J. S59037/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BOBBY L. CARLSON, : : Appellant : No. 585 WDA 2015
Appeal from the Order February 9, 2015 In the Court of Common Pleas of Elk County Criminal Division No(s).: CP-24-CR-0000008-2009
BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 15, 2015
Appellant, Bobby L. Carlson, appeals from the order of the Elk County
Court of Common Pleas dismissing his second Post Conviction Relief Act1
(“PCRA”) petition as untimely. Appellant contends his 2009 sentence for
rape of a child2 is illegal under Alleyne v. United States, 133 S. Ct. 2151
(2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(en banc).3 We affirm.
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 18 Pa.C.S. § 3121(c); see also 42 Pa.C.S. § 9718 (“Sentences for offenses against infant persons”). 3 In addition to Alleyne and Newman, the mandatory minimum sentence in Section 9718(a)(1) has been held unconstitutional in Commonwealth v. J.S59037/15
The following procedural history is relevant to this appeal. On July 29,
2009, Appellant pleaded guilty to one count of rape of a child. At the time of
Appellant’s plea, the Commonwealth advised him of the potential mandatory
minimum sentence of ten years under 42 Pa.C.S. § 9718(a)(3).4 N.T.,
7/29/09, at 3. At the sentencing hearing on December 28, 2009, the
Commonwealth requested the ten-year mandatory minimum sentence.
N.T., 12/28/09, at 3. The trial court sentenced Appellant to ten to twenty
years’ imprisonment. He did not take a direct appeal.
On June 23, 2010, the court received Appellant’s timely first pro se
PCRA petition5 and appointed counsel. On December 14, 2010, appointed
counsel filed a petition to withdraw and a no-merit letter. See
Wolfe, 106 A.3d 800 (Pa. Super. 2014). The Pennsylvania Supreme Court granted allowance of appeal in Wolfe to consider “[w]hether the Superior Court of Pennsylvania’s sua sponte determination that the ten year mandatory minimum sentence for involuntary deviate sexual intercourse (Person less than 16 years) imposed pursuant to 42 Pa.C.S.A. § 9718(a)(1) is facially unconstitutional is erroneous as a matter of law?” Commonwealth v. Wolfe, 63 MAL 2015 (Pa. Aug. 12, 2015). 4 Although the Commonwealth referred to the mandatory minimum sentence in 42 Pa.C.S. § 9718(a)(1), see N.T., 7/29/09, at 3, the provision applicable to a conviction under 18 Pa.C.S. § 3121(c) for rape of a child was set forth in 42 Pa.C.S. § 9718(a)(3). See 42 Pa.C.S. § 9718(a)(3) (“A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows . . . 18 Pa.C.S. § 3121(c) and (d)—not less than ten years.”). 5 Appellant, in his first PCRA petition, claimed plea counsel coerced him into pleading guilty and failed to investigate possible defenses. We note that the record does not contain the stamped envelopes related to Appellant’s first petition or any of Appellant’s later pro se filings.
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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Subsequently, the PCRA
court (1) granted appointed counsel leave to withdraw on December 17,
2010, (2) issued a Pa.R.Crim.P. 907 notice of intent to deny relief without a
hearing on January 4, 2011, and (3) denied Appellant’s first PCRA petition
on February 10, 2011. Appellant did not take an appeal.
Nearly forty-six months later, on December 1, 2014, the PCRA court
received Appellant’s pro se “Motion to Vacate Illegal Sentence,” which gives
rise to this appeal. Appellant sought relief based on the United States
Supreme Court’s decision in Alleyne.6 The court regarded the motion as a
second PCRA petition and on January 8, 2015, issued a Pa.R.Crim.P. 907
notice of its intent to dismiss the petition as untimely. Appellant filed a pro
se response citing, inter alia, this Court’s en banc decision in Newman.7
The court dismissed Appellant’s petition on February 9, 2015.
On March 25, 2015, the PCRA court filed and docketed Appellant’s pro
se notice of appeal. However, the notice of appeal bore a handwritten date
of March 8, 2015, as did Appellant’s certificate of service and verification.
