Com. v. S.P.R.

J-S49038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
S.P.R.
Appellant No. 69 WDA 2017
Appeal from the PCRA Order December 14, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000187-2002,
CP-65-CR-0003136-2001, CP-65-CR-0004843-2000,
CP-65-CR-0004844-2000
BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 21, 2017
Appellant, S.P.R., appeals pro se from the order entered in the
Westmoreland County Court of Common Pleas dismissing his third Post
Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant claims that
his petition was timely filed in light of the Pennsylvania Supreme Court’s
decision in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). We affirm.
A previous panel of this Court summarized the facts and procedural
posture of this case in the memorandum decision affirming the denial of
Appellant’s second PCRA petition.
The facts and procedural history . . . were aptly
summarized by this Court in the memorandum decision
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. § § 9541-9546.
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affirming the denial of [A]ppellant’s first PCRA petition,
which we recite herein:
On August 29, 2002, [Appellant] entered a general
plea to multiple counts of involuntary deviate sexual
intercourse (IDSI) with persons less than thirteen
and with persons less than sixteen years of age,
sexual abuse of children, unlawful contact or
communication with a minor, endangering the
welfare of children, and corruption of minors and one
count of criminal attempt, criminal solicitation,
incest, aggravated indecent assault with persons less
than thirteen and less than sixteen years of age,
recklessly endangering another person (REAP),
trademark counterfeiting, and criminal attempt. On
January 28, 2003, the trial court sentenced him to
not less than twenty-five nor more than one hundred
and twenty-two years’ incarceration. The trial court
also found him to be a sexually violent predator
pursuant to Megan’s law.
After sentencing, [Appellant] was granted new
counsel, who, in turn, filed post-sentence motions to
withdraw the guilty plea. On June 27, 2003, the trial
court granted the motion to withdraw on the grounds
that [Appellant] was not properly advised that he
could receive consecutive sentences. [Appellant’s]
counsel filed pretrial motions, which were
subsequently denied by the trial court.
On February 9, 2004, [Appellant] pleaded guilty to
four counts of IDSI, one count of criminal attempt to
commit IDSI, fifteen counts of sexual abuse of
children, five counts of unlawful contact or
communication with minors, three counts of
endangering the welfare of children, one count of
incest, four counts of REAP, two counts of
aggravated indecent assault, and one count of
trademark counterfeiting. [He was sentenced on
May 27, 2004, to an aggregate term of imprisonment
of [ ] 24 years to 65 years.] The trial court also
determined [Appellant] to be a sexually violent
predator pursuant to Megan’s Law. He filed post-
sentence motions, which were subsequently denied.
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He appealed to this Court, and we affirmed the
judgment of sentence on August 5, 2005.
Commonwealth v. S.P.R., [885 A.2d 581 (Pa.
Super. 2005)].
On October 5, 2005, [Appellant] filed a petition with
the PCRA court to appeal this Court’s affirmation
nunc pro tunc. The PCRA court denied the petition.
He appealed, and we reversed and remanded for an
evidentiary hearing to determine why an application
for allowance of appeal to the Supreme Court was
not filed. Commonwealth v. [S.P.R., 907 A.2d
1138 (Pa. Super. 2006)]. [Appellant] was appointed
new counsel for the evidentiary hearing held on
November 7, 2006[;] afterward, the PCRA court
granted the petition and permitted him to appeal to
our Supreme Court. On April 25, 2007, our Supreme
Court denied his petition. [Commonwealth v.
S.P.R., 921 A.2d 496 (Pa. 2007)].
On or about April 28, 2008, [Appellant] filed a pro se
PCRA petition alleging numerous claims of ineffective
assistance of counsel. The PCRA court appointed
counsel. Following review, counsel filed a “no merit”
letter. On October 30, 2008, the PCRA court issued
notice of intention to dismiss the PCRA petition as
per Pa.R.Crim.P. 907. On November 20, 2008, the
PCRA court denied the petition and permitted
counsel to withdraw from representation.
[Appellant] filed a motion for extension of time to file
an amended PCRA petition that was received on that
same date. The PCRA court denied his request. He
filed a timely notice of appeal.
Commonwealth v. S.P.R., 988 A.2d 728 (Pa. Super.
