Com. v. Bartlebaugh, L.

• Court: Superior Court of Pennsylvania
• Decided: November 23, 2016
• Docket: 783 WDA 2016
• Status: Unpublished

Opinion

J-S86036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LOUIS W. BARTLEBAUGH

Appellant No. 783 WDA 2016

Appeal from the PCRA Order April 26, 2016 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0002669-2002

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED NOVEMBER 23, 2016

Appellant, Louis W. Bartlebaugh, appeals pro se from the order

entered in the Cambria County Court of Common Pleas, which denied his

third petition filed under the Post Conviction Relief Act (“PCRA”) at 42

Pa.C.S.A. §§ 9541-9546. On May 20, 2003, a jury convicted Appellant of

aggravated assault, rape, and related offenses. On September 11, 2003,

the court sentenced Appellant to an aggregate term of 15-30 years’

imprisonment. This Court affirmed the judgment of sentence on June 30,

2005, and our Supreme Court denied allowance of appeal on November 30,

2005. See Commonwealth v. Bartlebaugh, 881 A.2d 878 (Pa.Super.

2005) (unpublished memorandum), appeal denied, 586 Pa. 707, 889 A.2d

1212 (2005). Appellant filed his first PCRA petition on July 6, 2006, which

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*Former Justice specially assigned to the Superior Court. J-S86036-16

the PCRA court denied on September 13, 2006. This Court affirmed on

January 3, 2008. See Commonwealth v. Bartlebaugh, 947 A.2d 821

(Pa.Super. 2008). On February 2, 2012, Appellant filed his second PCRA

petition, which the PCRA court dismissed as untimely on February 9, 2012.

This Court affirmed on December 13, 2012. See Commonwealth v.

Bartlebaugh, 64 A.3d 20 (Pa.Super. 2012). On March 23, 2016, Appellant

filed the current pro se PCRA petition. The PCRA court issued a Rule 907

notice and later dismissed the petition on April 26, 2016. Appellant timely

filed a pro se notice of appeal. The PCRA court ordered Appellant to file a

Rule 1925(b) statement; Appellant timely complied.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,

625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one

year of the date the underlying judgment becomes final. 42 Pa.C.S.A §

9545(b)(1). A judgment is deemed final at the conclusion of direct review or

at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(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). A petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

have been presented. 42 Pa.C.S.A. § 9545(b)(2). When asserting the

newly created constitutional right exception under Section 9545(b)(1)(iii), “a

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petitioner must prove that there is a ‘new’ constitutional right and that the

right ‘has been held’ by that court to apply retroactively.” Commonwealth

v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa.

625, 46 A.3d 715 (2012).

Instantly, Appellant’s judgment of sentence became final on February

28, 2006, upon expiration of the time to file a petition for writ of certiorari in

the United States Supreme Court. See U.S.Sup.Ct.R. 13. On March 23,

2016, Appellant filed the current petition, which is patently untimely. See

42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new

constitutional right” exception to the PCRA time bar by citing the U.S.

Supreme Court’s decision in Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151,

186 L.Ed.2d 314 (2013), and its Pennsylvania progeny. Appellant insists

Alleyne and its progeny declared unconstitutional the mandatory minimum

sentencing statute under which Appellant claims he was sentenced. Neither

the U.S. Supreme Court nor the Pennsylvania Supreme Court, however, has

held that Alleyne or its progeny apply retroactively on collateral review.

See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (holding

that even if Alleyne announced new constitutional right, neither our

Supreme Court nor United States Supreme Court has held that Alleyne

applies retroactively, which is fatal to appellant’s attempt to satisfy “new

constitutional right” exception to timeliness requirements of PCRA). See

also Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016)

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(holding Alleyne does not apply retroactively on collateral review to

challenge to mandatory minimum sentence as “illegal”). Therefore,

Appellant’s petition remains time barred, and the PCRA court lacked

jurisdiction to review it. See Turner, supra. Moreover, the record makes

clear Appellant received no mandatory minimum sentence. Accordingly, we

affirm.1

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/23/2016

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1 Due to our disposition, we deny Appellant’s open motion for a continuance to await the Pennsylvania Supreme Court’s disposition in Commonwealth v. Barnes, ___ Pa. ___, 122 A.3d 1034 (2015) (granting allowance of appeal).

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