J-S35044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS P. RICHARD, SR. : : Appellant : No. 327 WDA 2017
Appeal from the PCRA Order January 17, 2017 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003607-1999
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 9, 2017
Thomas P. Richard, Sr. (“Appellant”) appeals from the order entered in
the Court of Common Pleas of Westmoreland County dismissing his sixth
petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA Court provides an apt procedural history of the case at bar
as follows:
A jury in the Court of Common Pleas of Westmoreland County convicted [Appellant] on July 17, 2000, of rape and related offenses involving an incident with his daughter, [for] which he was sentenced by [the court] to an aggregate term of imprisonment of not less than twenty-five and a half nor more than fifty-one years. The twenty-five and a half year term was a mandatory minimum required at the time of sentencing. [Appellant’s] conviction and judgment of sentence were affirmed ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S35044-17
by the Superior Court of Pennsylvania on direct appeal. See Commonweatlh v. Richard, 803 A.2d 796 (Pa. Super. 2002) (unpublished memorandum), appeal denied 806 A.2d 860 (Pa. 2002).
After five unsuccessful attempts to obtain post conviction collateral relief, on March 18, 2016, petitioner filed his sixth [PCRA] petition, pro se….
PCRA Court Opinion and Notice of Intent to Dismiss, filed 12/26/17/, at 1.
On January 17, 2017, the PCRA court entered an order denying Appellant’s
request for PCRA relief. This timely appeal followed.
On appeal, Appellant presents the following questions for this Court’s
review:
1. Did the court below err by not finding that Montgomery v. Louisianna, 577 U.S. ____ (2016) and/or Welch v. U.S., 578 U.S. ____ (2016) fully controlled as to invoking the time bar exception at § 9545(b)(1)(iii), as the binding and mandating legal principle, and as the necessary adjunct to afford a fortiori to give full retroactive effect to Com[monwealth] v. Wolfe, 106 A.3d 600 (Pa.Super. 2014) and Com[monwealth] v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc)?
2. Is the Appellant’s sentence [now] illegal, where the terms of such punishment are no longer authorized or enforceable by a valid statute; and would the failure to correct render an absurd and unjust result of indefinitely incarcerating individuals under [now] voided laws, where such drastic loss of Liberty [sic] and consequences thereof, constitute the quintessential [sic] miscarriage of justice?
Appellant’s brief at 4.
Our standard of review of an order denying relief under the PCRA
requires us to determine whether the decision of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014). “The
-2- J-S35044-17
PCRA court's findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
Initially, we address whether Appellant's petition is properly before us.
Any PCRA petition, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final.” 42 Pa.C.S. §
9545(b)(1). This time requirement is mandatory and jurisdictional in
nature, and a court may not ignore it in order to reach the merits of the
petition. Commonwealth v. Hernandez, 79 A.3d 649, 651–652 (Pa.
Super. 2013) (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.
2000)). “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.” 42 Pa.C.S. § 9545(b)(3).
In the case sub judice, Appellant's judgment of sentence became final
on November 25, 2002, upon the expiration of the ninety day period to seek
review with the United States Supreme Court after the Pennsylvania
Supreme Court denied his petition for allowance of appeal on August 27,
2002. 42 Pa.C.S. § 9545(b)(3). Appellant filed the instant PCRA petition,
his sixth, on March 17, 2016, nearly fourteen years after his judgment of
sentence became final. Accordingly, his petition for PCRA relief is patently
untimely.
-3- J-S35044-17
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.1 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA's one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,
1167 (Pa. Super. 2001).
____________________________________________
1 The exceptions to the timeliness requirement are:
(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
(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.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
-4- J-S35044-17
Here, Appellant essentially claims that his sentence was illegal in light
of the holdings in Alleyne v. U.S., ___U.S.___, 133 S.Ct. 2151, 2163
(2013),2 and Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718
(2016). After review, we discern no merit to Appellant’s claim.
In Alleyne, the United States Supreme Court held that any facts that
increase a mandatory minimum sentence must be submitted to the jury and
found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155, 2163.
However, the Pennsylvania Supreme Court held that Alleyne does not apply
retroactively to collateral attacks on a petitioner's mandatory minimum
sentence. Commonwealth v.
Free access — add to your briefcase to read the full text and ask questions with AI
J-S35044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS P. RICHARD, SR. : : Appellant : No. 327 WDA 2017
Appeal from the PCRA Order January 17, 2017 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003607-1999
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 9, 2017
Thomas P. Richard, Sr. (“Appellant”) appeals from the order entered in
the Court of Common Pleas of Westmoreland County dismissing his sixth
petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA Court provides an apt procedural history of the case at bar
as follows:
A jury in the Court of Common Pleas of Westmoreland County convicted [Appellant] on July 17, 2000, of rape and related offenses involving an incident with his daughter, [for] which he was sentenced by [the court] to an aggregate term of imprisonment of not less than twenty-five and a half nor more than fifty-one years. The twenty-five and a half year term was a mandatory minimum required at the time of sentencing. [Appellant’s] conviction and judgment of sentence were affirmed ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S35044-17
by the Superior Court of Pennsylvania on direct appeal. See Commonweatlh v. Richard, 803 A.2d 796 (Pa. Super. 2002) (unpublished memorandum), appeal denied 806 A.2d 860 (Pa. 2002).