6 We note Alleyne was decided on June 17, 2013, more than seventeen months before the PCRA court received the instant petition. 7 Newman was decided on August 20, 2014, more than three months before the PCRA court received the petition.
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The court, on March 27, 2015, authored a Pa.R.A.P. 1925(a) opinion 8
indicating that Appellant’s notice of appeal was facially untimely, but the
“prisoner [mailbox] rule may be implicated.” PCRA Ct. Op., 3/27/15. The
court did not resolve the uncertainty surrounding the timeliness of
Appellant’s appeal, but suggested the appeal be dismissed or its ruling be
affirmed based on its previous order dismissing the petition. Id.
Appellant, in his pro se brief, presents the following question for our
review: “Did the [PCRA] court err in dismissing [Appellant’s] PCRA [petition
by] not recognizing the § 9545 exception of ‘after recognized constitutional
rights’ and ‘a[n] illegal sentence can[not] be waived[?’]” Appellant’s Brief at
3. He notes the legal resources at the State Correctional Institution at
Mercer are limited and argues he exercised reasonable diligence when filing
his second PCRA petition based on Alleyne and Newman. Id. at 6. He
further suggests a challenge to an illegal sentence cannot be waived. Id. at
7. No relief is due.
Preliminarily, we address the PCRA court’s suggestion that Appellant’s
notice of appeal was not filed within thirty days. See Pa.R.A.P. 903(a).
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001)
(noting “questions of jurisdiction may be raised sua sponte”). It is well
settled the “prisoner mailbox rule provides that a pro se prisoner’s document
8 The PCRA court did not require Appellant to file a Pa.R.A.P. 1925(b) statement.
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is deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation
omitted).
In this case, the time to file an appeal from the PCRA court’s February
9, 2015 order ended on March 11, 2015. See Pa.R.A.P. 903(a). Appellant
signed and dated his notice of appeal and a certificate of service on Sunday,
March 8, 2015, three days before that deadline. We acknowledge there is
uncertainty surrounding Appellant’s certification that he deposited his notice
of appeal with prison officials on March 8th and that Appellant bore the
burden to proving the timeliness of his appeal. See Chambers, 35 A.3d at
40.
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J. S59037/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BOBBY L. CARLSON, : : Appellant : No. 585 WDA 2015
Appeal from the Order February 9, 2015 In the Court of Common Pleas of Elk County Criminal Division No(s).: CP-24-CR-0000008-2009
BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 15, 2015
Appellant, Bobby L. Carlson, appeals from the order of the Elk County
Court of Common Pleas dismissing his second Post Conviction Relief Act1
(“PCRA”) petition as untimely. Appellant contends his 2009 sentence for
rape of a child2 is illegal under Alleyne v. United States, 133 S. Ct. 2151
(2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(en banc).3 We affirm.
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 18 Pa.C.S. § 3121(c); see also 42 Pa.C.S. § 9718 (“Sentences for offenses against infant persons”). 3 In addition to Alleyne and Newman, the mandatory minimum sentence in Section 9718(a)(1) has been held unconstitutional in Commonwealth v. J.S59037/15
The following procedural history is relevant to this appeal. On July 29,
2009, Appellant pleaded guilty to one count of rape of a child. At the time of
Appellant’s plea, the Commonwealth advised him of the potential mandatory
minimum sentence of ten years under 42 Pa.C.S. § 9718(a)(3).4 N.T.,
7/29/09, at 3. At the sentencing hearing on December 28, 2009, the
Commonwealth requested the ten-year mandatory minimum sentence.
N.T., 12/28/09, at 3. The trial court sentenced Appellant to ten to twenty
years’ imprisonment. He did not take a direct appeal.
