Com. v. McCurdy, J.

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2017
• Docket: 1018 WDA 2016
• Status: Unpublished

Opinion

J-S92038-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : I000N THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JOHN MCCURDY, : : Appellant : No. 1018 WDA 2016

Appeal from the PCRA Order August 14, 2015 in the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000536-2006

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

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 9, 2017

John McCurdy (Appellant) appeals from the August 14, 2015 order

which dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In 2006, following convictions for inter alia, corrupt organizations,

criminal conspiracy, and possession of a controlled substance, Appellant was

sentenced to 13½ to 28 years of imprisonment. On February 15, 2008, this

Court affirmed Appellant’s judgment of sentence, Commonwealth v.

McCurdy, 943 A.2d 299 (Pa. Super. 2008), and Appellant did not file a

petition for allowance of appeal.

Appellant’s first PCRA petition resulted in no relief. Commonwealth

v. McCurdy, 75 A.3d 559 (Pa. Super. 2013) (unpublished memorandum).

Appellant filed the petition that is the subject of the instant appeal on April

*Retired Senior Judge assigned to the Superior Court. J-S92038-16

2, 2014. Counsel was appointed and filed an amended petition on

Appellant’s behalf on August 14, 2015. Therein, Appellant claimed that he is

entitled to relief because his sentence is illegal under Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015) (applying Alleyne v. United States,

133 S.Ct. 2151 (2013) to hold that the mandatory minimum sentence found

at 18 Pa.C.S. § 6317 (relating to drug activity in a school zone) is

unconstitutional).

An evidentiary hearing was held on September 4, 2015. On November

13, 2015, the PCRA court issued an order and opinion denying Appellant’s

petition. Although still represented by counsel, Appellant filed pro se a

notice of appeal, and the PCRA court ordered Appellant to comply with

Pa.R.A.P. 1925(b). Though ordered by the PCRA court, the certified record

was never transmitted to this Court. On June 3, 2016, counsel filed a

motion to withdraw, which the PCRA court subsequently granted. On June

15, 2016, Appellant filed a request to file an appeal nunc pro tunc and

requested the appointment of counsel, which the PCRA court granted on

June 21, 2016. Appellant timely filed a notice of appeal and his case is now

ready for disposition.

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

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was raised within 60 days of the date on which it became available. 42

Pa.C.S. § 9545(b) and (c).

The timeliness of a post-conviction petition is jurisdictional. See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

It is clear that Appellant’s 2014 petition is facially untimely: his

judgment of sentence became final in 2008. However, Appellant alleges that

his petition satisfies the following timeliness exception: “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)(iii). In doing so, Appellant urges

this Court to find that Hopkins should apply retroactively. Appellant’s Brief

at 10-11.

Appellant’s argument is unavailing. The Hopkins Court did not

recognize a new constitutional right, let alone hold that any such right

applied retroactively; rather, it merely applied Alleyne to hold that a

particular mandatory minimum sentence not applied to Appellant was

unconstitutional. Furthermore, as acknowledged by Appellant, our Supreme

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Court held that Alleyne “does not apply retroactively to cases pending on

collateral review.” Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016). See Appellant’s Brief at 11.

Accordingly, Appellant failed to establish the applicability of a

timeliness exception, and the PCRA court properly dismissed the petition for

lack of jurisdiction.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/9/2017

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