J-S77043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
SHAWN A. ROSS,
Appellant No. 120 MDA 2016
Appeal from the PCRA Order December 21, 2015 in the Court of Common Pleas of Berks County Criminal Division at No.: CP-06-CR-0004498-1997
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 14, 2016
Appellant, Shawn A. Ross, appeals pro se from the order denying his
pro se petition for habeas corpus relief, properly treated as a sixth petition
under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546 (PCRA) and
dismissed by the PCRA court as untimely. Appellant claims he received an
illegal sentence. We affirm.
A jury convicted Appellant of murder of the first degree and related
offenses, on August 13, 1998.1 The next day the court sentenced him to life
imprisonment plus a term of not less than nine and a half nor more than ____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 The jury convicted Appellant of murder of the first degree, two counts of aggravated assault, reckless endangerment, firearms not to be carried without a license, and possessing an instrument of crime. (See N.T. Trial, 8/13/98, at 393). J-S77043-16
nineteen years of incarceration. This Court affirmed the judgment of
sentence on November 17, 1999, and on May 25, 2000, our Supreme Court
denied allowance of appeal. (See Commonwealth v. Ross, 748 A.2d 1254
(Pa. Super. 1999) (unpublished memorandum), appeal denied, 758 A.2d
1198 (Pa. 2000)). Appellant did not petition the United States Supreme
Court for a writ of certiorari.
In this sixth petition for post-conviction relief, filed October 2, 2015,
Appellant argues chiefly that his sentence is unconstitutional and therefore
illegal, citing, inter alia, Alleyne v. United States, 133 S. Ct. 2151 (2013).2
(See Appellant’s Brief, at 9-10).
The PCRA court dismissed Appellant’s petition, reasoning in pertinent
part that under Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super.
2015), Alleyne did not apply retroactively on post-conviction review. (See
PCRA Court Opinion, 3/16/16, at 3). Appellant timely appealed.3
He presents three questions for our review:
I. Whether the [PCRA] court abused its discretion and/or committed an error of law when it refused to correct an ____________________________________________
2 Alleyne decided that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, supra at 2155 (citations omitted). From this premise the High Court concluded that judicial fact finding that increases the mandatory minimum sentence for a crime is not permissible under the Sixth Amendment, overruling Harris v. United States, 536 U.S. 545 (2002). 3 Appellant filed a timely statement of errors. The PCRA court filed an opinion on March 16, 2016. See Pa.R.A.P. 1925.
-2- J-S77043-16
unconstitutional sentencing statue [sic] that is now void ab initio?
II. Whether the Appellant has an equal protection right under the Fourteenth Amendment of the United States Constitution to a re-sentencing hearing just like those prisoner’s [sic] who [sic] sentences were vacated based upon unconstitutional statues [sic]?
III. Whether the Writ of Habeas Corpus remains an available remedy under Pennsylvania Constitution and can the PCRA statue [sic] serve as a bar to redress of those claims when the PCRA offers no remedy due to a lack of jurisdiction?
(Appellant’s Brief, at 4).
Our standard of review for an order denying PCRA relief is well-settled:
We review a PCRA court’s order to determine whether it 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. See Commonwealth
v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).
However, a petition must be timely before the PCRA court can review
the merits of the petitioner’s claim. “[I]f a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). The PCRA
provides that “[a]ny petition under this subchapter, 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).
-3- J-S77043-16
Here, as noted, Appellant’s judgment of sentence became final on
August 23, 2000, ninety days after May 25, 2000, when the Pennsylvania
Supreme Court denied leave to appeal and Appellant did not file a petition
for a writ of certiorari with the United States Supreme Court. See
U.S.Sup.Ct.R. 13. Therefore, Appellant had one year, until August 23, 2001
to file a timely PCRA petition.
Appellant cannot circumvent the time constraints of the PCRA by the
expedient of labeling his petition as a request for a writ of habeas corpus.
The remedy of habeas corpus is subsumed in the PCRA. “The action
established in this subchapter shall be the sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose that exist when this subchapter takes effect,
including habeas corpus and coram nobis.” 42 Pa.C.S.A. § 9542
(emphases added).
