J-S48038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
LAVINCE J. PATE,
Appellant No. 191 MDA 2014
Appeal from the Order January 23, 2014 in the Court of Common Pleas of Dauphin County Criminal Division at No.: CP-22-CR-0002793-2008
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 21, 2014
Appellant, Lavince J. Pate, appeals pro se from the order dismissing
his second petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
On November 19, 2009, a jury found Appellant guilty of possession
with intent to deliver a controlled substance, unlawful possession of drug
paraphernalia, and firearms not to be carried without a license. 1 His
conviction stems from a traffic stop that took place on April 4, 2008, during
which police seized crack cocaine, a digital scale, and a firearm from under
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. §§ 780-113(a)(30), (32), and 18 Pa.C.S.A. § 6106(a)(1), respectively. J-S48038-14
the front passenger seat, where Appellant had been sitting. On January 20,
2010, the trial court held a sentencing hearing and determined that
imposition of the five-year mandatory minimum sentence2 was appropriate
see also id. at
3-4, 8-9). The court sentenced Appellant to an aggregate term of not less
appeal, and this Court affirmed the judgment of sentence on October 21,
2010. (See Commonwealth v. Pate, 15 A.3d 537 (Pa. Super. 2010)
(unpublished memorandum)). Our Supreme Court denied his petition for
allowance of appeal on February 17, 2011. (See Commonwealth v. Pate,
14 A.3d 826 (Pa. 2011)).
On March 27, 2012, Appellant filed a PCRA petition, which the PCRA
court denied on August 24, 2012. Appellant appealed, and this Court
See Commonwealth
v. Pate, 82 A.3d 459 (Pa. Super. 2013) (unpublished memorandum)).
On August 14, 2013, Appellant, acting pro se, filed the instant PCRA
petition, claiming that his sentence is illegal based on the United States
Alleyne v. United States, 133 S. Ct. 2151,
2155 (2013) (holding that, to comply with dictates of Sixth Amendment,
2 See 42 Pa.C.S.A. § 9712.1.
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facts that increase mandatory minimum sentence are elements of offense
and must be submitted to jury and proven beyond reasonable doubt). 3 (See
PCRA Petition, 8/14/13, at 3, 7). On August 29, 2013, the PCRA court
issued notice of its intention to dismiss the PCRA petition without a hearing.
See Pa.R.Crim.P. 907(1). Appellant did not respond. On October 1, 2013,
the PCRA court dismissed the petition. However, on October 25, 2013, the
court entered a memorandum opinion stating its intention to vacate the
October 1, 2013 order, and directed the Commonwealth to file a response.4
On November 4, 2013, the court entered an order vacating the October 1,
2013 order. The Commonwealth filed a response on December 16, 2013.
On December 26, 2013, Appellant filed a supplemental PCRA petition. On
December 31, 2013, the court entered a memorandum opinion and Rule 907
3 The Alleyne Court overruled previous precedent because, prior to the decision, state legislatures were free to delegate fact-finding authority relative to mandatory minimum sentences to sentencing judges. See Alleyne, supra at 2155; see also Commonwealth v. Hanson, 82 A.3d 1023, 1039-40 (Pa. 2013). 4 It appears that the PCRA court took this action in order to consider this Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), which was filed on October 10, 2013. (See Trial Court Opinion, 12/31/13, at 2-4, 6). The Munday court considered Alleyne in the context of a direct appeal, and determined that stand because the facts necessary for imposition of the mandatory minimum sentence were not determined by the factfinder to have been proven beyond a reasonable doubt. See Munday, supra at 662, 666.
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notice of its intent to dismiss the petition. On January 23, 2014, the court
entered its order dismissing the PCRA petition. This timely appeal followed.5
Appellant raises the following issues for our review:
1. Did the [PCRA] [c]ourt erred [sic] in applying the mandatory minimum where the factors that support the imposition of 42 Pa.C.S. § 9712.1 where [sic] not submitted to the jury[?]
2. Is 42 Pa.C.S. § 9712.1 facially invalid[?]
3. Whether the [PCRA] [c]ourt is incorrect and inaccurate in its decision that Alleyne v. [UNITED] STATES, 133 S.Ct. 2151 (2013), is not to be applied retroactively[?]
Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of
not be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)
(citations and quotation marks omitted).
B
consider whether this appeal is properly before us.
A PCRA petition, including a second or subsequent one, must be
5 The PCRA court ordered Appellant to file a Rule 1925(b) statement of errors, and he timely complied on February 24, 2014. The court filed a Rule 1925(a) opinion on March 12, 2014. See Pa.R.A.P. 1925.
-4- J-S48038-14
sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final at the conclusion of direct review by this Court or the United States Supreme Court, or at the expiration of the time for seeking such review. 42 Pa.C.S.[A.] §
jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations
and footnote omitted).
18, 2011, when his time to file a petition for writ of certiorari with the United
States Supreme Court expired. See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §
9545(b)(3). Because Appellant filed the instant petition on August 14, 2013,
it is untimely on its face, and the PCRA court lacked jurisdiction to review it
unless he pleaded and proved one of the statutory exceptions to the time-
bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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;
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J-S48038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
LAVINCE J. PATE,
Appellant No. 191 MDA 2014
Appeal from the Order January 23, 2014 in the Court of Common Pleas of Dauphin County Criminal Division at No.: CP-22-CR-0002793-2008
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 21, 2014
Appellant, Lavince J. Pate, appeals pro se from the order dismissing
his second petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
On November 19, 2009, a jury found Appellant guilty of possession
with intent to deliver a controlled substance, unlawful possession of drug
paraphernalia, and firearms not to be carried without a license. 1 His
conviction stems from a traffic stop that took place on April 4, 2008, during
which police seized crack cocaine, a digital scale, and a firearm from under
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. §§ 780-113(a)(30), (32), and 18 Pa.C.S.A. § 6106(a)(1), respectively. J-S48038-14
the front passenger seat, where Appellant had been sitting. On January 20,
2010, the trial court held a sentencing hearing and determined that
imposition of the five-year mandatory minimum sentence2 was appropriate
see also id. at
3-4, 8-9). The court sentenced Appellant to an aggregate term of not less
appeal, and this Court affirmed the judgment of sentence on October 21,
2010. (See Commonwealth v. Pate, 15 A.3d 537 (Pa. Super. 2010)
(unpublished memorandum)). Our Supreme Court denied his petition for
allowance of appeal on February 17, 2011. (See Commonwealth v. Pate,
14 A.3d 826 (Pa. 2011)).
On March 27, 2012, Appellant filed a PCRA petition, which the PCRA
court denied on August 24, 2012. Appellant appealed, and this Court
See Commonwealth
v. Pate, 82 A.3d 459 (Pa. Super. 2013) (unpublished memorandum)).
On August 14, 2013, Appellant, acting pro se, filed the instant PCRA
petition, claiming that his sentence is illegal based on the United States
Alleyne v. United States, 133 S. Ct. 2151,
2155 (2013) (holding that, to comply with dictates of Sixth Amendment,
2 See 42 Pa.C.S.A. § 9712.1.
-2- J-S48038-14
facts that increase mandatory minimum sentence are elements of offense
and must be submitted to jury and proven beyond reasonable doubt). 3 (See
PCRA Petition, 8/14/13, at 3, 7). On August 29, 2013, the PCRA court
issued notice of its intention to dismiss the PCRA petition without a hearing.
See Pa.R.Crim.P. 907(1). Appellant did not respond. On October 1, 2013,
the PCRA court dismissed the petition. However, on October 25, 2013, the
court entered a memorandum opinion stating its intention to vacate the
October 1, 2013 order, and directed the Commonwealth to file a response.4
On November 4, 2013, the court entered an order vacating the October 1,
2013 order. The Commonwealth filed a response on December 16, 2013.