2009) (unpublished memorandum, October 22, 2009, at
pp. 1-3). On appeal, [A]ppellant challenged the
voluntariness of his guilty plea, and the ineffective
assistance of both plea counsel and PCRA counsel. This
Court, however, affirmed the order denying PCRA relief.
See: id. Appellant, thereafter, filed a petition for
allowance of appeal, which the Pennsylvania Supreme
Court denied on April 1, 2011. Commonwealth v.
S.P.R., [ ] 20 A.3d 486 ([Pa.] 2011). The Court also
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denied [A]ppellant’s subsequent petition for
reconsideration by order dated May 2, 2011. On June 29,
2011, [A]ppellant filed his second PCRA petition, pro se.
On July 26, 2011, the trial court issued [A]ppellant notice,
pursuant to Pa.R.Crim.P. 907, of its intention to dismiss
the petition as untimely filed. Although [A]ppellant filed a
response to the court’s notice, the trial court, by order
dated August 15, 2011, dismissed the PCRA petition as
untimely filed. This timely appeal followed.
* * *
Appellant’s judgment of sentence became final on
July 24, 2007, ninety days after the Pennsylvania
Supreme Court denied his petition for allowance of
appeal and the time for filing a petition for certiorari
in the United States Supreme court had expired.
See: 42 Pa.C.S. § 9545(b)(3); United States Supreme
Court Rule 13. Thus, [A]ppellant had until July 24, 2008,
to file a timely PCRA petition, and the instant petition, filed
nearly three years later, was manifestly untimely absent
[A]ppellant’s ability to prove that one of the exceptions to
the timing requirements apply.
* * *
Here, as part of a multi-count, negotiated plea,
[A]ppellant, on February 9, 2004, entered a guilty plea to
one count of trademark counterfeiting, 18 Pa.C.S. § 4119.
On October 5, 2009, however, the Pennsylvania Supreme
Court in Commonwealth v. Omar, [ ] 981 A.2d 179, 189
([Pa.] 2009), declared the statute “unconstitutionally
overbroad.”
* * *
Appellant filed an appeal from the trial court’s denial of
his first PCRA petition on December 29, 2008. We
affirmed the trial court’s decision on October 22, 2009, and
following our denial of reargument, [A]ppellant filed a
petition for allowance of appeal with the Pennsylvania
Supreme Court on April 2, 2010. Thereafter, the Supreme
Court (1) denied [A]ppellant’s petition for allowance of
appeal on April 1, 2011, and (2) denied [A]ppellant’s
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subsequent petition for reconsideration on May 2, 2011.
Appellant filed the present PCRA petition less than 60 days
later, on June 29, 2011.
* * *
[I]n the present case, the sixty-day period for filing a
second PCRA petition pursuant to one of the time-for-filing
exceptions began to run on the date the Pennsylvania
Supreme Court denied [A]ppellant’s petition for
reconsideration, that is, on May 2, 2011, and his present
petition was timely filed pursuant to § 9545(b)(2). . . .
Here, it is undisputed that the Pennsylvania Supreme
Court in Omar, supra, held that the trademark
counterfeiting statute, 18 Pa.C.S. § 4119, was
unconstitutionally overbroad . . . . Thus, we are compelled
to reverse [A]ppellant’s conviction of trademark
counterfeiting.
* * *
Appellant received “no further sentence” for his guilty plea
to the count of trademark counterfeiting. . . . Thus, the
abrogation of the conviction for trademark counterfeiting
does not disturb the sentencing scheme envisioned by the
trial court, and, by extension, does not upset the
parameters of the negotiated agreement entered into by
[A]ppellant and the Commonwealth.
* * *
In conclusion, . . . we must reverse the judgement of . . .
sentence for [the crime of trademark counterfeiting]. In
all other respects, we affirm the order of the trial court
denying [A]ppellant PCRA relief.
Commonwealth v. S.P.R., No. 1414 WDA 2011 at 2-4, 6-10, 14 (Pa.
Super. filed May 1, 2012) (unpublished memorandum) (emphasis added).
Appellant filed a petition for allowance of appeal which was denied on
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January 28, 2013. Commonwealth v. S.P.R., 377 WAL 212 (Pa. filed Jan.
28, 2013).
