Com. v. Hopkins, W.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

WILLIAM HOPKINS,

Appellant No. 1611 WDA 2015

Appeal from the PCRA Order September 17, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002705-2010

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 7, 2016

Appellant, William Hopkins, appeals from the September 17, 2015

order denying his first petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

We previously summarized the facts of Appellant’s crimes and the

initial procedural history as follows:

At approximately 9:15 p.m. on December 23, 2009, Detective Jason Moss, a trained narcotics detective with the City of Pittsburgh Police Department, observed an individual pacing around a grocery store parking lot and making calls on a cellular phone. Detective Moss recognized that man from a previous encounter a month earlier as a drug user. Detective Moss testified that, after making calls, the man walked to the side of a building and began counting

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*

Retired Senior Judge assigned to the Superior Court.

his money. Detective Moss then observed a car pull up on a side street near the man and park against traffic under a “No Parking” sign. The Detective contacted his partners, who approached the vehicle. Upon observing the police approaching, the known drug user turned away from the car, fled the scene and escaped apprehension.

Detective Charles Higgins, one of Detective Moss’s partners that evening, testified that as he approached the car, he observed a juvenile later identified as T.H. throw an open brick of heroin to the car floor with his right hand. Detective Edward Fallert also observed T.H. throw a brick of heroin onto the floor of the vehicle. T.H. was arrested and the heroin was seized. As he approached the car, Detective Higgins also observed a loaded Smith & Wesson 0.38 caliber firearm between T.H.’s seat and the center console.

Detective Mark Goob approached the driver’s side of the vehicle and observed Appellant, the driver, start to reach down between the console and the driver’s seat and push his hand down into that area. Detective Goob ordered Appellant out of the vehicle. In the vehicle, between the driver’s seat and the center armrest, Detective Goob recovered two additional bricks of heroin. Counsel for Appellant stipulated that whoever possessed the heroin in the car did so with intent to distribute it, and not for personal use. Detective Fallert recovered $361.00 in cash and two cellular phones from Appellant pursuant to a search incident to arrest.

Trial court opinion, 4/2/12 at 3–4. A total of 150 stamp bags of heroin were found inside the vehicle; 50 were in the brick thrown by T.H. onto the floor on the passenger side of the vehicle and 100 were in the two bricks located between the driver’s seat and the center console.

Appellant was charged with one count each of person not to possess a firearm, 18 Pa.C.S.A. § 6105(a)(1), carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a)(1), PWID (heroin), 35 P.S. § 780–113(a)(30), and possession of a

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controlled substance (heroin), 35 P.S. § 780–113(a)(16). Appellant was also charged with one summary traffic count of prohibitions in specified places, 75 Pa.C.S.A. § 3353. Subsequently, the trial court granted [A]ppellant’s motion to sever the charge of person not to possess a firearm. On May 11, 2011, a jury trial was held; [A]ppellant failed to return to the courthouse after jury selection and, as a result, was tried in absentia. Appellant was found guilty of all counts, and the Honorable Jill E. Rangos found [A]ppellant guilty of the summary traffic count.

On October 17, 2011, a sentencing hearing was held in absentia. The Commonwealth had provided notice of its intention to seek the two separate mandatory minimum sentences applicable to the PWID count. Specifically, the twoyear mandatory minimum sentencing enhancement pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i) by virtue of the heroin weighing more than one gram, and the five-year mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712.1 because a gun was in close proximity to the drugs [were applied]. Appellant was sentenced to 40 to 80 months’ imprisonment for carrying a firearm without a license and a consecutive 7 to 15–year term for PWID; no further penalties were imposed on the remaining counts. Thereafter, on October 24, 2011, [A]ppellant was resentenced to the same sentence but provided credit for 8 days of time served.

Notice of appeal was filed on November 22, 2011.

Appellant complied with the trial court’s order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

Commonwealth v. Hopkins, 67 A.3d 817, 818–820 (Pa. Super. 2013).

We affirmed Appellant’s judgment of sentence, holding that the

evidence was sufficient to support his constructive possession of the heroin

and firearm found in the vehicle and that Appellant’s mandatory sentence

was proper. Id. Our Supreme Court denied Appellant’s petition for

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allowance of appeal on October 29, 2013. Commonwealth v. Hopkins, 78

A.3d 1090 (Pa. 2013).

Appellant, pro se, filed the instant PCRA petition on June 2, 2015. The

PCRA court appointed counsel, who filed an amended petition on July 20,

2015. On August 18, 2015, the PCRA court entered notice of its intent to

dismiss the petition as untimely pursuant to Pa.R.Crim.P. 907. On

September 17, 2015, relief was denied. Appellant filed a timely appeal to

this Court, and both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

Appellant raises the following issues on appeal:

I. The sentence violates the United States constitution because it exceeds the lawful maximum.

II. The PCRA Petition was timely filed within 60 days of Hopkins discovering that Alleyne applied to his case.

Appellant’s Brief at 5.

“In reviewing the propriety of an order granting or denying PCRA

relief, an appellate court is limited to ascertaining whether the record

supports the determination of the PCRA court and whether the ruling is free

of legal error.” Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super.

2013) (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)).

