Com. v. Ross, A.

• Court: Superior Court of Pennsylvania
• Decided: June 28, 2016
• Docket: 3603 EDA 2015
• Status: Unpublished

Opinion

J-S40042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ANTHONY ROSS, : : Appellant : No. 3603 EDA 2015

Appeal from the PCRA Order November 2, 2015 in the Court of Common Pleas of Delaware County, Criminal Division, No(s): CP-23-CR-0005393-2005

BEFORE: BOWES, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 28, 2016

Anthony Ross (“Ross”) appeals, pro se, from the Order dismissing his

second Post Conviction Relief Act (“PCRA”) Petition. See 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

Ross was tried and convicted of four counts of robbery and one count

of criminal conspiracy. The trial court sentenced Ross to an aggregate

prison term of 15 to 60 years. This Court affirmed the judgment of

sentence. See Commonwealth v. Ross, 963 A.2d 573 (Pa. Super. 2008)

(unpublished memorandum).

Ross filed his first PCRA Petition on December 29, 2008. The PCRA

court dismissed the Petition. This Court affirmed the dismissal. See

Commonwealth v. Ross, 6 A.3d 567 (Pa. Super. 2010) (unpublished

memorandum). J-S40042-16

On August 13, 2015, Ross filed the instant pro se PCRA Petition, his

second. The PCRA court issued a Pa.R.Crim.P. 907 Notice of Intent to

Dismiss his Petition without a hearing. Ross filed a Response to the Rule

907 Notice. The PCRA court dismissed the Petition, after which Ross filed a

timely pro se Notice of appeal.

Ross presents the following claims for our review:

1) Whether the mandatory minimum sentence imposed herein is illegal and should be vacated since the provisions that were applied were rendered unconstitutional[?]

2) Whether a challenge to a sentence pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013) - implicated the legality of the sentence and is therefore non-waivable[?]

Brief for Appellant at 2.

Before we address Ross’s claims, we first must determine whether

Ross timely filed his PCRA Petition. All PCRA petitions must be filed within

one year of the date on which defendant’s judgment of sentence became

final. 42 Pa.C.S.A. § 9545(b)(1). “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 review.” Id. § 9545(b)(3).

In this case, Ross’s judgment of sentence became final on October 20,

2008, when the time to file an appeal to the Supreme Court of Pennsylvania

expired. See Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa. Super.

-2- J-S40042-16

2011). Thus, Ross had until October 20, 2009, to file a timely PCRA Petition.

Ross’s Petition, filed on August 13, 2015, is facially untimely.

Although a petition must be filed within one year, there are three

exceptions that may excuse untimeliness:

(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 of the constitution of 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 State 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.A. § 9545(b)(1). When invoking one of the exceptions, the

Petition must be filed within sixty days of the date the claim could have been

presented. Id. § 9545(b)(2).

Ross invokes the new constitutional right exception and argues that his

sentence was illegal based on the United States Supreme Court’s decision in

Alleyne. Brief for Appellant 5-6 (unnumbered).

Our review discloses that Ross failed to file his Petition within 60 days

of the date on which the Supreme Court issued the Alleyne decision. See

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (stating

that defendants need to file their petitions within 60 days from the date of

the court’s decision to fulfill the requirement). Additionally, Alleyne has not

-3- J-S40042-16

been applied retroactively to cases where, as here, the judgment of

sentence was final. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.

Super. 2014) (stating that neither the Pennsylvania 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 has become final);

id. (stating that while Alleyne raises a legality of sentence challenge, courts

cannot review a legality claim where is does not have jurisdiction); see also

Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015). Thus,

Ross’s Petition fails to satisfy the timeliness exception under section

9545(b)(1)(iii).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/28/2016

-4-