On June 23, 2010, the court received Appellant’s timely first pro se
PCRA petition5 and appointed counsel. On December 14, 2010, appointed
counsel filed a petition to withdraw and a no-merit letter. See
Wolfe, 106 A.3d 800 (Pa. Super. 2014). The Pennsylvania Supreme Court granted allowance of appeal in Wolfe to consider “[w]hether the Superior Court of Pennsylvania’s sua sponte determination that the ten year mandatory minimum sentence for involuntary deviate sexual intercourse (Person less than 16 years) imposed pursuant to 42 Pa.C.S.A. § 9718(a)(1) is facially unconstitutional is erroneous as a matter of law?” Commonwealth v. Wolfe, 63 MAL 2015 (Pa. Aug. 12, 2015). 4 Although the Commonwealth referred to the mandatory minimum sentence in 42 Pa.C.S. § 9718(a)(1), see N.T., 7/29/09, at 3, the provision applicable to a conviction under 18 Pa.C.S. § 3121(c) for rape of a child was set forth in 42 Pa.C.S. § 9718(a)(3). See 42 Pa.C.S. § 9718(a)(3) (“A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows . . . 18 Pa.C.S. § 3121(c) and (d)—not less than ten years.”). 5 Appellant, in his first PCRA petition, claimed plea counsel coerced him into pleading guilty and failed to investigate possible defenses. We note that the record does not contain the stamped envelopes related to Appellant’s first petition or any of Appellant’s later pro se filings.
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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Subsequently, the PCRA
court (1) granted appointed counsel leave to withdraw on December 17,
2010, (2) issued a Pa.R.Crim.P. 907 notice of intent to deny relief without a
hearing on January 4, 2011, and (3) denied Appellant’s first PCRA petition
on February 10, 2011. Appellant did not take an appeal.
Nearly forty-six months later, on December 1, 2014, the PCRA court
received Appellant’s pro se “Motion to Vacate Illegal Sentence,” which gives
rise to this appeal. Appellant sought relief based on the United States
Supreme Court’s decision in Alleyne.6 The court regarded the motion as a
second PCRA petition and on January 8, 2015, issued a Pa.R.Crim.P. 907
notice of its intent to dismiss the petition as untimely. Appellant filed a pro
se response citing, inter alia, this Court’s en banc decision in Newman.7
The court dismissed Appellant’s petition on February 9, 2015.
On March 25, 2015, the PCRA court filed and docketed Appellant’s pro
se notice of appeal. However, the notice of appeal bore a handwritten date
of March 8, 2015, as did Appellant’s certificate of service and verification.
6 We note Alleyne was decided on June 17, 2013, more than seventeen months before the PCRA court received the instant petition. 7 Newman was decided on August 20, 2014, more than three months before the PCRA court received the petition.
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The court, on March 27, 2015, authored a Pa.R.A.P. 1925(a) opinion 8
indicating that Appellant’s notice of appeal was facially untimely, but the
“prisoner [mailbox] rule may be implicated.” PCRA Ct. Op., 3/27/15. The
court did not resolve the uncertainty surrounding the timeliness of
Appellant’s appeal, but suggested the appeal be dismissed or its ruling be
affirmed based on its previous order dismissing the petition. Id.
Appellant, in his pro se brief, presents the following question for our
review: “Did the [PCRA] court err in dismissing [Appellant’s] PCRA [petition
by] not recognizing the § 9545 exception of ‘after recognized constitutional
rights’ and ‘a[n] illegal sentence can[not] be waived[?’]” Appellant’s Brief at
3. He notes the legal resources at the State Correctional Institution at
Mercer are limited and argues he exercised reasonable diligence when filing
his second PCRA petition based on Alleyne and Newman. Id. at 6. He
further suggests a challenge to an illegal sentence cannot be waived. Id. at
7. No relief is due.
Preliminarily, we address the PCRA court’s suggestion that Appellant’s
notice of appeal was not filed within thirty days. See Pa.R.A.P. 903(a).
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001)
(noting “questions of jurisdiction may be raised sua sponte”). It is well
settled the “prisoner mailbox rule provides that a pro se prisoner’s document
8 The PCRA court did not require Appellant to file a Pa.R.A.P. 1925(b) statement.
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is deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation
omitted).
