeal
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14 Attorney Gorman filed a petition for leave to file a petition for allowance of
appeal nunc pro tunc with our Supreme Court three days after the deadline
on which to file a timely petition for allowance of appeal. Our Supreme Court
denied Appellant’s request. The filing of a petition for leave to file a petition
for allowance of appeal nunc pro tunc does not alter the date on which a
judgment of sentence became final. See Commonwealth v. Hutchins, 760
A.2d 50, 54 (Pa. Super. 2000) (stating, the untimely filing of a petition for
allowance of appeal with our Supreme Court “does not operate to circumvent
the clear and unambiguous language contained in Section 9545(b)(3) by
altering the date on which Appellant's conviction became final”).
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shall be filed with the Prothonotary of [our] Supreme Court within 30 days
after the entry of the order of [this Court]”). Accordingly, in order to file a
timely PCRA petition, Appellant was required to file the petition on or before
January 25, 2016.15 Consequently, Appellant’s pro se PCRA petition filed on
February 23, 2016, is patently untimely.
If a PCRA petition is untimely filed, the jurisdictional time-bar can only
be overcome if the petitioner alleges and proves one of the three statutory
exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions
to the one-year time-bar are as follows: “(1) interference by government
officials in the presentation of the claim; (2) newly[-]discovered facts; and (3)
an after-recognized constitutional right.” Commonwealth v. Brandon, 51
A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
A petition invoking an exception to the jurisdictional time-bar must be filed
within sixty days of the date that the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2) (effective January 16, 1996, to December 24, 2018).16
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15 We note that one year from the date Appellant’s judgment of sentence
became final, i.e. January 23, 2016, was a Saturday. Therefore, Appellant
had until Monday, January 25, 2016, in which to file a timely PCRA petition.
See 1 Pa.C.S.A. § 1908 (stating, that when the last day of any period of time
referred to in a statute falls on a Saturday or Sunday, that day shall be omitted
from the computation).
16 We note that effective December 24, 2018, the time period in which to file
a petition invoking one of the three exceptions was extended from sixty days
to one year. 42 Pa.C.S.A. § 9545(b)(2) (current version). This amendment
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If an appellant fails to invoke a valid exception to the PCRA time-bar,
Pennsylvania courts are without jurisdiction to review the petition or provide
relief. Spotz, 171 A.3d at 676.
Here, Appellant raises the newly-discovered facts exception to the
jurisdictional time-bar. See Appellant’s Amended PCRA Petition, 1/31/17,
at ¶10; see also Appellant’s Brief at 27-35. Appellant contends that the
newly-discovered fact was Appellant learning that Attorney Gorman
abandoned Appellant when counsel failed to file a timely petition for allowance
of appeal. Appellant’s Brief at 28-29. Appellant asserts that Attorney
Gorman’s failure to file a timely petition for allowance of appeal constituted
per se ineffectiveness of counsel. Id. Appellant alleges that if Attorney
Gorman had filed a timely petition for allowance of appeal, then his PCRA
petition, filed February 23, 2016, would have been timely because Appellant
would have had until April 2016, to file a timely PCRA petition.17
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applies to claims arising one year prior to the effective date of the amendment,
that is to say arising on December 24, 2017, or later. Act 2018, Oct. 24, P.L.
894, No. 146, § 3. Because Appellant filed his PCRA petition on February 23,
2016, this amendment does not apply.
17 Appellant’s argument is based upon the premise that if Attorney Gorman
had filed a timely petition for allowance of appeal in January 2015 and our
Supreme Court subsequently denied the petition, Appellant would have had
ninety days in which to file a petition for writ of certiorari with the United
States Supreme Court. Appellant’s judgment of sentence would have become
final upon the denial of certiorari, and under Appellant’s hypothetical scenario,
“[he] would have had until April [2016,] to file his PCRA petition.” Appellant’s
Brief at 33.
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In a recent decision, our Supreme Court reiterated that the
newly-discovered fact exception “renders a petition timely when the petitioner
establishes that [‘]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.[’]” Small, 238 A.3d 1267, 1271 (Pa. 2020), quoting 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Our Supreme Court explained that a PCRA court must first
determine “whether the facts upon which the claim is predicated were
unknown to the petitioner” based upon a circumstance-dependent analysis of
the petitioner’s knowledge. Id. at 1282-1283 (original quotation marks
omitted). If the PCRA court concludes that the facts were unknown, then the
PCRA court must examine whether “the facts could have been ascertained by
the exercise of due diligence, including an assessment of the petitioner's
access to public records.” Id. (citation omitted). The Small Court defined
“due diligence” as a “flexible concept that varies with the context of a given
case[.]” Id. at 1284.
