J-S85027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH DURKIN : : Appellant : No. 2017 EDA 2016
Appeal from the PCRA Order April 25, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0007257-2007
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 09, 2017
Appellant, Joseph Durkin, appeals pro se from the order entered April
25, 2016, denying as untimely his third petition filed under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In March 2008, following a bench trial, Appellant was sentenced to an
aggregate term of fifteen to forty years’ incarceration for one count of
Corrupt Organizations, three counts of Possession of a Controlled Substance,
two counts of Dealing with Proceeds of Unlawful Activities, two counts of
Criminal Attempt to Possess a Controlled Substance with Intent to
Manufacture or Deliver, and one count of criminal conspiracy.1 Appellant
was further ordered to pay mandatory fines of $150,000. In March 2009, ____________________________________________
1 Respectively, 18 Pa.C.S.A. § 911(b)(3); 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 5111(a)(1); 18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 903. J-S85027-16
this Court affirmed Appellant’s judgment of sentence. Commonwealth v.
Durkin, 974 A.2d 1180 (Pa. Super. 2009) (unpublished memorandum). In
February 2010, the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal. Commonwealth v. Durkin, 989 A.2d 7 (Pa.
2010).
In July 2010, Appellant filed his first petition for collateral relief, which
was denied, and this Court affirmed. Commonwealth v. Durkin, 100 A.3d
302 (Pa. Super. 2014) (unpublished memorandum). Appellant filed a
second PCRA petition in June 2014, which was dismissed as untimely. This
Court affirmed, and appellant did not file a petition for allowance of appeal
with the Pennsylvania Supreme Court. Commonwealth v. Durkin, 125
A.3d 440 (Pa. Super. 2015) (unpublished memorandum).
In February 2016, Appellant pro se filed a Petition for Writ of Habeas
Corpus petition, essentially his third PCRA petition. In March 2016, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition without a hearing. The PCRA court did not direct
Appellant to file a Pa.R.A.P. 1925(b) statement but issued a memorandum
opinion explaining its decision.
Appellant raises the following issue:
(1) Does the creation or manifest result of four (4) separate classes of offenders under the Commonwealth’s mandatory minimum sentencing statutes for identically situated defendants violate the Equal Protection clause of Article 1 section 26 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution?
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Appellant’s Brief at 3.
The standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of the record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual
findings deference unless there is no support for them in the certified record.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
Although Appellant filed a petition seeking habeas corpus relief, it is
proper to review under the PCRA. The PCRA is the “sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose…, including habeas corpus.” 42 Pa.C.S. §
9542. Both the PCRA and the state habeas corpus statute contemplate that
the PCRA subsumes the writ of habeas corpus in circumstances where the
PCRA provides a remedy for the claim. Commonwealth v. Peterkin, 722
A.2d 638, 640 (Pa. 1998).
Here, Appellant challenges the legality of his sentence. Because the
PCRA provides a remedy for Appellant’s claims, the lower court was correct
in treating the petition as a request for relief under the PCRA.
Therefore, we must next address the PCRA timeliness requirements.
The timeliness of Appellant’s petition implicates jurisdiction and may not be
altered or disregarded in order to address the merits of his claim.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
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PCRA, all petitions seeking collateral relief must be filed within one year of
the date the judgment of sentence becomes final. Id.
Here, Appellant’s judgement of sentence became final on May 6, 2010,
when the 90 day period for filing for writ of certiorari with the United States
Supreme Court expired. See 42 Pa.C.S. §9545(b)(3). The instant PCRA
was filed on February 11, 2016, more than six years after the judgment of
sentence became final. The Appellant’s petition is patently untimely, and for
this court to have jurisdiction to review the merits of Appellant’s claims, he
must prove the applicability of one of the exceptions to the timeliness
requirement.
There are three statutory exceptions:
(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. § 9545(b)(1). Appellant has the burden of proving an exception
to the time bar. Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa.
2008). In addition, a petition seeking relief pursuant to a statutory
exception must adhere to the additional requirement of filing the claim
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within 60 days of the date the claim could have been first presented. 42
Pa.C.S. § 9545(b)(2).
Appellant asserts that he is entitled to relief because Alleyne creates
new classes of offenders who are identically situated but treated differently,
thus violating the Equal Protection Clause of the United States Constitution
and illegally sentencing Appellant. This claim is waived, as Appellant failed
to raise it in his PCRA petition. See Commonwealth v. Wallace, 724 A.2d
916, 921 n.5 (1999) (issues not raised in PCRA petition cannot be
considered on appeal).
Essentially, Appellant challenges the legality of his sentence, claiming
that the mandatory sentences and fines are unlawful. See Petition for Writ
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J-S85027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH DURKIN : : Appellant : No. 2017 EDA 2016
Appeal from the PCRA Order April 25, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0007257-2007
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 09, 2017
Appellant, Joseph Durkin, appeals pro se from the order entered April
25, 2016, denying as untimely his third petition filed under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In March 2008, following a bench trial, Appellant was sentenced to an
aggregate term of fifteen to forty years’ incarceration for one count of
Corrupt Organizations, three counts of Possession of a Controlled Substance,
two counts of Dealing with Proceeds of Unlawful Activities, two counts of
Criminal Attempt to Possess a Controlled Substance with Intent to
Manufacture or Deliver, and one count of criminal conspiracy.1 Appellant
was further ordered to pay mandatory fines of $150,000. In March 2009, ____________________________________________
1 Respectively, 18 Pa.C.S.A. § 911(b)(3); 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 5111(a)(1); 18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 903. J-S85027-16
this Court affirmed Appellant’s judgment of sentence. Commonwealth v.