Because Appellant did not file his current petition until October 2,
2015, over fifteen years after his judgment of sentence became final, it is
untimely on its face. Thus, he had to plead and prove that his claim falls
under one of the exceptions at section 9545(b) to establish jurisdiction for a
merit review. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully proves that: (i) the failure to raise
the claim previously was the result of interference by government officials
-4- J-S77043-16
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. See id.
Furthermore, a petitioner who wishes to invoke any of the above
exceptions must file the petition “within [sixty] days of the date the claim
could have been presented.” Id. at § 9545(b)(2). The Pennsylvania
Supreme Court has repeatedly stated that it is an appellant’s burden to
plead and prove that one of the above-enumerated exceptions applies. See,
e.g., Commonwealth v.
Free access — add to your briefcase to read the full text and ask questions with AI
J-S77043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
SHAWN A. ROSS,
Appellant No. 120 MDA 2016
Appeal from the PCRA Order December 21, 2015 in the Court of Common Pleas of Berks County Criminal Division at No.: CP-06-CR-0004498-1997
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 14, 2016
Appellant, Shawn A. Ross, appeals pro se from the order denying his
pro se petition for habeas corpus relief, properly treated as a sixth petition
under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546 (PCRA) and
dismissed by the PCRA court as untimely. Appellant claims he received an
illegal sentence. We affirm.
A jury convicted Appellant of murder of the first degree and related
offenses, on August 13, 1998.1 The next day the court sentenced him to life
imprisonment plus a term of not less than nine and a half nor more than ____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 The jury convicted Appellant of murder of the first degree, two counts of aggravated assault, reckless endangerment, firearms not to be carried without a license, and possessing an instrument of crime. (See N.T. Trial, 8/13/98, at 393). J-S77043-16
nineteen years of incarceration. This Court affirmed the judgment of
sentence on November 17, 1999, and on May 25, 2000, our Supreme Court
denied allowance of appeal. (See Commonwealth v. Ross, 748 A.2d 1254
(Pa. Super. 1999) (unpublished memorandum), appeal denied, 758 A.2d
1198 (Pa. 2000)). Appellant did not petition the United States Supreme
Court for a writ of certiorari.
In this sixth petition for post-conviction relief, filed October 2, 2015,
Appellant argues chiefly that his sentence is unconstitutional and therefore
illegal, citing, inter alia, Alleyne v. United States, 133 S. Ct. 2151 (2013).2
(See Appellant’s Brief, at 9-10).
The PCRA court dismissed Appellant’s petition, reasoning in pertinent
part that under Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super.
2015), Alleyne did not apply retroactively on post-conviction review. (See
PCRA Court Opinion, 3/16/16, at 3). Appellant timely appealed.3
He presents three questions for our review:
I. Whether the [PCRA] court abused its discretion and/or committed an error of law when it refused to correct an ____________________________________________
2 Alleyne decided that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, supra at 2155 (citations omitted). From this premise the High Court concluded that judicial fact finding that increases the mandatory minimum sentence for a crime is not permissible under the Sixth Amendment, overruling Harris v. United States, 536 U.S. 545 (2002). 3 Appellant filed a timely statement of errors. The PCRA court filed an opinion on March 16, 2016. See Pa.R.A.P. 1925.
-2- J-S77043-16
unconstitutional sentencing statue [sic] that is now void ab initio?
II. Whether the Appellant has an equal protection right under the Fourteenth Amendment of the United States Constitution to a re-sentencing hearing just like those prisoner’s [sic] who [sic] sentences were vacated based upon unconstitutional statues [sic]?
III. Whether the Writ of Habeas Corpus remains an available remedy under Pennsylvania Constitution and can the PCRA statue [sic] serve as a bar to redress of those claims when the PCRA offers no remedy due to a lack of jurisdiction?
(Appellant’s Brief, at 4).
Our standard of review for an order denying PCRA relief is well-settled:
We review a PCRA court’s order to determine whether it 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. See Commonwealth
v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).
However, a petition must be timely before the PCRA court can review
the merits of the petitioner’s claim. “[I]f a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). The PCRA
provides that “[a]ny petition under this subchapter, 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).