In this case, the time to file an appeal from the PCRA court’s February
9, 2015 order ended on March 11, 2015. See Pa.R.A.P. 903(a). Appellant
signed and dated his notice of appeal and a certificate of service on Sunday,
March 8, 2015, three days before that deadline. We acknowledge there is
uncertainty surrounding Appellant’s certification that he deposited his notice
of appeal with prison officials on March 8th and that Appellant bore the
burden to proving the timeliness of his appeal. See Chambers, 35 A.3d at
40. However, we adopt March 8th as the date of filing and conclude the
present appeal is timely.9 See Chambers, 35 A.3d at 40. Accordingly, we
decline to quash this appeal and consider Appellant’s arguments in this
appeal.
When analyzing the dismissal of a PCRA petition, “an appellate court’s
scope of review is limited by the PCRA’s parameters; since most PCRA
appeals involve mixed questions of fact and law, the standard of review is
whether the PCRA court’s findings are supported by the record and free of
legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).
9 Although we could remand for the PCRA court to determine the filing date of this appeal, such a procedure would not be an efficient use of judicial resources. See Chambers, 35 A.3d at 40.
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The timeliness of a PCRA petition is a threshold question that
implicates the jurisdiction of a court to consider the merits of the relief
requested. See Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super.
2014); Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super.)
(citations omitted) appeal denied, 101 A.3d 103 (Pa. 2014). Although a
legality of sentence claim cannot be “waived,” the claim must be presented
in a timely PCRA petition to obtain post-conviction collateral relief. See
Seskey, 86 A.3d at 241. “[A] legality [of sentence] claim may . . . be lost
should it be raised for the first time in an untimely PCRA petition for which
no time-bar exception applies, thus depriving the [PCRA] court of jurisdiction
over the claim.” Id. (citations omitted).
“[A]n untimely petition may be received when the petition alleges, and
the petitioner proves, that any of the three limited exceptions to the time for
filing the petition, set forth at [42 Pa.C.S. § 9545] are met.”
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014). Section
9545, in relevant part, provides:
(1) Any petition under this subchapter, 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:
* * *
(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.
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(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
42 Pa.C.S. § 9545(b)(1)(iii)-(2). “[A] constitutional right newly recognized
by the Supreme Court of the United States is made retroactive to cases on
collateral review only if that court specifically holds it to be retroactively
applicable to cases on collateral review.” Commonwealth v. Phillips, 31
A.3d 317, 320-21 (Pa. Super. 2011).
In Alleyne, the United States Supreme Court held that “any fact that
increases the mandatory minimum [sentence] is an ‘element’ that must be
submitted to the jury.” Alleyne, 133 S. Ct. at 2155 (citations omitted).
However, “neither our Supreme Court, nor the United States Supreme Court
has held that Alleyne is to be applied retroactively to cases in which the
judgment of sentence had become final.” Commonwealth v. Miller, 102
A.3d 988, 995 (Pa. Super. 2014).
It is undisputed that Appellant’s second PCRA petition, filed almost
four years after his sentence became final, was 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, 2/9/15, at 2-3. As noted above, neither the United States
Supreme Court nor the Pennsylvania Supreme Court has specifically held
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those rights apply retroactively to cases on collateral review.10 See 42
Pa.C.S. § 9545(b)(1)(iii); Miller, 102 A.3d at 995. Thus, the PCRA court
correctly determined it lacked jurisdiction to consider the claims raised in
Appellant’s untimely second PCRA petition.11 See Miller, 102 A.3d at 995;
Seskey, 86 A.3d at 241.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/15/2015
10 Similarly, our decision in Wolfe provides no basis to assert a timeliness exception to the PCRA under Section 9545(b)(1)(iii). Moreover, we note that Wolfe did not consider the sentencing provisions in 42 Pa.C.S. § 9718(a)(3). 11 In light of our decision, we need not consider whether Appellant filed the underlying petition “within 60 days of the date the claim could have been presented” as required by 42 Pa.C.S. § 9545(b)(2).
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