Durkin, 974 A.2d 1180 (Pa. Super. 2009) (unpublished memorandum). In
February 2010, the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal. Commonwealth v. Durkin, 989 A.2d 7 (Pa.
2010).
In July 2010, Appellant filed his first petition for collateral relief, which
was denied, and this Court affirmed. Commonwealth v. Durkin, 100 A.3d
302 (Pa. Super. 2014) (unpublished memorandum). Appellant filed a
second PCRA petition in June 2014, which was dismissed as untimely. This
Court affirmed, and appellant did not file a petition for allowance of appeal
with the Pennsylvania Supreme Court. Commonwealth v. Durkin, 125
A.3d 440 (Pa. Super. 2015) (unpublished memorandum).
In February 2016, Appellant pro se filed a Petition for Writ of Habeas
Corpus petition, essentially his third PCRA petition. In March 2016, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition without a hearing. The PCRA court did not direct
Appellant to file a Pa.R.A.P. 1925(b) statement but issued a memorandum
opinion explaining its decision.
Appellant raises the following issue:
(1) Does the creation or manifest result of four (4) separate classes of offenders under the Commonwealth’s mandatory minimum sentencing statutes for identically situated defendants violate the Equal Protection clause of Article 1 section 26 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution?
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Appellant’s Brief at 3.
The standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of the record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual
findings deference unless there is no support for them in the certified record.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
Although Appellant filed a petition seeking habeas corpus relief, it is
proper to review under the PCRA. The PCRA is the “sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose…, including habeas corpus.” 42 Pa.C.S. §
9542. Both the PCRA and the state habeas corpus statute contemplate that
the PCRA subsumes the writ of habeas corpus in circumstances where the
PCRA provides a remedy for the claim. Commonwealth v. Peterkin, 722
A.2d 638, 640 (Pa. 1998).
Here, Appellant challenges the legality of his sentence. Because the
PCRA provides a remedy for Appellant’s claims, the lower court was correct
in treating the petition as a request for relief under the PCRA.
Therefore, we must next address the PCRA timeliness requirements.
The timeliness of Appellant’s petition implicates jurisdiction and may not be
altered or disregarded in order to address the merits of his claim.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
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PCRA, all petitions seeking collateral relief must be filed within one year of
the date the judgment of sentence becomes final. Id.
Here, Appellant’s judgement of sentence became final on May 6, 2010,
when the 90 day period for filing for writ of certiorari with the United States
Supreme Court expired. See 42 Pa.C.S. §9545(b)(3). The instant PCRA
was filed on February 11, 2016, more than six years after the judgment of
sentence became final. The Appellant’s petition is patently untimely, and for
this court to have jurisdiction to review the merits of Appellant’s claims, he
must prove the applicability of one of the exceptions to the timeliness
requirement.
There are three statutory exceptions:
(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. § 9545(b)(1). Appellant has the burden of proving an exception
to the time bar. Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa.
2008). In addition, a petition seeking relief pursuant to a statutory
exception must adhere to the additional requirement of filing the claim
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within 60 days of the date the claim could have been first presented. 42
Pa.C.S. § 9545(b)(2).
Appellant asserts that he is entitled to relief because Alleyne creates
new classes of offenders who are identically situated but treated differently,
thus violating the Equal Protection Clause of the United States Constitution
and illegally sentencing Appellant. This claim is waived, as Appellant failed
to raise it in his PCRA petition. See Commonwealth v. Wallace, 724 A.2d
916, 921 n.5 (1999) (issues not raised in PCRA petition cannot be
considered on appeal).
Essentially, Appellant challenges the legality of his sentence, claiming
that the mandatory sentences and fines are unlawful. See Petition for Writ
of Habeas Corpus, 2/11/16, at 1-2 (citing in support Alleyne v. United
States, 135 S. Ct. 1251 (2013). Appellant asserts, that Alleyne should be
applied retroactively thus entitling him to collateral relief. Id. at 5.
The United States Supreme Court was clear in Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), holding that state collateral review courts
must give retroactive effect to a new, substantive rule of constitutional law.
Id. at 729. The Pennsylvania Supreme Court has determined that the rule
announced in Alleyne was neither a substantive nor a “watershed”
procedural rule and, therefore, did not apply retroactively to cases pending
on collateral review. Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016), see also Commonwealth v. Riggle, 119 A.3d 1058, 1064-67
(Pa. Super. 2015).
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Appellant’s petition is untimely, and he has not satisfied a timeliness
exception to the requirements of the PCRA. Consequently, the PCRA court
was without jurisdiction to review the merits of Appellant’s claim and
properly dismissed his petition. See Ragan, 932 A.2d at 1170.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/9/2017
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