Allegations of ineffective assistance of counsel typically cannot be
invoked as a newly-discovered fact pursuant to Section 9545(b)(1)(ii).
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000). In
Commonwealth v. Bennett, our Supreme Court distinguished between
counsel’s ineffectiveness that completely deprived Bennett of the appellate
review to which he was entitled and ineffectiveness that only narrowed the
ambit of appellate review. Commonwealth v. Bennett, 930 A.2d 1264,
1273 (Pa. 2007). The Bennett Court held that counsel’s failure to file a
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requested direct appeal or a Pa.R.A.P. 1925(b) statement was “the functional
equivalent of having no counsel at all” and, thus, completely deprived Bennett
of “the presentation of claims at a meaningful time and in a meaningful
manner.” Id. When a defendant is completely deprived of appellate review
due to counsel’s action, or lack of action, counsel is per se ineffective, the
Bennett Court opined, and this per se ineffectiveness may serve as a
newly-discovered fact for purposes of Section 9545(b)(1)(ii). Id. Our
Supreme Court in Commonwealth v. Peterson reiterated, “that the
important distinction for purpose of application of the [Section] 9545(b)(1)(ii)
exception is whether counsel’s alleged ineffectiveness results in a partial
deprivation of review (Gamboa-Taylor and its progeny) or instead
completely deprives [the] client of review. See Bennett, 930 A.2d at
1272-[12]74.” Commonwealth v. Peterson, 192 A.3d 1123, 1131 (Pa.
2018).
This Court, in Commonwealth v. Williamson, extended the holding in
Bennett to apply “where counsel failed to file a timely petition for allowance
of appeal with [our] Supreme Court.” Commonwealth v. Williamson, 21
A.3d 236, 242 (Pa. Super. 2011). The Williamson Court reasoned that,
Counsel's ineffectiveness did not serve to narrow the ambit of
claims for review, but instead denied Williamson review of this
Court's affirmance of the [trial] court's order[.] Thus, [the
ineffectiveness] claim is more akin to the claim addressed in
Bennett than in Gamboa-Taylor.
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Id. “Counsel's failure to file a timely petition for allowance of appeal could be
considered a newly-discovered fact for purposes of [S]ection 9545(b)(1)(ii)”
if the exception were presented within the time-limitations set forth in
Section 9545(b)(2). Id.Here, Attorney Gorman failed to file a timely petition for allowance of
appeal with our Supreme Court. Accordingly, Attorney Gorman was per se
ineffective and his filing of a petition for leave to file a petition for allowance
of appeal nunc pro tunc did not negate his per se ineffectiveness. See
Williamson, 21 A.3d at 242 (stating, “a petitioner is entitled to counsel
throughout the collateral proceedings, including the appellate process, which
includes the filing of a petition for allowance of appeal to the Supreme Court”).
Therefore, Attorney Gorman’s per se ineffectiveness may constitute a
newly-discovered fact for purposes of Section 9545(b)(1)(ii) provided
Appellant demonstrated that he was unware of Attorney Gorman’s failure to
file a timely petition for allowance of appeal and that he could not have
discovered this fact through the exercise of due diligence. Id.; see also
Bennett, 930 A.2d at 1274 (stating, the petitioner bears the burden of
establishing that the fact was “unknown” and that he, or she, could not have
discovered it upon the exercise of “due diligence”). Finally, in order to invoke
the newly-discovered fact exception to the PCRA jurisdictional time-bar,
Appellant must have presented his claim within sixty days of discovering this
new fact. Williamson, 21 A.3d at 242; see also 42 Pa.C.S.A. § 9545(b)(2)
(effective January 16, 1996, to December 24, 2018).
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The PCRA court, in finding that Appellant was aware of the status and
the procedural posture of his direct appeal but, nonetheless, failed to exercise
due diligence to protect his own interests in the matter, stated,
At the evidentiary hearing, [Appellant] testified that following his
sentencing he never heard from Attorney Gorman again.
