J-S12040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JAMES W. ROSS, : : Appellant : No. 1192 MDA 2016
Appeal from the PCRA Order May 20, 2016 in the Court of Common Pleas of Dauphin County, Criminal Division, No(s): CP-22-CR-0000996-1997
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2017
James W. Ross (“Ross”) appeals, pro se, from the Order dismissing his
second Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In January 1998, Ross was convicted of rape of a child, incest,
involuntary deviate sexual intercourse with a child, aggravated indecent
assault – complainant less than 13 years of age, indecent assault –
complainant less than 13 years of age, and corruption of minors. 1 The trial
court sentenced Ross to an aggregate term of 36 to 180 years in prison.
This Court affirmed Ross’s judgment of sentence on May 21, 1999. See
Commonwealth v. Ross, 739 A.2d 591 (Pa. Super. 1999) (unpublished
memorandum).
1 18 Pa.C.S.A. §§ 3121(c), 4302, 3123(b), 3125(a)(7), 3126(a)(7), 6301. J-S12040-17
Ross filed his first pro se PCRA Petition in May 2000. The PCRA court
appointed Ross counsel, who subsequently filed a Petition to Withdraw and a
Turner/Finley2 “no-merit” letter. The PCRA court dismissed the Petition.
This Court affirmed the dismissal, and the Pennsylvania Supreme Court
denied allowance of appeal. See Commonwealth v. Ross, 792 A.2d 618
(Pa. Super. 2001), appeal denied, 798 A.2d 1289 (Pa. 2002).
Ross filed the instant pro se “Motion for Post Conviction Collateral
Relief” on February 26, 2016. The PCRA court entered a Pa.R.Crim.P. 907
Notice of Intent to Dismiss, to which Ross, pro se, filed a Response. The
PCRA court dismissed Ross’s second Petition as untimely filed. Ross filed a
timely Notice of Appeal.3 The PCRA court subsequently filed a Statement in
Lieu of a Pa.R.A.P. 1925(a) Opinion, relying on its May 2, 2016 Opinion.
On appeal, Ross raises the following questions for our review:
I. Does the [PCRA] court’s dismissal of the properly[-]filed PCRA Petition constitute a violation of [Ross’s] right to due process and equal protection of the law[,] as guaranteed by the Pennsylvania and United States Constitutions?
II. Did the [PCRA] court err in dismissing the properly[-]filed PCRA Petition without conducting an evidentiary hearing?
Brief for Appellant at 6 (issues renumbered, some capitalization omitted).
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 3 The PCRA court did not order Ross to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal.
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level. This review is limited to the findings of the PCRA court and the evidence of the 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).
Initially, under the PCRA, 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.A. § 9545(b)(1) (emphasis added). 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). Additionally, “[i]f the petition is determined to
be untimely, and no exception has been pled and proven, the petition must
be dismissed without a hearing because Pennsylvania courts are without
jurisdiction to consider the merits of the petition.” Commonwealth v.
Perrin, 947 A.2d 1284, 1285 (Pa. Super. 2008); see also Commonwealth
v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (stating that a court may not
address the merits of the issues raised if a PCRA petition is not timely filed).
Ross concedes that his Petition is facially untimely, as he filed the
Petition more than 15 years after his judgment of sentence became final.
Brief for Appellant at 8-9.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
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under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
We will address Ross’s claims together. In his first claim, Ross points
to this Court’s decision in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super.
2015)4 as a newly-discovered fact, and asserts that his sentence is illegal
based upon Alleyne because he was subject to a mandatory minimum
sentence under 42 Pa.C.S.A. § 9718. Brief for Appellant at 9-12, 17. In his
second claim, Ross contends that the trial court erred by dismissing his
Petition without conducting an evidentiary hearing because his Petition
alleged new facts that, if true, would entitle him to relief. Id. at 18. Ross
also argues that “an offender whose judgment of sentence becomes final
prior to the Alleyne decision is subject to unequal treatment … without a
rational basis.” Id. at 18-19.
Initially, judicial decisions cannot “be considered newly-discovered
facts which could invoke the protections afforded by section 9545(b)(1)(ii).”
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013); see also
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (stating that
4 In Ruiz, this Court held that a petitioner is entitled to retroactive application of the United States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that any fact that increases the sentence for a given crime must be submitted to the jury and found beyond a reasonable doubt), where he raises the claim in a timely PCRA petition, and his judgment of sentence was not final prior to the date of the Alleyne decision. Ruiz, 131 A.3d at 59-60.
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“subsequent decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii) of the PCRA.”). Additionally, the Ruiz decision does not
support Ross’s position, as his Petition is facially untimely, and his judgment
of sentence became final in 1999, well before the date of the Alleyne
decision. See Ruiz, 131 A.3d at 59-60; see also Commonwealth v.
Washington,
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J-S12040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JAMES W. ROSS, : : Appellant : No. 1192 MDA 2016
Appeal from the PCRA Order May 20, 2016 in the Court of Common Pleas of Dauphin County, Criminal Division, No(s): CP-22-CR-0000996-1997
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2017
James W. Ross (“Ross”) appeals, pro se, from the Order dismissing his
second Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In January 1998, Ross was convicted of rape of a child, incest,
involuntary deviate sexual intercourse with a child, aggravated indecent
assault – complainant less than 13 years of age, indecent assault –
complainant less than 13 years of age, and corruption of minors. 1 The trial
court sentenced Ross to an aggregate term of 36 to 180 years in prison.
