Com. v. Hall, J.

Opinion

J. S30022/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JEROME V. HALL, JR., : No. 2814 EDA 2014 : Appellant :

Appeal from the PCRA Order, August 22, 2014, in the Court of Common Pleas of Montgomery County Criminal Division at No. CP-46-CR-0002864-2008

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 24, 2015

Jerome V. Hall, Jr., appeals, pro se, from the order of August 22,

2014, dismissing his second Post Conviction Relief Act (“PCRA”) petition

without a hearing.1 We affirm.

Appellant entered an open guilty plea to two counts of possession with

intent to deliver cocaine and a single count each of corrupt organizations,

criminal conspiracy, and criminal use of a communication facility. On

June 16, 2009, appellant was sentenced to an aggregate term of 8 to

16 years’ imprisonment. The sentence included a mandatory sentence of 3

to 6 years and a $15,000 fine pursuant to 18 Pa.C.S.A. § 7508(b).

1 See 42 Pa.C.S.A. §§ 9541-9546. J. S30022/15

Appellant did not file a post-sentence motion or a direct appeal. On

June 7, 2010, appellant filed a pro se PCRA petition; counsel was

subsequently appointed. Scott C. McIntosh, Esq., filed a “no merit” letter in

accordance with Turner/Finley2 and a request to withdraw. The petition

was dismissed and counsel was granted leave to withdraw.

On July 7, 2014, appellant filed his second pro se PCRA petition. On

July 22, 2014, the court filed notice, pursuant to Pa.R.Crim.P. Rule 907,

42 Pa.C.S.A., of its intention to dismiss appellant’s petition without a

hearing. Appellant’s petition was dismissed in an order filed on August 22,

2014, and this timely appeal followed. (Docket #41, 42.) Appellant filed a

concise statement of matters to be complained of on appeal and presents

the following claims for our review:

1. The trial court erred by dismissing [appellant’s] P.C.R.A. when it is clear that [appellant’s] sentence was illegal, the legality of a sentence is a non-waivable issue subject to review at any stage of the judicial process or sua sponte by the court.

2. The trial court erred by not utilizing an exception that exist[s] where the trial court discovers that the sentence originally imposed was illegal in which case it may alter the sentence beyond the 30 day period.

3. The trial court erred by claiming it does not have jurisdiction to address the merits of [appellant’s] claim because [appellant’s] petition is untimely and [appellant] has not

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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satisfied any of the timeliness exceptions. Due to the merits of [appellant’s] claim[,] a challenge to the legality of a sentence may be raised as a matter of right, is non-waivable and may be entertained as long as [the] re[view]ing court has jurisdiction.

4. The trial court erred by claiming [appellant] did not satisfy any of the timeliness exceptions. Where the mandatory minimum sentence[s] were deemed “Unconstitutional by the Supreme Court in August 2014[,]” [w]hich bolstered [appellant’s] argument that the mandatory minimum sentence is illegal and a violation of [appellant’s] constitutional rights and laws of the Commonwealth. Also, being that these facts were unknown to [appellant] at the time and could not have been ascertained by exercise of due diligence. The grounds [appellant] raised in a timely P.C.R.A. and preserved were the denial of his constitutional rights, ineffectiveness of plea counsel, an unlawfully induced guilty plea, the imposition of a sentence in excess of the lawful maximum and lack of jurisdiction.

5. The trial court erred claiming [appellant] was not sentenced to an illegal sentence when the mandatory sentence imposed violated the sixth amendment, fifth amendment, and the fourteenth amendment of the constitution of the Commonwealth of Pennsylvania.

Appellant’s brief at 7-8. Each of these issues essentially claims that the

PCRA court erred in denying his petition as untimely where the sentence he

is serving is illegal. We disagree.

Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error. Commonwealth v.

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Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

A PCRA petition, including a second or subsequent one, must be filed

within one year of the date that the judgment of sentence becomes final.

42 Pa.C.S.A. § 9545(b)(1). This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038

(Pa.Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008). In this case,

appellant’s judgment of sentence became final on Thursday, July 16, 2009,3

when the time for filing a direct appeal expired. See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P., Rule 903, 42 Pa.C.S.A. The instant petition, filed

July 7, 2014, is manifestly untimely and the PCRA court lacked jurisdiction to

review it unless appellant pleaded and proved a valid exception to the time

bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Appellant’s arguments assume that where a petitioner is challenging

the legality of sentence, the issue cannot be waived and must always be

heard. This is only partially correct. While a question pertaining to the

legality of sentence cannot be waived, our supreme court has ruled that it

cannot be reviewed pursuant to an untimely PCRA petition:

3 We disagree with the PCRA court’s conclusion that appellant’s judgment of sentence became final on August 16, 2009. (Trial court opinion, 12/2/14 at 4.)