We grant great deference to the PCRA court’s findings that are supported in

the record and will not disturb them unless they have no support in the

certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.

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2014). “There is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

The timeliness of a PCRA petition is a jurisdictional threshold that may

not be disregarded in order to reach the merits of the claims raised in a

PCRA petition that is untimely. Commonwealth v. Cintora, 69 A.3d 759,

762 (Pa. Super. 2013). “We have repeatedly stated it is the [petitioner’s]

burden to allege and prove that one of the timeliness exceptions applies.

See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

Whether [a petitioner] has carried his burden is a threshold inquiry prior to

considering the merits of any claim.” Commonwealth v. Edmiston, 65

A.3d 339, 346 (Pa. 2013).

In order to be considered timely, a first, or any subsequent PCRA

petition, must be filed within one year of the date the petitioner’s judgment

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of

sentence “becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

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Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3). As noted supra, our Supreme Court

denied Appellant’s petition for allowance of appeal on October 29, 2013.

Thus, Appellant’s judgment of sentence became final on January 27, 2014,

when the time for seeking certiorari from the United States Supreme Court

expired. Id.1 Therefore, Appellant had until January 27, 2015, to file a

timely petition. Appellant’s PCRA petition, filed June 2, 2015, was untimely

filed.

Nevertheless, an 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(b)(1)(i), (ii),

and (iii), is met.2 “That burden necessarily entails an acknowledgment by

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1 Appellant had ninety days from the date of the Pennsylvania Supreme Court’s denial of his petition for allowance of appeal to file a petition for a writ of certiorari with the United States Supreme Court. Commonwealth v. Hackett, 956 A.2d 978, 980 n.4 (Pa. 2008); United States Supreme Court Rule 13. 2 The exceptions to the timeliness requirement are:

(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

(Footnote Continued Next Page)

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the petitioner that the PCRA petition under review is untimely but that one

or more of the exceptions apply.” Beasley, 741 A.2d at 1261. “However,

the PCRA limits the reach of the exceptions by providing that a petition

invoking any of the exceptions must be filed within 60 days of the date the

claim first could have been presented.” Commonwealth v. Walters, 135

A.3d 589, 592 (Pa. Super. 2016) (citing Commonwealth v. Leggett, 16

A.3d 1144, 1146 (Pa. Super. 2011), and 42 Pa.C.S. § 9545(b)(2)). In order

to be entitled to the exceptions to the PCRA’s one-year filing deadline, “the

petitioner must plead and prove specific facts that demonstrate his claim

was raised within the sixty-day time frame” under section 9545(b)(2).

Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).

Appellant admits that his petition was untimely filed, Appellant’s Brief

at 19, but he claims applicability of the “new constitutional right” exception

to the PCRA time-bar based on Alleyne v. United States, 133 S.Ct. 2151

(2013). Id.

In Alleyne, the Supreme Court held that the constitutional jury trial right requires any fact, other than a prior conviction, that triggers a mandatory minimum sentence to be proven beyond a

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(Footnote Continued)

(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)(i), (ii), and (iii).

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reasonable doubt before the finder of fact. Alleyne is an application of the Court’s prior pronouncement in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which ruled that any fact that increases a maximum sentence must be found by the factfinder beyond a reasonable doubt or admitted by the defendant during his guilty plea. In Alleyne, the United States Supreme Court expressly overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that a fact that involves a mandatory minimum sentence does not implicate jury trial rights. Alleyne also implicitly abrogated McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which withstood an Apprendi attack in the Harris decision.

In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (relying upon Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc)), we noted that Alleyne will be applied to cases pending on direct appeal when Alleyne was issued.

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)

(emphasis added).

Appellant also suggests that he filed his petition within sixty days of

discovering the applicability of Alleyne and Commonwealth v. Newman,

99 A.3d 86 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.

2015) (concluding that 42 Pa.C.S. § 9712.1, regarding the distance between

drugs and guns, is unconstitutional in light of Alleyne, as its subsections are

not severable). This allegation lacks merit. Appellant must establish that

the exception was raised within sixty days of the date the claim could have

been first presented. 42 Pa.C.S. § 9545(b)(2). Alleyne was decided two

years before Appellant filed his petition and Newman was filed ten months

before Appellant’s pro se petition. See Leggett, 16 A.3d at 1146 (stating

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that “[w]ith regard to an after-recognized constitutional right, . . . the sixty-

day period begins to run upon the date of the underlying judicial decision.”).

While this Court has held that Alleyne applies to cases that were on

direct appeal when Alleyne was issued, we have declined to construe that

decision as applying retroactively to cases in which the judgment of

sentence has become final.

In concluding Alleyne does not satisfy the new retroactive constitutional right exception to the PCRA’s one year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) Court explained:

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.

Id. at 995 (citations omitted) (emphasis supplied).

Commonwealth v. Ruiz, 131 A.3d. 54, 58 (Pa. Super. 2015) (emphasis in

original). Indeed, our Supreme Court recently held that “Alleyne does not

apply retroactively to cases pending on collateral review.” Commonwealth

v. Washington, 142 A.3d 810, 820 (Pa. 2016).

In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the claim presented and grant relief. See

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Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency

to adjudicate a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/7/2016