Com. v. Henry, R.

• Court: Superior Court of Pennsylvania
• Decided: March 9, 2016
• Docket: 1820 MDA 2015
• Status: Unpublished

Opinion

J-S24040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RAY HENRY

Appellant No. 1820 MDA 2015

Appeal from the PCRA Orders September 25 and 28, 2015 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000318-2009; CP-38-CR-0001760-2008

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

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 09, 2016

Appellant, Ray Henry, appeals from the orders entered in the Lebanon

County Court of Common Pleas, which dismissed his serial petitions filed

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. At docket no. 1760-2008, a jury convicted Appellant on February 6,

2009, of robbery (3 counts), conspiracy, and possessing instruments of

crime. The court sentenced Appellant on March 25, 2009, to an aggregate

term of 4-20 years’ imprisonment. The sentence included a deadly weapon

enhancement (“DWE”) per 204 Pa.Code § 303.10(a) (providing court shall

consider special DWE sentencing matrix when court determines offender

possessed/used deadly weapon during commission of offense). This Court

affirmed on March 3, 2010. See Commonwealth v. Henry, 996 A.2d 544 J-S24040-16

(Pa.Super. 2010). Appellant filed a pro se PCRA petition on April 12, 2010.

The court appointed counsel, who filed an amended petition on June 7,

2010. Following a hearing, the court denied relief on July 19, 2010. This

Court affirmed on February 23, 2011. See Commonwealth v. Henry, 24

A.3d 462 (Pa.Super. 2011). At docket no. 318-2009, Appellant pled guilty

on May 21, 2009, to two counts of robbery. The court sentenced Appellant

on June 24, 2009, to an aggregate term of 40 months to 10 years’

imprisonment, concurrent with the docket 1760-2008 sentence. The record

suggests the court also imposed a DWE sentence at this docket. Appellant

filed a PCRA petition on April 12, 2010, which he withdrew on June 7, 2010.

On May 1, 2015, Appellant filed his current pro se “Motion for

Modification and Correct Illegal Sentence Nunc Pro Tunc” at both dockets.

The court treated the motions as PCRA petitions, and on June 26, 2015,

appointed counsel and issued notice per Pa.R.Crim.P. 907. Appellant

responded on July 8, 2015. Counsel filed amended petitions on August 31,

2015. On September 25th and 28th, 2015, the court denied PCRA relief at

docket 1760-2008, and at docket 318-2009, respectively. Appellant timely

filed one notice of appeal on October 16, 2015, and a concise statement per

Pa.R.A.P. 1925(b) on October 26, 2015.1

____________________________________________

1 Ordinarily, where one or more orders resolves issues arising on more than one docket, an appellant must file separate notices of appeal from each order. See Pa.R.A.P. 341, Note. Upon inquiry from this Court, Appellant (Footnote Continued Next Page)

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The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,

625 Pa. 649, 91 A.3d 162 (2014). 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 statutory exceptions to the timeliness provisions of the PCRA allow for

very limited circumstances under which the late filing of a petition will be

excused; a petitioner asserting a timeliness exception must file a petition

within 60 days of the date the claim could have been presented. See 42

Pa.C.S.A. § 9545(b)(1-2). Instantly, Appellant’s judgment of sentence at

docket 1760-2008 became final on April 2, 2010, upon expiration of the time

to file a petition for allowance of appeal with our Supreme Court. See

Pa.R.A.P. 1113(a). Appellant’s judgment of sentence at docket 318-2009

became final on July 24, 2009, upon expiration of the time to file a notice of

appeal with our Superior Court. See Pa.R.A.P. 903(a). Appellant filed the

current PCRA petitions on May 1, 2015, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant now attempts to invoke the “new

constitutional right” exception to the statutory time bar per Section

_______________________ (Footnote Continued)

filed amended notices of appeal and amended concise statements (one for each docket). Given these circumstances, we decline to penalize Appellant for his technical non-compliance with Rule 341.

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9545(b)(1)(iii), relying on Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013), to declare unconstitutional the DWE

provision under which Appellant was sentenced. Nevertheless, even if

Alleyne created a new constitutional right, held to apply retroactively, and

even if Appellant complied with the 60-day rule, the law on which he relies

affords him no relief, because the DWE provision does not implicate

Alleyne. See Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super.

2014) (en banc), appeal denied, ___ Pa. ___, 104 A.3d 1 (2014) (noting

DWE does not implicate Alleyne). Thus, we affirm the denial of PCRA relief.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/9/2016

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