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Appellant’s fourth contention is that his petition cannot be barred as untimely because to do so would result in the execution of an illegal sentence of death. Appellant offers that even if untimely, a petitioner’s claims will always be considered on the merits when the claims challenge the legality of the sentence. Appellant is mistaken. Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA’s time limits or one of the exceptions thereto. Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999). Thus, Appellant’s contention is easily dismissed.

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). This court does

not have jurisdiction to address the legality of sentence pursuant to an

untimely PCRA petition. Commonwealth v. Slotcavage, 939 A.2d 901,

903 (Pa.Super. 2007). “Though not technically waivable, a legality [of

sentence] claim may nevertheless 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 court of jurisdiction over the claim.” Id.

Appellant’s fourth issue also suggests that his discovery of Alleyne v.

United States, 133 S.Ct. 2151 (2013) (holding that, to comply with the

dictates of the Sixth Amendment, facts that increase mandatory minimum

sentence are elements of offense and must be submitted to jury and proven

beyond a reasonable doubt), is a new fact to satisfy the exception to the

time-bar. However, our supreme court has held that “subsequent decisional

law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of the

PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). Thus, an

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assertion that publication of the Alleyne decision qualifies as a previously

unknown fact, triggering the timeliness exception set forth in

Section 9545(b)(1)(ii), fails.

Appellant also suggests he should be afforded the benefit of a newly

recognized, retroactively applied constitutional right to relief predicated on

the Alleyne decision. He suggests that a challenge to the legality of a

sentence cannot be waived, and that Alleyne retroactively applies to this

case, rendering his untimely petition reviewable on the merits. We conclude

that Alleyne is unavailing to appellant’s claim.

First, we note that appellant did not raise the exception at

Section 9545(b)(1)(iii) in a timely manner. Alleyne was decided on

June 17, 2013. Appellant did not file the instant PCRA petition until July 7,

2014, well over 60 days after the date the claim could have been presented.

See 42 Pa.C.S.A. § 9545(b)(2) (requiring that any PCRA petition invoking

one of the time-bar exceptions must be filed within 60 days from the date

the claim could have been presented); Commonwealth v. Boyd, 923 A.2d

513, 517 (Pa.Super. 2007).

Also instructive to the instant case is this court’s decision in

Commonwealth v. Miller, 102 A.3d 988, 993 (Pa.Super. 2014), in which

the appellant argued the applicability of Section 9545(b)(1)(iii) to his

patently untimely PCRA petition. Specifically, the appellant averred that the

Alleyne decision announced a new constitutional right that applies

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retroactively to cases on collateral review. Id. at 993-994. The Miller court

disagreed, explaining:

Even assuming that Alleyne did announce a new constitutional right, 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. This is fatal to Appellant’s argument regarding the PCRA time-bar. This Court has recognized that a new rule of constitutional law is applied retroactively to cases on collateral review only if the United States Supreme Court or our Supreme Court specifically holds it to be retroactively applicable to those cases. Therefore, Appellant has failed to satisfy the new constitutional right exception to the time-bar.

We are aware that an issue pertaining to Alleyne goes to the legality of the sentence. It is generally true that this Court is endowed with the ability to consider an issue of illegality of sentence sua sponte. However, in order for this Court to review a legality of sentence claim, there must be a basis for our jurisdiction to engage in such review. As this Court recently noted, [t]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised . . . in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim. As a result, the PCRA court lacked jurisdiction to consider the merits of Appellant’s second PCRA petition, as it was untimely filed and no exception was proven.

Id. at 994-996 (emphasis added, quotation marks, footnote, and citations

omitted).

Miller squarely applies to this case. Like the appellant in Miller,

appellant raised Alleyne more than one year after his judgment of sentence

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became final. Moreover, even if Alleyne announced a new constitutional

right, neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held that this right applies retroactively to cases on

collateral review. See id. at 995. “This is fatal to appellant’s argument

regarding the PCRA time-bar.” Id. Thus, although Alleyne implicates the

legality of appellant’s sentence, we lack jurisdiction to address this issue.

Id. at 995-996.

Accordingly, we affirm the PCRA court’s order dismissing appellant’s

second petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/24/2015

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