This Court affirmed Ross’s judgment of sentence on May 21, 1999. See
Commonwealth v. Ross, 739 A.2d 591 (Pa. Super. 1999) (unpublished
memorandum).
1 18 Pa.C.S.A. §§ 3121(c), 4302, 3123(b), 3125(a)(7), 3126(a)(7), 6301. J-S12040-17
Ross filed his first pro se PCRA Petition in May 2000. The PCRA court
appointed Ross counsel, who subsequently filed a Petition to Withdraw and a
Turner/Finley2 “no-merit” letter. The PCRA court dismissed the Petition.
This Court affirmed the dismissal, and the Pennsylvania Supreme Court
denied allowance of appeal. See Commonwealth v. Ross, 792 A.2d 618
(Pa. Super. 2001), appeal denied, 798 A.2d 1289 (Pa. 2002).
Ross filed the instant pro se “Motion for Post Conviction Collateral
Relief” on February 26, 2016. The PCRA court entered a Pa.R.Crim.P. 907
Notice of Intent to Dismiss, to which Ross, pro se, filed a Response. The
PCRA court dismissed Ross’s second Petition as untimely filed. Ross filed a
timely Notice of Appeal.3 The PCRA court subsequently filed a Statement in
Lieu of a Pa.R.A.P. 1925(a) Opinion, relying on its May 2, 2016 Opinion.
On appeal, Ross raises the following questions for our review:
I. Does the [PCRA] court’s dismissal of the properly[-]filed PCRA Petition constitute a violation of [Ross’s] right to due process and equal protection of the law[,] as guaranteed by the Pennsylvania and United States Constitutions?
II. Did the [PCRA] court err in dismissing the properly[-]filed PCRA Petition without conducting an evidentiary hearing?
Brief for Appellant at 6 (issues renumbered, some capitalization omitted).
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 3 The PCRA court did not order Ross to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal.
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level. This review is limited to the findings of the PCRA court and the evidence of the 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).
Initially, under the PCRA, 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.A. § 9545(b)(1) (emphasis added). 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). Additionally, “[i]f the petition is determined to
be untimely, and no exception has been pled and proven, the petition must
be dismissed without a hearing because Pennsylvania courts are without
jurisdiction to consider the merits of the petition.” Commonwealth v.
Perrin, 947 A.2d 1284, 1285 (Pa. Super. 2008); see also Commonwealth
v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (stating that a court may not
address the merits of the issues raised if a PCRA petition is not timely filed).
Ross concedes that his Petition is facially untimely, as he filed the
Petition more than 15 years after his judgment of sentence became final.
Brief for Appellant at 8-9.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
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under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
We will address Ross’s claims together. In his first claim, Ross points
to this Court’s decision in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super.
2015)4 as a newly-discovered fact, and asserts that his sentence is illegal
based upon Alleyne because he was subject to a mandatory minimum
sentence under 42 Pa.C.S.A. § 9718. Brief for Appellant at 9-12, 17. In his
second claim, Ross contends that the trial court erred by dismissing his
Petition without conducting an evidentiary hearing because his Petition
alleged new facts that, if true, would entitle him to relief. Id. at 18. Ross
also argues that “an offender whose judgment of sentence becomes final
prior to the Alleyne decision is subject to unequal treatment … without a
rational basis.” Id. at 18-19.
Initially, judicial decisions cannot “be considered newly-discovered
facts which could invoke the protections afforded by section 9545(b)(1)(ii).”
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013); see also
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (stating that
4 In Ruiz, this Court held that a petitioner is entitled to retroactive application of the United States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that any fact that increases the sentence for a given crime must be submitted to the jury and found beyond a reasonable doubt), where he raises the claim in a timely PCRA petition, and his judgment of sentence was not final prior to the date of the Alleyne decision. Ruiz, 131 A.3d at 59-60.
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“subsequent decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii) of the PCRA.”). Additionally, the Ruiz decision does not
support Ross’s position, as his Petition is facially untimely, and his judgment
of sentence became final in 1999, well before the date of the Alleyne
decision. See Ruiz, 131 A.3d at 59-60; see also 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) (stating
that neither the United States Supreme Court nor the Pennsylvania Supreme
Court has held that Alleyne applies retroactively where the judgment of
sentence has become final, and that “though not technically waivable, a
legality of sentence claim may nevertheless be lost should it be raised in an
untimely PCRA petition for which no time-bar exception applies” (citation,
brackets, and ellipses omitted)). Therefore, Ross has failed to plead and
prove the newly-discovered fact exception to the PCRA’s timeliness
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requirement.5
Because Ross failed to successfully invoke any of the exceptions
necessary to circumvent the PCRA’s timeliness requirement, the PCRA court
properly dismissed the Petition without a hearing. See Perrin, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/13/2017
5 Although Ross does not specifically cite the newly-recognized constitutional right exception at section 9545(b)(1)(iii), he asserts that he is entitled to retroactive application of Alleyne’s “new substantive rule” because he was subject to an illegal mandatory minimum sentence. Brief for Appellant at 12-15. However, Ross did not file the instant Petition within sixty days of the date that Alleyne was decided. See 42 Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to [a newly]-recognized constitutional right, this Court has held that the sixty-day period begins to run upon the date of the underlying judicial decision.”). Additionally, the rule in Alleyne does not apply retroactively where the judgment of sentence is final. See Washington, supra; Miller, supra. Thus, Ross has failed to plead and prove the newly-recognized constitutional right exception at section 9545(b)(1)(iii) based on the Supreme Court’s decision in Alleyne.
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