Com. v. Pate, L.

• Court: Superior Court of Pennsylvania
• Decided: June 26, 2015
• Docket: 1017 MDA 2014
• Status: Unpublished

Opinion

J-S31011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1017 MDA 2014

Appeal from the PCRA Order Entered May 15, 2014 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001922-2008

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 26, 2015

Lavince J. Pate (Appellant) appeals pro se from the order denying his

petition for post-conviction relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.

The pertinent facts and procedural history are as follows. Appellant

was charged with possession with intent to deliver,1 to which he pleaded

guilty on July 16, 2008. On December 16, 2008, the trial court imposed a

mandatory minimum sentence of 24 to 48 months’ incarceration, pursuant

to the drug-free school zones statute.2 Appellant did not seek review of his

judgment of sentence with this Court. Consequently, his judgment of

____________________________________________

1 35 Pa.C.S. § 780-113(A)(30). 2 18 Pa.C.S. § 6317. J-S31011-15

sentence became final on January 15, 2009. On August 7, 2013, Appellant

filed a pro se PCRA petition. The PCRA court appointed counsel, who on

March 18, 2014, filed a Turner/Finley3 petition to withdraw.4 On April 8,

2014, the PCRA court filed a notice of its intent to dismiss Appellant’s PCRA

petition and grant counsel’s petition to withdraw, pursuant to Pa.R.Crim.P.

907, to which Appellant did not respond. The PCRA court dismissed

Appellant’s petition for lack of jurisdiction on May 15, 2014. Appellant now

files this timely appeal challenging, inter alia, the PCRA court’s decision to

dismiss.

Our standard of review for an order denying PCRA relief is well-settled:

This Court’s standard of review regarding a PCRA court’s order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 4 We do not here consider the adequacy of PCRA counsel’s withdraw, as the issue is not before us. See Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). Here, as in Pitts, “[n]either party raised the issue of the adequacy of PCRA counsel's no-merit letter, the Commonwealth was not afforded the opportunity to provide advocacy on the issue, and the Superior Court should not have resolved the appeal on an issue not before it.” Id. at 880.

-2- J-S31011-15

Appellant presents several claims for our review; however, we must

first determine whether we have jurisdiction. Neither an appellate court nor

the PCRA court has jurisdiction over an untimely PCRA petition.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). “Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Id.

For a PCRA petition to be timely, it must have been filed within one

year of the final judgment.5 A judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.6 However, this one year period is tolled if the

petitioner alleges and proves that there is (i) governmental interference, (ii)

facts which were unknown and unknowable with the exercise of due

diligence, or (iii) the claim is a new, retroactive, constitutional right. 7

To be timely, Appellant’s PCRA petition must have been filed by

January 15, 2010; however, Appellant’s petition was filed on August 7,

2013. The petition is patently untimely and, therefore, Appellant must meet

5 42 Pa.C.S. § 9545. 6 42 Pa.C.S. § 9545(b)(3). 7 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

-3- J-S31011-15

one of the exceptions in order for this Court to consider the merits of the

arguments.

Relying on general principles, Appellant argues that he meets the

retroactive constitutional right exception to the filing deadline. First, he

notes that an unconstitutional statute is “inoperative as though it had never

been passed.” Glen-Gery Corp. v. Zoning Hrg. Bd. of Dover Tp., 907

A.2d 1033, 1037 (Pa. 2006). Second, Appellant references that his guilty

plea subjected him to a mandatory minimum sentence pursuant to the drug-

free school zones statute.8 In Commonwealth v. Bizzel, 107 A.3d 102

(Pa. Super. 2014), this Court held that section 6317 is unconstitutional

pursuant to the United States Supreme Court's decision in Alleyne.9

However, the exception requires that a newly recognized constitutional

right be explicitly acknowledged to retroactively apply.10 This sentiment

comports with our long established rule that remedial law, without more,

“must always be construed as operating on future cases alone.”

8 18 Pa.C.S. § 6317. 9 Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013) (establishing that facts, aside from prior convictions, giving rise to a mandatory minimum sentence, must be proved to a fact-finder beyond a reasonable doubt). 10 The exception states: “[T]he 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) (emphasis added).

-4- J-S31011-15

Lambertson v. Hogan, 2 Pa. 22, 25 (1845). “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.”

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

Additionally, Bizzel does not explicitly state that it is to be retroactively

applied.

It is true that a challenge to the legality of the sentence may be raised

sua sponte and may be entertained, but only so long as the reviewing court

has jurisdiction. Commonwealth v. Robinson, 931 A.2d 15, 19–20 (Pa.

Super. 2007) (en banc). As noted above, a court lacks jurisdiction when a

PCRA petition is untimely and no exception applies. Therefore, we lack the

authority to consider the merits of the PCRA petition sua sponte, as

Appellant pleads we do.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/26/2015

-5-