Com. v. Pecal, D.

• Court: Superior Court of Pennsylvania
• Decided: January 11, 2019
• Docket: 702 MDA 2018
• Status: Unpublished

Opinion

J-A28045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONTELL ZHEVON PECAL, : : Appellant : No. 702 MDA 2018

Appeal from the PCRA Order April 16, 2018 in the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002529-2011

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: JANUARY 11, 2019

Dontell Zhevon Pecal (“Pecal”) appeals, pro se, from the Order

dismissing his first Petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Following a jury trial, Pecal was convicted of various crimes related to

his possession of marijuana, cocaine, ecstasy, and a stolen firearm. The trial

court sentenced Pecal to an aggregate term of eleven to twenty years in

prison, followed by one year of probation. On April 1, 2013, this Court

affirmed Pecal’s judgment of sentence. See Commonwealth v. Pecal, 75

A.3d 540 (Pa. Super. 2013) (unpublished memorandum). Pecal did not file a

Petition for allowance of appeal with the Pennsylvania Supreme Court.

On June 12, 2017, Pecal filed a pro se PCRA Petition, his first, arguing

that his appellate counsel was ineffective and his sentence was excessive. The

PCRA court appointed counsel, who later filed a Petition to withdraw and “no- J-A28045-18

merit” letter pursuant to Turner/Finley.1 On March 20, 2018, the PCRA court

granted counsel’s Petition to Withdraw, and filed a Pa.R.Crim.P. 907 Notice of

Intent to Dismiss. The PCRA court subsequently dismissed Pecal’s Petition.

Pecal filed a Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement.

On appeal, Pecal raises the following questions for our review:

1. Did [the] PCRA [c]ourt err in dismissing [Pecal’s] PCRA Petition under auspice of waiver to challenge illegal sentence predicated upon PCRA counsel’s no-merit letter who asserted and misidentified [Pecal’s] core issue of excessive illegal sentence?

2. Did [the] PCRA [c]ourt impute the wrong diligence standard upon [Pecal,] where [Pecal’s] previous lawyer failed to notify him that [the] Superior Court denied his direct appeal, but moreover, prior counsel[’s] utter failure in seeking further review in [the] [Pennsylvania] Supreme Court[,] resulting in complete abandonment of [Pecal] during a critical process where [Pecal] has a right of appeal in challenging his illegal excessive sentence?

Brief for Appellant at 7.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Initially, we note that Pecal failed to timely file his Rule 1925(b) Concise

Statement. See Pa.R.A.P. 1925(b)(2). Thus, Pecal’s claims are waived. See

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).

Nevertheless, even if we addressed Pecal’s appeal, we would conclude

that the PCRA court properly held that it did not have jurisdiction over the

PCRA Petition. Under the PCRA, any PCRA petition “shall be filed within one

year of the date the judgment becomes final.” 42 Pa.C.S.A. § 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 Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

Here, Pecal’s judgment became final on May 1, 2013, when the time to

seek review in our Supreme Court expired. See Pa.R.A.P. 1113(a) (requiring

that a petition for allowance of appeal be filed within 30 days after the entry

of the order sought to be reviewed). Therefore, Pecal’s Petition, which was

filed on June 12, 2017, is facially untimely under the PCRA. See 42 Pa.C.S.A.

§ 9545(b).

However, Pennsylvania courts may consider an untimely petition if the

petitioner can explicitly plead and prove one of three exceptions set forth at

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42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Any PCRA Petition invoking one of the

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” Id. § 9545(b)(2).

Pecal purports to invoke the newly-recognized constitutional rule

exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), alleging that his sentence is illegal

as a result of the United States Supreme Court’s decision in Alleyne v. United

States, 570 U.S. 99 (2013). See Brief for Appellant at 7-10. However,

Alleyne was decided on June 17, 2013. Pecal filed his PCRA Petition on June

12, 2017, well over sixty days after the date the claim could have been

presented. See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super.

2007) (stating that “[w]ith regard to [the newly-]recognized constitutional

right, this Court has held that the sixty-day period begins to run upon the date

of the underlying judicial decision.”).

Further, even if Pecal had timely invoked the exception, Alleyne does

not apply retroactively where, as here, the judgment of sentence is final. See

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

that “Alleyne does not apply retroactively to cases pending on collateral

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

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(stating that while Alleyne claims go to the legality of the sentence, a court

cannot review a legality claim where it does not have jurisdiction).2

Based upon the foregoing, the PCRA court properly dismissed Pecal’s

first PCRA Petition as untimely filed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/11/2019

2 Pecal also claims that his direct appeal counsel was ineffective. See Brief for Appellant at 7-8, 11. However, we note “that allegations of ineffective assistance of counsel will not overcome the jurisdictional timeliness requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

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