Com. v. Bellon, C.

• Court: Superior Court of Pennsylvania
• Decided: October 23, 2023
• Docket: 1307 WDA 2022
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES A. BELLON : : Appellant : No. 1307 WDA 2022

Appeal from the PCRA Order Entered October 24, 2022 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001272-2002

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED: October 23, 2023

Charles A. Bellon appeals from the order that denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

Appellant is currently serving a judgment of sentence of thirty-one to

forty-six years of imprisonment on, inter alia, eleven counts of possession with

intent to deliver a controlled substance (“PWID”). We glean the following

summary of the protracted history of this case from this Court’s decision in

Appellant’s most recent appeal. See Commonwealth v. Bellon, 249 A.3d

1177, 2021 WL 688787 at *1-3 (Pa.Super. 2021) (non-precedential decision)

(“Bellon V”).

In 2003, Appellant was sentenced following a guilty plea, but this Court

ruled that his motion to withdraw the plea should have been granted.

Following a trial, Appellant was sentenced in 2009 to an aggregate term of J-A22013-23

thirty-one to sixty-two years of confinement, which included ten PWID

sentences of seven to fourteen years imposed through application of the

mandatory minimum statute codified at 18 Pa.C.S. § 7508(a)(3)(iii). His

direct appeal merited him no relief. See Commonwealth v. Bellon, 29 A.3d

836 (Pa.Super. 2011) (unpublished memorandum) (“Bellon I”).

Appellant filed PCRA petitions in 2011 and 2015 alleging, inter alia, that

his sentence was illegal pursuant to Alleyne v. United States, 570 U.S. 99

(2013) (holding that any fact that increases the penalty for a crime is an

element of the offense that must be determined by the fact-finder beyond a

reasonable doubt). This Court rejected his Alleyne claim on the merits in the

former, holding that the Alleyne ruling did not apply retroactively to his final

judgment of sentence. See Commonwealth v. Bellon, 106 A.3d 154

(Pa.Super. 2014) (unpublished memorandum), appeal denied, 109 A.3d 677

(Pa. 2015) (“Bellon II”). We affirmed the dismissal of Appellant’s 2015 PCRA

petition as untimely. See Commonwealth v. Bellon, 227 A.3d 426

(Pa.Super. 2020) (non-precedential decision) (“Bellon III”).

Meanwhile Appellant simultaneously litigated a petition for writ of

habeas corpus in federal court. Therein, he asserted six claims, including a

challenge to the legality of his sentence, not based upon Alleyne, but upon

the fact that the statutory maximum for the PWID offenses was ten years.

See Bellon v. Ferguson, 3:15-CV-131-KRG-KAP, 2019 WL 13259278 (W.D.

Pa. Aug. 15, 2019), supplemented, 2019 WL 13259246 (W.D. Pa. Aug. 28,

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2019), report and recommendation adopted, 2019 WL 13259245 (W.D. Pa.

Sept. 30, 2019) (“Bellon IV”). Ultimately, the federal court conditionally

granted the petition as to the sentencing claim only, indicating that a writ

would “issue if within 120 days the Court of Common Pleas of Blair County

does not impose a new judgment of sentence in which the maximum sentence

as to Counts II, III, IV, V, VI, VII, VIII, X, XI, and XII, is 10 years.” Id., 2019

WL 13259245 at *1.

Within the allotted time, the Commonwealth filed an application in the

trial court to conform Appellant’s sentence to the federal court order by

reducing the maximum term of each of the ten PWID sentences to ten years.

Appellant opposed the application, asserting that reducing each sentence to

seven to ten years would result in an illegal sentence pursuant to 42 Pa.C.S.

§ 9756(b)(1) (providing that a sentence is generally illegal if the minimum

term of confinement exceeds half of the maximum term imposed). Appellant

acknowledged that our Supreme Court has held that this general rule does not

pertain when the minimum sentence was imposed pursuant to a mandatory

minimum statute such as 18 Pa.C.S. § 7508, which states that it applies

“notwithstanding any other provision” to the contrary. See Commonwealth

v. Bell, 645 A.2d 211, 217 (Pa. 1994) (“‘Notwithstanding any other provision

of this or any other act to the contrary’ carves an exception to the minimum-

maximum rule[.]”). However, since § 7508 had been declared to be

unconstitutional in its entirety pursuant to Alleyne, Appellant asserted that

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§ 7508 could not serve as a basis to exclude Appellant’s sentences from the

general requirement that the minimum cannot exceed half of the maximum.

By order of January 14, 2020, the trial court entered an order reducing

the maximum terms of the sentences at issue to ten years despite its express

disinclination to do so. See Order, 1/14/2020, at 3. Appellant filed a timely

appeal to this Court, asserting that the trial court imposed an illegal sentence

by applying mandatory minimums that no longer exist and by not holding a

new sentencing hearing before imposing the new sentence.