[Appellant] also testified that he tried to get in contact with
Attorney Gorman, via letter, after his sentencing, to discuss
proceeding with his case. However, the letter allegedly written to
Attorney Gorman was not offered into evidence, only [Appellant’s]
testimony regarding the letter. There was no testimony or
evidence offered to show that [Appellant] attempted to call
Attorney Gorman, or that he contacted the Clerk of Courts [of
Washington County] to check the status of his case. [Appellant]
did write a letter to the Clerk of Courts on October 26, 2015, within
the statutory time limit, which demonstrates that [Appellant]
knew he could seek information from the Clerk of Courts.
However, not once did [Appellant] make an attempt to discuss
perfecting a collateral appeal on his behalf.
Additionally, Attorney Gorman’s testimony demonstrates that
[Appellant] was aware of the status of his case. Attorney Gorman
testified that he did file a direct appeal on [Appellant’s] behalf and
that it was his normal practice to send his clients the decisions
issued by [this Court], which would include the decision of [this
Court] affirming [Appellant’s] judgment of sentence. Attorney
Gorman further testified that he was in contact with [Appellant’s]
brother[] throughout [Appellant’s] proceedings and during the
appeal process. Attorney Gorman also indicated that he could not
specifically recall if he sent [notice of our] Supreme Court's denial
[of the request to file a petition for allowance of appeal nunc pro
tunc] to [Appellant], but it was his normal practice to do so and
he fully expects that he did. Attorney Gorman added that he was
corresponding with [Appellant] while [Appellant] was incarcerated
following his sentencing. Attorney Gorman went on to testify that
he did not recall the return of any of the letters he had sent to
[Appellant].
PCRA Court Opinion, 4/14/20, 20-21 (footnotes omitted).
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A review of the record demonstrates that although Attorney Gorman
could not recall his exact correspondence with Appellant post-sentencing, as
a matter of practice, Attorney Gorman discussed post-sentence rights,
including appellate rights, with his clients. N.T., 6/11/18, at 42. Attorney
Gorman filed a direct appeal with this Court on behalf of Appellant, but
admittedly failed to file a timely petition for allowance of appeal after this
Court affirmed Appellant’s sentence on December 24, 2014. Id. at 44, 51.
Rather, Attorney Gorman filed a petition for leave to file a petition for
allowance of appeal nunc pro tunc with our Supreme Court, which our
Supreme Court subsequently denied. Id. at 44. Attorney Gorman testified
that although he does not recall giving Appellant notice of this Court’s
affirmance of his sentence, of his filing of a petition for leave to file a petition
for allowance of appeal nunc pro tunc, or of our Supreme Court’s denial of
said petition, it was his practice to provide his clients, including Appellant, with
notice of all court decisions and all significant documents. Id. at 44-46,
52-55. Attorney Gorman stated that he corresponded with Appellant during
this time period, via written correspondence, and that he did not recall
receiving the return of his letters as undeliverable. Id. at 48-49. Attorney
Gorman also spoke with Appellant’s brother throughout Appellant’s trial and
appeal process because Appellant’s brother was the primary contact for
Appellant’s family and because Appellant’s brother was “the one trying to do
the legwork for [Appellant] on the outside.” Id. at 48, 57. Attorney Gorman
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further testified that it was his practice to discuss any rights his clients may
have had under the PCRA. Id. at 46.
At the PCRA evidentiary hearing, Appellant offered only bald,
self-serving assertions that he was unaware of his direct appeal status,
including Attorney Gorman’s failure to file a timely petition for allowance of
appeal, and that he only learned of the status and procedural posture of his
direct appeal from his prior PCRA counsel in March 2016. N.T., 6/11/18, at
24, 27-28. Appellant contradicted his assertion that he lacked knowledge of
Attorney Gorman’s abandonment when he first stated he was unaware, in
October 2015, that Attorney Gorman filed a direct appeal with this Court, but
then stated that, in October 2015, he believed that his appeal was still
pending. Id. at 24. Appellant’s assertion that he lacked knowledge of
Attorney Gorman’s abandonment was further contradicted by Appellant’s pro
se PCRA petition, filed February 23, 2016. In his pro se PCRA petition where
the standard inmate form asked what prior actions were taken to secure relief
from his convictions or sentence, Appellant answered that he was aware that
this Court affirmed his judgment of sentence and that our Supreme Court
denied his petition for allowance of appeal. See Pro Se PCRA Petition,
2/23/16, at 4.