On December 26, 2013, Appellant filed a supplemental PCRA petition. On
December 31, 2013, the court entered a memorandum opinion and Rule 907
3 The Alleyne Court overruled previous precedent because, prior to the decision, state legislatures were free to delegate fact-finding authority relative to mandatory minimum sentences to sentencing judges. See Alleyne, supra at 2155; see also Commonwealth v. Hanson, 82 A.3d 1023, 1039-40 (Pa. 2013). 4 It appears that the PCRA court took this action in order to consider this Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), which was filed on October 10, 2013. (See Trial Court Opinion, 12/31/13, at 2-4, 6). The Munday court considered Alleyne in the context of a direct appeal, and determined that stand because the facts necessary for imposition of the mandatory minimum sentence were not determined by the factfinder to have been proven beyond a reasonable doubt. See Munday, supra at 662, 666.
-3- J-S48038-14
notice of its intent to dismiss the petition. On January 23, 2014, the court
entered its order dismissing the PCRA petition. This timely appeal followed.5
Appellant raises the following issues for our review:
1. Did the [PCRA] [c]ourt erred [sic] in applying the mandatory minimum where the factors that support the imposition of 42 Pa.C.S. § 9712.1 where [sic] not submitted to the jury[?]
2. Is 42 Pa.C.S. § 9712.1 facially invalid[?]
3. Whether the [PCRA] [c]ourt is incorrect and inaccurate in its decision that Alleyne v. [UNITED] STATES, 133 S.Ct. 2151 (2013), is not to be applied retroactively[?]
Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of
not be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)
(citations and quotation marks omitted).
B
consider whether this appeal is properly before us.
A PCRA petition, including a second or subsequent one, must be
5 The PCRA court ordered Appellant to file a Rule 1925(b) statement of errors, and he timely complied on February 24, 2014. The court filed a Rule 1925(a) opinion on March 12, 2014. See Pa.R.A.P. 1925.
-4- J-S48038-14
sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final at the conclusion of direct review by this Court or the United States Supreme Court, or at the expiration of the time for seeking such review. 42 Pa.C.S.[A.] §
jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations
and footnote omitted).
18, 2011, when his time to file a petition for writ of certiorari with the United
States Supreme Court expired. See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §
9545(b)(3). Because Appellant filed the instant petition on August 14, 2013,
it is untimely on its face, and the PCRA court lacked jurisdiction to review it
unless he pleaded and proved one of the statutory exceptions to the time-
bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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
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(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.
Id. at § 9545(b)(1)(i)-(iii).
untimely, and no exception has been pled and proven, the petition must be
dismissed without a hearing because Pennsylvania courts are without
Commonwealth v.
Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), appeal denied, 47 A.3d 845
(Pa. 2012) (citation omitted). In addition, a PCRA petition invoking one of
these statutory exceptions must be filed within 60 days of the date the
§ 9545(b)(2).
Here, Appellant claims the benefit of the exception at 42 Pa.C.S.A. §
9545(b)(1)(iii), alleging a newly-recognized, retroactively-applied
decision in Alleyne, supra. (See 4-15).6 We
disagree.
Initially, we note that the exception set forth in section 9545(b)(1)(iii)
recognized by the Supreme Court of the United States or the Supreme Court ____________________________________________
6 The United States Supreme Court decided Alleyne on June 17, 2013, and Appellant filed the instant PCRA petition fifty-eight days later, on August 14, 2013. See 42 Pa.C.S.A. § 9545(b)(2).
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of Pennsylvania after the time period provided in this section and has been
held by that court to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(iii)
(emphasis added).
Subsection (iii) of section 9545 has two requirements. First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or th[e Pennsylvania] Supreme Court after the time provided in this
retroactively. Thus, a petitioner must prove
action has already occurred, i.e. the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.
Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011), appeal
denied, 38 A.3d 823 (Pa. 2012) (citations omitted).
In the instant case, although Appellant claims the applicability of
section 9545(b)(1)(iii) based on Alleyne, the United States Supreme Court
has not held that Alleyne applies retroactively to cases on collateral review.
that there is a new constitutional right
and that the right has been held by that court to appl
Garcia, supra at 1063 (citations and quotation marks omitted).
Accordingly, Appellant has not met his burden of proving his untimely
time-bar. See Jones, supra at 17. The PCRA court properly dismissed
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-bar
pleaded or proven.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/21/2014
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