Com. v. Luciano, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHRISTOPHER LUCIANO, No. 1709 EDA 2018
Appellant
Appeal from the PCRA Order, June 5, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0014229-2010
BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 07, 2019
Christopher Luciano appeals from the June 5, 2018 order denying his
petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.
§§ 9541-9546, as untimely. After careful review, we affirm.
The relevant facts and procedural history of this case were summarized
at length in the PCRA court opinion and need not be reiterated here. (See
PCRA court opinion, 8/8/18 at 1-4.) In sum, appellant, a former Philadelphia
police officer, pled guilty on April 5, 2011 to robbery, kidnapping for ransom,
criminal conspiracy, official oppression, and possession with intent to deliver
a controlled substance ("PWID"),1 after he conspired with a drug dealer to rob
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2901(a)(1), 903, 5301(1), and 35 P.S.
780-113(a)(30), respectively.
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several drug couriers. On June 15, 2011, the trial court sentenced appellant
to an aggregate term of ten years' imprisonment, followed by a consecutive
term of seven years' probation. Appellant did not file a direct appeal. On
August 13, 2015, appellant filed a pro se PCRA petition and Darryl A. Irwin,
Esq. ("PCRA counsel"), was appointed to represent him. PCRA counsel filed
an amended PCRA petition on appellant's behalf on July 19, 2017, and a
second amended petition on January 24, 2018. On February 28, 2018, the
PCRA court provided appellant with notice of its intention to dismiss his
petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant did not
file a response to the PCRA court's Rule 907 notice. Thereafter, on June 5,
2018, the PCRA court dismissed appellant's petition. This timely appeal
followed on June 8, 2018.2
Appellant raises the following issues for our review:
[I.] Was the sentence excessive, more than what
was needed to protect the public and
rehabilitate [a]ppellant, was greater than the
sentence of a more culpable co-defendant, the
sentence was illegal, and that [a]ppellant did
not receive proper notice that the
Commonwealth was pursuing the gun/PWID
mandatory minimum, and therefor [a]ppellant
did not enter his guilty plea voluntarily,
knowingly nor intelligently?
2 On June 13, 2018, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days. Appellant filed a timely Rule 1925(b)
statement on July 2, 2018, and the PCRA court filed its Rule 1925(a) opinion
on August 8, 2018.
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[II.] Did the [PCRA] Court err in dismissing as
untimely [a]ppellant's [PCRA] Petition, as
[a]ppellant contends that his [PCRA] Petition
satisfied the time bar exception as provided
under 42 Pa.C.S.[A.] 9545(b)(iii)?
Appellant's brief at 5 (footnote omitted).
Proper appellate review of a PCRA court's dismissal of a PCRA petition
is limited to the examination of "whether the PCRA court's determination is
supported by the record and free of legal error." Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's
findings will not be disturbed unless there is no support for the findings in the
certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). "This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding." Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
When the PCRA court denies a petition without an evidentiary hearing,
as is the case here, we "examine each issue raised in the PCRA petition in light
of the record certified before it in order to determine if the PCRA court erred
in its determination that there were no genuine issues of material fact in
controversy and in denying relief without conducting an evidentiary hearing."
Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa.Super. 2004). There
is no absolute right to an evidentiary hearing. Commonwealth v. Hart, 911
A.2d 939, 941 (Pa.Super. 2006) (citation omitted). "It is within the PCRA
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court's discretion to decline to hold a hearing if the petitioner's claim is
patently frivolous and has no support either in the record or other evidence."
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations
omitted).
Preliminarily, we must consider the timeliness of appellant's PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when a defendant's judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). "[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 time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3). If a
PCRA petition is untimely, a court lacks jurisdiction over the petition.
Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).