In viewing the evidence in the light most favorable to the
Commonwealth, as the prevailing party at the PCRA court level, we concur
with the PCRA court that Appellant failed to plead and prove that he was
unaware of the status and procedural posture of his direct appeal or that he
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lacked knowledge concerning Attorney Gorman’s failure to file a timely petition
for allowance of appeal. Moreover, Appellant failed to demonstrate why he
could not have discovered these facts earlier through the exercise of due
diligence. While we understand the limitations that incarceration places on
the acquisition of information, our Supreme Court has recognized that one
means for an incarcerated petitioner to exercise due diligence sufficient to
invoke the newly-discovered fact exception was for the incarcerated petitioner
to write the PCRA court in an effort to learn the status of his case. See
Bennett, 930 A.2d at 1272 (stating, the petitioner alleged that he exercised
due diligence sufficient to satisfy the requirement of the newly-discovered fact
exception by providing a description of the steps he took to ascertain the
status of his appeal, including writing to the PCRA court). In the case sub
judice, Appellant never averred specific steps he took to obtain information
regarding the status of his case. By his own admission, however, Appellant
was capable of writing Attorney Gorman, and the record demonstrates
Appellant’s understanding and capacity to write the PCRA court. Appellant
also stated that he was able to correspond with his brother, who did
Appellant’s “legwork on the outside.” Appellant’s brother stated that he
periodically called or sent text messages via his cellular telephone to Attorney
Gorman to get updates about his brother’s case and to ask specific questions.
N.T., 12/21/18, at 23. Despite Appellant’s ability to communicate with
Attorney Gorman, his brother, and the PCRA court, Appellant failed to
demonstrate that he ever made inquiries regarding the status of his case
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sufficient to satisfy the requirements of the newly-discovered fact exception.
Appellant, therefore, failed to plead and prove the newly-discovered fact
exception to the jurisdictional time-bar. As such, we discern no error or abuse
of discretion in the PCRA court’s dismissal of Appellant’s PCRA petition as
patently untimely and without exception.
In his third issue,18 Appellant claims that the PCRA court erred in finding
the PCRA jurisdictional time-bar constitutionally sound. Appellant’s Brief at
35-59. Appellant argues that the case law declaring the PCRA time-bar to be
jurisdictional in nature was erroneously decided and that the time-bar was
intended to be akin to a statute of limitations. Id. at 38 n.8. Appellant asserts
that, “[t]he passage of the PCRA statute and the legislature’s subsequent
adoption of the one year time-bar[] cannot be said to afford procedural and
substantive due process in this case.” We disagree.
Our Supreme Court has long-held that,
The purpose of [the PCRA] is not to provide convicted criminals
with the means to escape well-deserved sanctions, but to provide
a reasonable opportunity for those who have been wrongly
convicted to demonstrate the injustice of their conviction.
Peterkin, 722 A.2d at 643; see also Small, 238 A.3d at 1277. Because the
PCRA is civil in nature, and not part of the criminal process, “due process
requires that the post[-]conviction process be fundamentally fair” and that the
____________________________________________
18We address Appellant’s third, fourth, and fifth issues because the issues do
not require a merits review of Appellant’s underlying petition.
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petition be “given the opportunity for the presentation of claims at a
meaningful time and in a meaningful manner.” Bennett, 930 A.2d at 1273.
As the Bennett Court explained, the PCRA jurisdictional time-bar is
constitutionally applied to a petitioner with a patently untimely PCRA petition
(such as in the case sub judice) by affording the petitioner the opportunity to
plead and prove counsel’s abandonment as the newly-discovered fact
exception to the one-year time-bar. See Bennett, 930 A.2d at 1273-1274.
For over two decades, our Supreme Court has steadfastly held to the view
that the PCRA time-bar is jurisdictional in nature because the “time limitations
go to a court’s right or competency to adjudicate a controversy” and the
jurisdictional time-bar is constitutionally sound. Commonwealth v. Reid,
235 A.3d 1124, 1167 (Pa. 2020). We find no compelling reason set forth by
Appellant to find exception to the constitutional validity of the PCRA
jurisdictional time-bar as applied to the circumstances herein. See Bennett,
930 A.2d at 1273 (recognizing that, while the PCRA jurisdictional time-bar has
been declared constitutional, generally, this does not mean that it is
constitutional as applied to all petitioners); see also Reid, 235 A.3d at 1168
n.27 (stating that, such an “allegation of constitutional infirmity is completely
unfounded” when the petitioner “has been put out of court only because he
himself failed to preserve his claim or advance it at the opportune moment”
(original quotation marks omitted)).