-3- J-S77043-16
Here, as noted, Appellant’s judgment of sentence became final on
August 23, 2000, ninety days after May 25, 2000, when the Pennsylvania
Supreme Court denied leave to appeal and Appellant did not file a petition
for a writ of certiorari with the United States Supreme Court. See
U.S.Sup.Ct.R. 13. Therefore, Appellant had one year, until August 23, 2001
to file a timely PCRA petition.
Appellant cannot circumvent the time constraints of the PCRA by the
expedient of labeling his petition as a request for a writ of habeas corpus.
The remedy of habeas corpus is subsumed in the PCRA. “The action
established in this subchapter shall be the sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose that exist when this subchapter takes effect,
including habeas corpus and coram nobis.” 42 Pa.C.S.A. § 9542
(emphases added).
Because Appellant did not file his current petition until October 2,
2015, over fifteen years after his judgment of sentence became final, it is
untimely on its face. Thus, he had to plead and prove that his claim falls
under one of the exceptions at section 9545(b) to establish jurisdiction for a
merit review. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully proves that: (i) the failure to raise
the claim previously was the result of interference by government officials
-4- J-S77043-16
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. See id.
Furthermore, a petitioner who wishes to invoke any of the above
exceptions must file the petition “within [sixty] days of the date the claim
could have been presented.” Id. at § 9545(b)(2). The Pennsylvania
Supreme Court has repeatedly stated that it is an appellant’s burden to
plead and prove that one of the above-enumerated exceptions applies. See,
e.g., Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1268 (Pa. 2008),
cert. denied, 555 U.S. 916 (2008).
Preliminarily, in this appeal, it is important to distinguish at the outset
between claims of illegality of sentence on direct appeal, which, as Appellant
suggests, generally may not be waived, and claims of illegality of sentence
on collateral appeal, as here.
Appellant offers that even if untimely, a petitioner’s claims will always be considered on the merits when the claims challenge the legality of the sentence. Appellant is mistaken. Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA’s time limits or one of the
-5- J-S77043-16
exceptions thereto. Thus, Appellant’s contention is easily dismissed.
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citation omitted).
Similarly, Appellant, citing Alleyne and other cases, erroneously
assumes that “a mandatory sentencing scheme” was applied in this case,
that the application is unconstitutional, and therefore illegal. 4 (Appellant’s
Brief, at 10). First, the PCRA court correctly determined that Alleyne does
not apply. (See PCRA Ct. Op., at 3).5 Alleyne is not retroactive on
collateral appeal. See Commonwealth v. Washington, 142 A.3d 810,
820 (Pa. 2016) (holding that Alleyne does not apply retroactively to cases
pending on collateral review); see also Riggle, supra at 1064.
Appellant fails to develop any other argument that he qualifies for one
of the three statutory exceptions to the PCRA time-bar. Accordingly, the
PCRA court correctly determined that it lacked jurisdiction to review the
merits of Appellant’s underlying claims, and properly dismissed the petition.
____________________________________________
4 We note parenthetically for the sake of completeness that the question of whether an Alleyne violation implicates the legality of a sentence and thus renders a challenge non-waivable is currently pending before our Supreme Court. See Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015) (per curiam); see also Riggle, supra at 1064 (declining to apply Alleyne retroactively to cases during PCRA review). 5 Moreover, here, unlike Alleyne, the trial court did not engage in any additional fact-finding; it merely applied the sentence prescribed for the offenses of which the jury convicted Appellant.
-6- J-S77043-16
Finally, as observed and argued by the Commonwealth, even if
Alleyne applied, Appellant failed to file his petition within sixty days of the
filing of the opinion. (See Commonwealth’s Brief, at 7); see also Alleyne
supra (decided June 17, 2013). As already noted, Appellant filed his
petition on October 2, 2015, over two years later.
Because Appellant failed to plead and prove any of the three statutory
exceptions to the PCRA time-bar, the PCRA court correctly decided it lacked
jurisdiction to review the merits of Appellant’s claims, and properly
dismissed his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/14/2016
-7-