After five unsuccessful attempts to obtain post conviction collateral relief, on March 18, 2016, petitioner filed his sixth [PCRA] petition, pro se….
PCRA Court Opinion and Notice of Intent to Dismiss, filed 12/26/17/, at 1.
On January 17, 2017, the PCRA court entered an order denying Appellant’s
request for PCRA relief. This timely appeal followed.
On appeal, Appellant presents the following questions for this Court’s
review:
1. Did the court below err by not finding that Montgomery v. Louisianna, 577 U.S. ____ (2016) and/or Welch v. U.S., 578 U.S. ____ (2016) fully controlled as to invoking the time bar exception at § 9545(b)(1)(iii), as the binding and mandating legal principle, and as the necessary adjunct to afford a fortiori to give full retroactive effect to Com[monwealth] v. Wolfe, 106 A.3d 600 (Pa.Super. 2014) and Com[monwealth] v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc)?
2. Is the Appellant’s sentence [now] illegal, where the terms of such punishment are no longer authorized or enforceable by a valid statute; and would the failure to correct render an absurd and unjust result of indefinitely incarcerating individuals under [now] voided laws, where such drastic loss of Liberty [sic] and consequences thereof, constitute the quintessential [sic] miscarriage of justice?
Appellant’s brief at 4.
Our standard of review of an order denying relief under the PCRA
requires us to determine whether the decision of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014). “The
-2- J-S35044-17
PCRA court's findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
Initially, we address whether Appellant's petition is properly before us.
Any PCRA petition, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final.” 42 Pa.C.S. §
9545(b)(1). This time requirement is mandatory and jurisdictional in
nature, and a court may not ignore it in order to reach the merits of the
petition. Commonwealth v. Hernandez, 79 A.3d 649, 651–652 (Pa.
Super. 2013) (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.
2000)). “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.” 42 Pa.C.S. § 9545(b)(3).
In the case sub judice, Appellant's judgment of sentence became final
on November 25, 2002, upon the expiration of the ninety day period to seek
review with the United States Supreme Court after the Pennsylvania
Supreme Court denied his petition for allowance of appeal on August 27,
2002. 42 Pa.C.S. § 9545(b)(3). Appellant filed the instant PCRA petition,
his sixth, on March 17, 2016, nearly fourteen years after his judgment of
sentence became final. Accordingly, his petition for PCRA relief is patently
untimely.
-3- J-S35044-17
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.1 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA's one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,
1167 (Pa. Super. 2001).
____________________________________________
1 The exceptions to the timeliness requirement are:
(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
(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.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
-4- J-S35044-17
Here, Appellant essentially claims that his sentence was illegal in light
of the holdings in Alleyne v. U.S., ___U.S.___, 133 S.Ct. 2151, 2163
(2013),2 and Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718
(2016). After review, we discern no merit to Appellant’s claim.
In Alleyne, the United States Supreme Court held that any facts that
increase a mandatory minimum sentence must be submitted to the jury and
found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155, 2163.
However, the Pennsylvania Supreme Court held that Alleyne does not apply
retroactively to collateral attacks on a petitioner's mandatory minimum
sentence. Commonwealth v. Washington, 142 A.3d 810, 820 (Pa.
2016).3
Moreover, Montgomery stated that Miller v. Alabama, 132 S.Ct.
2455 (2012), in which the United States Supreme Court held that it is
unconstitutional to impose a mandatory sentence of life imprisonment
without the possibility of parole on juvenile offenders, applies retroactively
to cases on collateral review. Appellant, however, was neither a juvenile at ____________________________________________
2 This Court’s decision in Wolfe, which Appellant cites in his statement of questions presented on appeal, relied on Alleyne and its holding that “facts that increase mandatory minimum sentences must be submitted to the jury” to invalidate the mandatory minimum sentence applied to each of the defendant’s IDSI charges. Wolfe, 106 A.3d at 802. 3 Moreover, to the extent Appellant predicates his retroactivity argument upon Wolfe, we find Wolfe inapposite, as it involved a direct appeal from a judgment of sentence that postdated the Alleyne decision.
-5- J-S35044-17
the time of his crime nor was he sentenced to a mandatory term of life
without the possibility of parole. Thus, we agree with the PCRA court that
Appellant filed a patently untimely sixth PCRA petition presenting no claim
overcoming the PCRA’s jurisdictional time bar. Accordingly we affirm the
order denying Appellant's PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/9/2017
-6-