We address Appellant’s fourth and fifth issues in tandem. In his fourth
issue, Appellant argues, in the alternative, that if his PCRA petition is
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time-barred, the trial court erred by denying him habeas corpus or coram
nobis relief. Appellant’s Brief at 40-43. In his fifth issue, Appellant contends
that if his PCRA petition is time-barred and relief is not available under the
common law principles of habeas corpus or coram nobis, then “this Court has
jurisdiction to correct an illegal sentence outside of the PCRA context[.]” Id.
at 44.19
Section 9542 of the PCRA, in pertinent part, states,
[The PCRA] provides for an action by which persons convicted of
crimes they did not commit and persons serving illegal sentences
may obtain collateral relief. The action established in this
subchapter shall be the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies
for the same purpose that exist when this subchapter takes effect,
including habeas corpus and coram nobis.
42 Pa.C.S.A. § 9542 (emphasis added). It is well-settled under Pennsylvania
law that “pursuant to the plain language of Section 9542, where a claim is
cognizable under the PCRA, the PCRA is the only method of obtaining collateral
review.” Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016)
(citations omitted). “The PCRA at Section 9542 subsumes the remedies of
habeas corpus and coram nobis.’’ Id. (citation omitted); see also
____________________________________________
19 To the extent that Appellant relies on our Supreme Court’s holding in
Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007) to support his claim
that this Court has jurisdiction to correct his illegal sentence, we find this
reliance misplaced. See Commonwealth v. Jackson, 30 A.3d 516, 521
(Pa. Super. 2011) (stating that, our Supreme Court in Holmes “did not
establish an alternative remedy for collateral relief that sidesteps the
jurisdictional requirements of the PCRA”).
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Commonwealth v. Tedford, 228 A.3d 891, 904 n.10 (Pa. 2020) (stating,
“[i]f a petitioner’s claim falls under the parameters of the PCRA, it must be
litigated under the PCRA”).
Here, pursuant to then-effective Section 9718(a)(1) and (a)(3) of the
Pennsylvania Sentencing Code, Appellant received consecutive mandatory
minimum sentences of 10 to 20 years’ incarceration, each, on his convictions
for rape of a child (2 counts), 18 Pa.C.S.A. § 3121(c), and involuntary deviate
sexual intercourse with a child less than 13 years of age (3 counts), 18
Pa.C.S.A. § 3123(b), and a concurrent mandatory minimum sentence of 10 to
20 years’ incarceration on his conviction of aggravated indecent assault of a
child less than 13 years of age (1 count), 18 Pa.C.S.A. § 3125(b). See Trial
Court Sentencing Order, 1/11/13; see also Sentencing Hearing Transcript,
1/8/13. Section 9718(a)(1) and (a)(3), in pertinent part, stated,
§ 9718. Sentences for offenses against infant persons
(a) Mandatory sentence.—
(1) A person convicted of the following offenses when the
victim is under 16 years of age shall be sentenced to a
mandatory term of imprisonment as follows:
...
18 Pa.C.S.[A.] § 3123 (relating to involuntary deviate
sexual intercourse) – not less than five ten years.
...
(3) A person convicted of the following offenses shall be
sentenced to a mandatory term of imprisonment as
follows:
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18 Pa.C.S.[A.] § 3121(c) and (d) – not less than five ten
years.
...
18 Pa.C.S.[A.] § 3125(b) – not less than five ten years.
42 Pa.C.S.A. §§ 9718(a)(1) and (a)(3) (effective January 1, 2007, to August
18, 2014). Under Section 9718(c), the trial court, at the time of sentencing,
was required to determine, by a preponderance of the evidence, if [Section
9718] was applicable. Id. at § 9718(c) (effective January 1, 2007, to August
18, 2014).
Appellant claims that the mandatory minimum sentences he received
pursuant to 42 Pa.C.S.A. § 9718(a)(1) and (a)(3) are unconstitutional under
Alleyne v. United States, 570 U.S. 99 (2013),20 as that decision was applied
to Section 9718 by our Supreme Court in Commonwealth v. Wolfe, 140
A.3d 651, 663 (Pa. 2016) (stating that, Section 9718 was “irremediably
unconstitutional on its face, non-severable, and void”).