Appellant filed the instant PCRA petition on August 15, 2016. Id. On
October 28, 2016, the PCRA court filed a notice of intent to dismiss the
petition pursuant to Pa.R.Crim.P. 907. Id. at 39. Appellant filed a response
to the notice on November 9, 2016. On December 14, 2016, the PCRA court
dismissed the PCRA petition. This timely pro se appeal followed.
Appellant raises the following issues for our review:
I. Whether the record and law supports the lower court’s
ruling that Appellant’s PCRA petition was untimely, lacked
merit and could not meet the statutory exceptions
governing an untimely PCRA petition?
II. Whether the lower court erred by ruling an attempt to
raise an exception to an untimely PCRA petition must be
filed within 60 days of a Superior Court decision?
Appellant’s Brief at 4.
As a prefatory matter, we consider whether the PCRA court had
jurisdiction to entertain the underlying PCRA petition. Appellant contends
the court had jurisdiction to entertain his PCRA petition based upon his filing
of the petition within sixty days of the Pennsylvania Supreme Court’s
decision in Wolfe. Appellant’s Brief at 8, 12.
On appellate review of a PCRA ruling, “we determine whether the
PCRA court’s ruling is supported by the record and free of legal error.”
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).
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We . . . turn to the time limits imposed by the PCRA, as
they implicate our jurisdiction to address any and all of
[a]ppellant’s claims. To be timely, a PCRA petition must
be filed within one year of the date that the petitioner’s
judgment of sentence became final, unless the petition
alleges and the petitioner proves one or more of the
following 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 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).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). . . .
Id. at 719-20 (some citations omitted and emphasis added).
Our Supreme Court
has repeatedly stated that the PCRA timeliness
requirements are jurisdictional in nature and, accordingly,
a PCRA court cannot hear untimely PCRA petitions. In
addition, we have noted that the PCRA confers no
authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those
exceptions expressly delineated in the Act. We have also
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recognized that the PCRA’s time restriction is
constitutionally valid.
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
and quotation marks omitted).
In Wolfe, the “[a]ppeal was allowed to assess the validity of the
Superior Court’s sua sponte determination that a sentencing statute is
facially unconstitutional under Alleyne v. United States, [ ] 133 S. Ct.
2151, [ ] (2013).” Wolfe, 140 A.3d at 653. This Court held that the ten
year mandatory minimum sentence for IDSI was facially unconstitutional.
Id. at 655. The Pennsylvania Supreme Court affirmed the order of the
Superior Court. Id. at 663.
“This Court has recognized that a new rule of constitutional law is
applied retroactively to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically holds it to be retroactively
applicable to those cases.”2 Commonwealth v. Miller, 102 A.3d 988, 995
(Pa. Super. 2014) (citation omitted). In Commonwealth v. Washington,
142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court addressed the
issue of “whether the Supreme Court of the United States’ decision in
Alleyne . . . applies retroactively to attacks upon mandatory minimum
sentences advanced on collateral review.” Id. at 811. The Washington
Court held that “Alleyne does not apply retroactively to cases pending on
2
We note that Appellant’s judgment of sentence became final on July 24,
2007. Alleyne was decided on June 17, 2013.
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collateral review, and that [the a]ppellant’s judgment of sentence, therefore,
is not illegal on account of Alleyne.” Id. at 820.
It is undisputed that Appellant’s third PCRA petition is untimely on its
face. Following our review of the relevant law, we agree with the PCRA
court that Appellant failed to establish a timeliness exception based on the
rights recognized in Alleyne and the Pennsylvania cases applying Alleyne.
See PCRA Ct. Order, 12/14/16.3 As discussed above, neither the United
States Supreme Court nor the Pennsylvania Supreme Court has held that
Alleyne is to be applied retroactively to cases pending on collateral review.
See Washington, 142 A.3d at 820. Appellant’s citation to Wolfe does not
establish a timeliness exception; therefore, the PCRA court lacked
jurisdiction. See Robinson, 837 A.2d at 1161. We find the PCRA court’s
ruling is supported by the record and free of legal error. See Marshall, 947
A.2d at 719. Accordingly, we affirm the order of the PCRA court.
Order affirmed.
3
The PCRA court incorporated its October 28, 2016 Notice of Intention to
Dismiss Motion for Post-Collateral Relief as its opinion. See id. at 3-4.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2017
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