Here, the record reveals that appellant's judgment of sentence became
final on July 15, 2011, 30 days after the trial court sentenced him and the
deadline for filing a direct appeal with this court expired. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903(a) (stating, "the notice of appeal required by
Rule 902 (manner of taking appeal) shall be filed within 30 days after the
entry of the order from which the appeal is taken."). Accordingly, appellant
had until July 15, 2012 to file a timely PCRA petition. See 42 Pa.C.S.A.
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§ 9545(b)(1). Appellant's instant petition was filed on August 13, 2015, more
than three years past the deadline, and is patently untimely, unless appellant
can plead and prove that one of the three statutory exceptions to the one-year
jurisdictional time -bar applies.
The three statutory exceptions to the PCRA time -bar are as follows:
(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).
Instantly, appellant invokes the "newly recognized constitutional right"
exception set forth in Section 9545(b)(1)(iii) and argues, inter alia, that his
mandatory minimum sentence is illegal in light of Alleyne v. United States,
570 U.S. 99 (2013), and Commonwealth v. Hopkins, 117 A.3d 247 (Pa.
2015). (See second amended PCRA petition, 1/24/18 at ¶ 4a and
accompanying "Memorandum of Law," § II; appellant's brief at 19-22.)
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In Alleyne, the Supreme Court of the United States held that the Sixth
Amendment requires that, "[a]ny fact that, by law, increases the penalty for
a crime is an 'element' that must be submitted to the jury and found beyond
a reasonable doubt." Alleyne, 570 U.S. at 102-103 (citation omitted).
Thereafter, in Hopkins, a panel of this court held that 18 Pa.C.S.A. § 6317(a),
requiring the imposition of a mandatory minimum sentence if certain drug
crimes occur within 1,000 feet of a school, is unconstitutional under Alleyne.
Hopkins, 117 A.3d at 262.
Upon review, we find that appellant's claim is meritless. This court has
long recognized that "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, 223 (Pa. 1999). Therefore,
appellant's illegal sentencing claim does not operate as an independent
exception to the PCRA's jurisdictional time -bar. Appellant's reliance on
Alleyne and Hopkins is of no avail because the constitutional rights
examined in those cases have not been held to apply retroactively to collateral
attacks on mandatory minimum sentences advanced in post -conviction relief
proceedings. On the contrary, the courts in this Commonwealth have
expressly rejected the notion that Alleyne applies retroactively to cases on
collateral review. See Commonwealth v. Washington, 142 A.3d 810,
814-815 (Pa. 2016) (holding that the Alleyne decision does not apply
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retroactively to collateral attacks upon mandatory minimum sentences
advanced in PCRA proceedings); Commonwealth v. Riggle, 119 A.3d 1058,
1064 (Pa.Super. 2015) (stating that, "while this Court has held that Alleyne
applies retroactively on direct appeal, we have declined to construe that
decision as applying retroactively to cases during PCRA review"). Likewise,
the derivative cases applying Alleyne have also been held not to be
retroactive. See Commonwealth v. Whitehawk, 146 A.3d 266, 271
(Pa.Super. 2016) (holding that Hopkins did not announce a rule to be applied
retroactively to PCRA petitioners). Accordingly, appellant has failed to satisfy
the newly recognized constitutional right exception to the PCRA time -bar. See
42 Pa.C.S.A. §9545(b)(1)(iii).
Furthermore, none of appellant's remaining claims on appeal - (i) that
his sentence was in excess of that necessary to protect the public and
rehabilitate him; (ii) that his sentence was illegal because it was greater than
that of his co-defendant; and (iii) that his guilty plea was not knowingly,
voluntarily, or intelligently entered into because the Commonwealth failed to
inform him of its intention to seek a mandatory minimum sentence - properly
invoke any of the three statutory exceptions to the PCRA time -bar. (See
appellant's brief at 14-19.) Accordingly, we cannot consider the merits of
appellant's claims.
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Based on the foregoing, we discern no error on the part of the PCRA
court in dismissing appellant's untimely petition without conducting an
evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 8/7/19
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