In Commonwealth v. Resto, however, our Supreme Court tailored its
holding in Wolfe, stating that, Section 9718(a)(3) “requires no proof of any
____________________________________________
20 In Alleyne, the United States Supreme Court held,
any 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. Mandatory minimum sentences
increase the penalty for a crime. It follows, then, that any
fact that increases the mandatory minimum is an “element”
that must be submitted to the jury.
Alleyne v. United States, 570 U.S. 99, 103 (2013) (citation omitted).
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predicate or aggravating facts” and, therefore, does not implicate the
protections afforded by Alleyne. Commonwealth v. Resto, 179 A.3d 18,
20-21 (Pa. 2018) (OAJC). Recently, this Court, in Commonwealth v.
Widger, held that, pursuant to Resto, Section 9718(a)(3) was constitutional
and that a trial court had the authority to impose a mandatory minimum
sentence of incarceration under that provision. Commonwealth v. Widger,
237 A.3d 1151, 1163 (Pa. Super. 2020) (noting that, because “the plurality’s
OAJC and the concurring opinions in Resto agree, Section 9718(a)(3) is
severable from the remainder of the subsections of the statute and a
mandatory minimum sentence imposed pursuant to Section 9718(a)(3), upon
the jury’s finding beyond a reasonable doubt that all of the elements of the
crime charged have been established, does not violate Appellant’s
constitutional rights pursuant to Alleyne). Therefore, because the
mandatory minimum sentences Appellant received for his convictions of
involuntary deviate sexual intercourse with a child less than 13 years of age
and aggravated indecent assault of a child less than 13 years of age were
imposed pursuant to Section 9718(a)(3), these sentences did not violate
Appellant’s constitutional rights pursuant to Alleyne. Consequently,
Appellant’s aforementioned sentences were not “illegal sentences.” As such,
we no longer address them in the context of Appellant’s fourth and fifth issues.
With regard to the mandatory minimum sentences Appellant received
for his conviction of rape of a child pursuant to Section 9718(a)(1), our
Supreme Court has held that challenges to a sentence under Alleyne
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implicate the legality of a sentence as contemplated by the PCRA. See
DiMatteo, 117 A.3d at 192; see also 42 Pa.C.S.A. § 9543(a)(2)(vii) (stating
that, to be eligible for PCRA relief, the petitioner must plead and prove by a
preponderance of the evidence, inter alia, that the sentence imposed was
greater than the lawful maximum, i.e. an illegal sentence); Commonwealth
v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (holding that, “an issue
pertaining to Alleyne goes to the legality of the sentence). Because
Appellant’s illegal sentence claim is cognizable under the PCRA, the PCRA
subsumes the remedies of habeas corpus and coram nobis. Consequently,
Appellant is not entitled to relief under these common law writs.
Appellant is correct that a challenge to a sentence premised upon
Alleyne cannot be waived on appeal, and this Court, generally, is “endowed
with the ability to consider an issue of illegality of sentence sua sponte.”
Miller, 102 A.3d at 995 (citation omitted). “However, in order for this Court
to review a legality of sentence claim, there must be a basis for our jurisdiction
to engage in such review.” Id., citing Commonwealth v. Borovichka, 18
A.3d 1242, 1254 (Pa. Super. 2011). Although “not technically [subject to
waiver], a legality of sentence claim may nevertheless be lost should it be
raised in an untimely PCRA petition for which no time-bar exception applies,
thus depriving the [PCRA] court of jurisdiction over the claim.” Miller, 102
A.3d at 995 (citation, original brackets, and ellipsis omitted); see also
DiMatteo, 117 A.3d at 192 (reiterating that, to be entitled to have an illegal
sentence remedied on collateral review, the petitioner must present the claim
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in a timely PCRA petition). Consequently, we may not address Appellant’s
illegal sentence claim because his PCRA was patently untimely and without
exception.
In short, the PCRA court lacked jurisdiction to review Appellant’s PCRA
petition, and we may not review the petition on appeal. Moreover, Appellant’s
constitutional challenges and his claims outside the ambit of the PCRA lack
merit. Hence, for the reasons set forth herein, Appellant is not entitled to
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2021
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