At that point, it was not only the law of Appellant’s case, but the law of

the Commonwealth, that “Alleyne does not apply retroactively to cases

pending on collateral review[.]” Commonwealth v. Washington, 142 A.3d

810, 820 (Pa. 2016). Accordingly, this Court considered “whether, by granting

habeas corpus relief, the District Court vacated [Appellant]’s sentence” such

that the January 12, 2020 order reducing Appellant’s maximum sentences for

the ten PWID convictions was a new sentence that illegally applied mandatory

minimum statutes that had been invalidated by Alleyne. See Bellon V,

supra at *3. We concluded that there was no new sentence, explaining as

follows:

“Federal habeas directives to state authorities are designed to be coercive and, thus the federal courts issue a ‘conditional’ grant of the writ, which delays implementing the writ to allow the state the opportunity to correct the perceived constitutional violation.” Commonwealth v. Lesko, 15 A.3d 345, 364 (Pa. 2011). Additionally, federal habeas relief “should be narrowly designed to enable the state court to fulfill its constitutional obligation.” Our Supreme Court has explained that when a defendant is awarded

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federal habeas relief, “all other aspects of the original judgment remain as before—final.” Id. at 366 (emphasis in original).

Here, the Federal District Court’s Order specifically provided as follows:

It is ORDERED that [Appellant’s] petition for a writ of habeas corpus is granted in part and denied in part as recommended in the Report and Recommendation and is adopted as the opinion of the court. A writ of habeas corpus shall issue if within 120 days the Court of Common Pleas of Blair County does not impose a new judgment of sentence in which the maximum sentence as to the 10 PWID convictions is 10 years.

The District Court did not vacate [Appellant’s] sentence, but rather, ordered the correction of only the maximum sentences. Consequently, [Appellant] cannot retroactively receive the benefit of Alleyne, because he was not sentenced “post-Alleyne.” Rather, his sentence was tailored to comport with the statutes in effect in 2007. Accordingly, we cannot grant [Appellant] relief on this claim.

Id. at *3-4 (cleaned up, some citations omitted, emphasis in original). We

further held that, since Appellant’s original sentence was not vacated in its

entirety and no new sentence was imposed, he was not entitled to relief on

his claim that he was illegally denied his right to allocution and a full

sentencing hearing. Id. at *4.

Thereafter, Appellant filed in state court a petition for writ of habeas

corpus, a PCRA petition, a motion for the appointment of counsel, and a

motion to remove the Deputy Attorney General who had been handling

Appellant’s case for years. The court treated both the habeas petition and the

PCRA filing as PCRA petitions and issued notice of its intent to dismiss them,

as well as the counsel-related motions, without a hearing. Therein, the PCRA

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court opined that the two PCRA petitions were untimely because they

challenged portions of Appellant’s sentences, i.e., the minimum mandatory

term of seven years, which were not disturbed by the federal court and

remained final, as they had been since 2011, pursuant to Lesko, supra. See

Rule 907 Notice, 9/26/22, at unnumbered 6-9. The court further explained

that Appellant was not entitled to counsel for his serial petitions and had failed

to establish cause to disqualify the Commonwealth’s attorney. Id. at

unnumbered 8-9.

Appellant filed a response to the notice maintaining, inter alia, that his

PCRA petition was timely filed because the January 12, 2020 order that altered

his judgment of sentence in compliance with the federal mandate was a new

judgment of sentence that did not become final until after Bellon V was

decided in 2021. Therefore, Appellant claimed he was entitled to, among

other things, appointed counsel and a new sentencing hearing at which

Alleyne would bar the imposition of the seven-year mandatory minimum

sentences that were imposed absent the requisite fact-finding by the jury.

See Objection to 907 Notice, 10/7/22, at 3-4.

Appellant filed several appeals from various PCRA court orders, including

the October 24, 2022 order that ultimately concluded the litigation of the

pending proceedings. This Court dismissed the premature appeals as

duplicative of the instant one and ordered this appeal to proceed. Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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Appellant presents the following questions for our consideration:

I. Whether Appellant is entitled to a complete and new direct appeal because this Court did not have jurisdiction to adjudicate Appellant’s prior direct appeal since the sentencing order was a legal nullity?

II. Whether the PCRA court erred when it determined that Appellant’s petition was untimely?

III. Whether Appellant’s original sentence stands because the sentencing court failed to vacate the initial sentence before it resentenced Appellant?

IV. Whether the PCRA court erred when it failed to allow Appellant to amend his petition?

V. Whether under state constitutional law and the Supremacy Clause, the Courts were constrained to hold a new sentencing proceeding and apply Alleyne since the intervening habeas proceeding disturbed a on[c]e final judgment rendering it non- final and returned that very judgment to direct review?

VI. Whether the sentence imposed violates Appellant’s procedural due process rights and is illegal where, a) the sentence fails to state which sentences are running concurrent or consecutively, b) it was imposed without a PSI, c) it was imposed without notice and without Appellant present in open court, d) the court failed to make a RRRI determination, e) the sentence violates the merger doctrine of the double jeopardy clause, and f) the excessive sentence amounts to cruel and unusual punishment and circumvents equal protections?

