Com. v. Minor, F.

• Court: Superior Court of Pennsylvania
• Decided: June 10, 2016
• Docket: 2515 EDA 2015
• Status: Unpublished

Opinion

J-S19026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

FRED MINOR

Appellant No. 2515 EDA 2015

Appeal from the PCRA Order entered July 8, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0402601-2004

BEFORE: BENDER, P.J.E., STABILE,and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 10, 2016

Appellant, Fred Minor, appeals pro se from the July 8, 2015 order

entered in the Court of Common Pleas of Philadelphia County, denying his

third petition for collateral relief pursuant to the Post Conviction Relief Act

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

The trial court summarized the relevant factual and procedural

background in its Rule 1915 opinion, which we adopt here by reference.

Trial Court Opinion, 8/19/15, at 1-2. Briefly, following trial, a jury found

Appellant guilty of robbery, aggravated assault, burglary and possessing an

instrument of crime in 2004. On October 27, 2004, Appellant timely

appealed to the Superior Court. On March 29, 2005, Appellant withdrew his

direct appeal. J-S19026-16

Appellant filed his timely first PCRA petition on September 15, 2005.

The PCRA court dismissed the petition on June 11, 2007. On appeal, this

Court affirmed the dismissal. On April 11, 2011, Appellant filed his second

PCRA petition, which was dismissed in December of 2011. Approximately

three years later, in October of 2014, Appellant filed the instant petition

seeking reatroactive application of Alleyne1 to his sentence. The PCRA

court denied the petition, finding it untimely. We agree.

Before we address the merits of Appellant’s numerous issues,2 we

must determine whether we can entertain the instant appeal. Appellant

acknowledges that his petition is facially untimely because he did not file it

within one year of the date on which his judgment of sentence became final.

See 42 Pa.C.S.A. § 9545(b). Appellant, however, argues his petition

qualifies for the timeliness exception set forth in § 9545(b)(1)(iii) because

the United States Supreme Court announced a new constitutional right in

Alleyne. The Alleyne Court held: “Any fact that, by law, increases the

minimum penalty for a crime is an ‘element’ that must be submitted to the

jury and found beyond a reasonable doubt.” Id. at 2155. On that basis,

Appellant argues the application of mandatory minimums to his sentences ____________________________________________

1 Alleyne v. United States, 133 S. Ct. 2151 (2013). 2 We note Appellant failed to comply with most, if not all, briefing requirements, which is generally adequate ground for dismissal or quashal of an appeal. See Pa.R.A.P. 2101.

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pursuant to 42 Pa.C.S.A. § 9712 was illegal. He further argues that our

decision in Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014)

(en banc), entitles him to avail himself of § 9545(b)(1)(iii).

We discern two fatal flaws in Appellant’s argument. First, Appellant’s

judgment of sentence became final well before June 17, 2013,3 the date the

United States Supreme Court decided Alleyne. In Newman, we explained

that Alleyne will apply to cases pending on direct appeal as of June 17,

2013.4 See also Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.

2014) (“[N]either 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.”). Accordingly, Appellant cannot

rely on Alleyne to overcome the PCRA’s jurisdictional time bar.

____________________________________________

3 Appellant’s judgment of sentence became final on March 29, 2005, when he withdrew his direct appeal. See Commonwealth v. Conway, 706 A.2d 1243, 1244 (Pa. Super. 1997) (judgment of sentence becomes final when direct appeal is discontinued). 4 Appellant suggested that the “Supreme Court” in Newman announced a new rule. The Newman decision was handed down by the Superior Court (en banc), not the Supreme Court. “There has been some debate amongst the jurists on the Pennsylvania Supreme Court on whether the Superior Court can announce a new rule of law at all.” Commonwealth v. Concordia, 97 A.3d 366, 369 n.1 (Pa. Super. 2014) (citing Passarello v. Grumbine, 87 A.3d 285 (Pa. 2014)). At any rate, Newman, as other Superior Court cases interpreting Alleyne, does not announce a new constitutional rule, but simply applies the new constitutional rule of procedure announced in Alleyne.

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Second, Appellant filed the instant petition approximately 15 months

after Alleyne. The PCRA statute required Appellant to file his petition

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

Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Cintora, 69 A.3d

759, 763 (Pa. Super. 2013) (“To fulfill the 60–day requirement, [a]ppellants

needed to file their petitions within 60 days from the date of the court’s

decision.”); Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super.

2012) (“the sixty-day period begins to run upon the date of the underlying

judicial decision.”). Appellant’s petition, filed approximately 15 months after

United States Supreme Court announced its decision in Alleyne, does not

qualify. The PCRA court correctly determined that it lacked jurisdiction to

entertain Appellant’s petition.

Because Appellant’s facially untimely petition fails to properly invoke

an exception to the timeliness requirements of the PCRA, and because

Alleyne does not apply retroactively on collateral review, Appellant is not

entitled to relief. Miller, supra; Newman, supra. Therefore, the trial

court properly dismissed Appellant’s third PCRA petition. We direct that a

copy of the trial court’s August 19, 2015 opinion be filed along with this

judgment order and attached to any future filings in this case.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/10/2016

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