Com. v. Crossan, J.

Opinion

J-S24041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSEPH EVANS CROSSAN

Appellant No. 1864 MDA 2015

Appeal from the Order Entered September 10, 2015 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003321-2009

BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 06, 2016

Appellant, Joseph Evans Crossan, appeals from the order entered in

the Lancaster County Court of Common Pleas, which denied his serial

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. On March 10, 2010, a jury convicted Appellant of involuntary

deviate sexual intercourse with a child, aggravated indecent assault of a

child, indecent assault—complainant less than 13 years of age, and

corruption of minors. The court sentenced Appellant on June 15, 2010, to

an aggregate term of 50-100 years’ imprisonment. Appellant’s sentence

included mandatory minimums per 42 Pa.C.S.A. § 9718.2(a)(1) (providing

for mandatory minimum 25-year sentence for defendant convicted of sexual

offense, if at time of commission of current offense, defendant had

previously been convicted of sexual offense). This Court affirmed, and our J-S24041-16

Supreme Court denied allowance of appeal on September 28, 2011. See

Commonwealth v. Crossan, 26 A.3d 1202 (Pa.Super. 2011), appeal

denied, 612 Pa. 696, 30 A.3d 487 (2011).

Appellant timely filed his first PCRA petition pro se on June 19, 2012.

Counsel was appointed, and the PCRA court issued Rule 907 notice. On

October 19, 2012, the PCRA court dismissed Appellant’s petition. This Court

dismissed the appeal, and our Supreme Court denied allowance of appeal.

See Commonwealth v. Crossan, 623 Pa. 760, 83 A.3d 413 (2014).

Appellant subsequently filed several unsuccessful PCRA petitions. On August

26, 2015, Appellant filed the current pro se “petition for writ of habeas

corpus ad subjiciendum,” which the court treated as a PCRA petition. The

PCRA court denied Appellant’s petition on September 10, 2015, and

Appellant timely filed a pro se notice of appeal. Appellant timely complied

with the PCRA court’s Rule 1925(b) order, and the Commonwealth

responded to Appellant’s pro se Rule 1925(b) statement.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). 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

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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 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 December 27, 2011.

Appellant filed his current petition on August 26, 2015, more than 3 years

later; thus, the petition is patently untimely. See 42 Pa.C.S.A. §

9545(b)(1). Appellant attempts to invoke Section 9545(b)(1)(iii),

contending his sentence is unconstitutional pursuant to the United States

Supreme Court’s decision in Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013) (decided 6/17/13) (holding any fact

increasing mandatory minimum sentence for crime is considered element of

crime to be submitted to fact-finder and found beyond reasonable doubt).

Even if Appellant had complied with the 60-day rule, however, Alleyne does

not affect mandatory minimum sentences based on a prior conviction. See

id. at ___ n.1, 133 S.Ct. at 2160 n.1, 186 L.Ed.2d at ___ n.1. See also

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (stating Alleyne

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provides no relief where increase in minimum sentence is based on prior

conviction). Accordingly, the PCRA court properly denied Appellant’s

petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/6/2016

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