VII. Whether Appellant’s guilt/ineffective claims are properly before the Court because (1) a new judgment of sentence was imposed and this judgment under Article V Section 9 of the Pennsylvania Constitution and 42 Pa.C.S. § 9545(b)(3) authorized direct review, and (2) since a sentence cannot exist without a conviction, it cannot be separated and must be viewed as one judgment: from the day of the entry?

VIII. Whether the court erred when it failed to recuse itself?

Appellant’s brief at 3.

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We begin by observing that Appellant does not develop in his brief an

argument that the PCRA court erred in not recusing itself, nor does he indicate

that he filed a recusal motion in the PCRA court. Accordingly, Appellant’s claim

that the PCRA court erred in failing to recuse is waived.1 See Lomas v.

Kravitz, 170 A.3d 380, 390 (Pa. 2017) (indicating claim that a judge is

disqualified is waived if recusal motion is not promptly presented to the

challenged jurist at the first opportunity); Commonwealth v. Taylor, 277

A.3d 577, 590 (Pa.Super. 2022) (“[T]he failure to develop an adequate

argument in an appellate brief may result in waiver of the claim under

Pa.R.A.P. 2119.”).

We further observe as an initial matter that none of Appellant’s appellate

questions suggest that the PCRA court erred in treating his October 20, 2021

state habeas corpus petition as a PCRA petition. Accordingly, we proceed with

the legal principles applicable to our review of orders disposing of PCRA

petitions. “In general, we review an order dismissing or denying a PCRA

petition as to whether the findings of the PCRA court are supported by the

record and are free from legal error.” Commonwealth v. Howard, 285 A.3d

652, 657 (Pa.Super. 2022) (cleaned up). “It is an appellant’s burden to

persuade us that the PCRA court erred and that relief is due.”

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1 Additionally, we note that Appellant does not pursue on appeal the denial of

his requests for appointed counsel and to disqualify the Commonwealth’s attorney.

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Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)

(cleaned up).

It is well-settled that, “[b]ecause the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition, we must start by examining the timeliness of Appellant’s

petition.” Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014).

Indeed, “no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super. 2019).

Any PCRA petition must either be filed within one year of the judgment

of sentence becoming final or meet a timeliness exception. See 42 Pa.C.S.

§ 9545(b)(1). A petitioner bears the burden of pleading and proving a

timeliness exception.2 “If the petition is untimely and the petitioner has not

2 The PCRA provides as follows regarding the time for filing a petition:

Any petition [filed pursuant to the PCRA], including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(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

(Footnote Continued Next Page)

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pled and proven an exception, the petition must be dismissed[.]”

Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super. 2018).

Here, Appellant does not assert that a timeliness exception applies.

Instead, he maintains that his petition was timely filed within one year of his

post-habeas-relief sentence becoming final after this Court decided Bellon V

in 2021. See Appellant’s brief at 18. Thus, the jurisdiction of the PCRA court

and this Court to consider the substance of Appellant’s claims hinges on when

Appellant’s judgment of sentence became final: in 2011 or in 2021.

This Court already made that determination in Bellon V, ruling that

Appellant was not entitled to a new sentencing hearing in order for the trial

court to implement the federal habeas order because no new sentence was

imposed at that time. Rather, the 2009 sentence, which included his ten

mandatory minimum sentences of seven years, became final in 2011 and

remained final when the sentence was conformed to the federal court’s

mandate in 2020. See Bellon V, supra at 2021 WL 688787 *4. Such is the

law of the case. See, e.g., Commonwealth v. Barnes, 167 A.3d 110, 121

(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). Further, a petition invoking a timeliness exception “shall be filed within one year of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). Claims arising before December 24, 2017, were required to have been raised within sixty days.

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(Pa.Super. 2017) (“[W]hen an appellate court has considered and decided a

question submitted to it upon appeal, it will not, upon a subsequent appeal on

another phase of the case, reverse its previous ruling even [if] convinced it

was erroneous.”).3 Furthermore, since Appellant did not seek to amend his

petition to assert a timeliness exception, we have no basis to conclude that

the PCRA committed reversible error in denying his request to amend.

For the foregoing reasons, the PCRA court properly dismissed

Appellant’s PCRA petitions as untimely.

Order affirmed.

DATE: 10/23/2023

3 It is further the law of the case that Appellant is not entitled to retractive

application of the 2013 decision in Alleyne v. United States, 570 U.S. 99 (2013), to his then-final judgment of sentence. See Commonwealth v. Bellon, 249 A.3d 1177, 2021 WL 688787 at *4 (Pa.Super. 2021) (non- precedential decision) (holding Appellant “cannot retroactively receive the benefit of Alleyne, because he was not sentenced ‘post-Alleyne’”).

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