Com. v. Simmons, D.

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2019
• Docket: 3899 EDA 2017
• Status: Unpublished

Opinion

J-S71030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DERRICK SIMMONS : : Appellant : No. 3899 EDA 2017

Appeal from the PCRA Order October 27, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0130401-1983

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 27, 2019

Appellant, Derrick Simmons, appeals pro se from the October 27, 2017

Order entered in the Philadelphia County Court of Common Pleas denying his

sixth Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

On July 15, 1983, a jury convicted Appellant of First-Degree Murder,

Criminal Conspiracy, and Possession of an Instrument of Crime (“PIC”) in

connection with the November 9, 1979 fatal stabbing of William Grant

Johnson.1 On March 12, 1984, the court sentenced Appellant to a term of life

imprisonment.

Following a direct appeal, this Court affirmed the jury’s verdicts, but

amended Appellant’s Judgment of Sentence in order to vacate a separate

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1 Appellant, who was born in September 1960, was 19 years old at the time of this crime. J-S71030-18

sentence that the trial court had imposed for Appellant’s PIC conviction. See

Commonwealth v. Simmons, 548 A.2d 284 (Pa. Super. 1988). The

Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of

Appeal on August 23, 1989. Thus, Appellant’s Judgment of Sentence became

final on October 23, 1989, when his time for seeking review with the United

States Supreme Court expired.2

Appellant unsuccessfully sought PCRA relief in 1991, 1995, 1997, 2006,

and 2009.

On November 14, 2016, Appellant filed the instant PCRA Petition, his

sixth. On May 1, 2017, Appellant filed an Amended PCRA Petition, in which

he alleged that he is serving an illegal sentence pursuant to Alleyne v. United

States, 570 U.S. 99 (2013). In an effort to overcome the PCRA’s one-year

time-bar, Appellant invoked Section 9545(b)(1)(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.”). In

his Amended PCRA Petition, Appellant conceded that Alleyne does not apply

retroactively to cases pending on direct appeal. Amended Petition, 5/1/17, at

10, 14.

2See U.S.Sup.Ct.R. 20 (effective June 30, 1980; amended August 1, 1984 at U.S.Sup.Ct.R. 20.1) (allowing 60 days to file petition for writ of certiorari). The current rule allows 90 days to file a petition for writ of certiorari. See U.S.Sup.Ct.R. 13.

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On August 2, 2017, the PCRA court notified Appellant of its intent to

dismiss his petition as untimely without a hearing pursuant to Pa.R.Crim.P.

907. On August 4, 2018, Appellant filed a Response to the court’s Rule 907

Notice. In it, he claimed his sentence was illegal pursuant to Commonwealth

v. Batts, 163 A.3d 410 (Pa. 2017).

On October 27, 2017, the PCRA court dismissed Appellant’s Petition as

untimely. This timely pro se appeal followed.

Appellant’s Brief does not contain a Statement of Questions Involved.

However, we glean from the Argument Section of his Brief that he seeks to

challenge the PCRA court’s conclusion that his illegal sentence claim is time-

barred.

“Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the record evidence and free of legal error.” Commonwealth v. Root,

179 A.3d 511, 515-16 (Pa. Super. 2018) (citation omitted). This Court grants

great deference to the findings of the PCRA court if they are supported by the

record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We

give no such deference, however, to the court’s legal conclusions.

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

In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. Id. at Section

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9545(b)(1). Appellant’s Petition, filed more than 27 years after his Judgment

of Sentence became final, is facially untimely.

As noted supra, Appellant attempts to invoke the exception set forth at

Section 9545(b)(1)(iii). Appellant initially claimed that he is serving an illegal

sentence pursuant to Alleyne. As conceded by Appellant, however, the

Pennsylvania Supreme Court has held that Alleyne does not apply

retroactively to cases pending on collateral review. See Commonwealth v.

Washington, 142 A.3d 810, 819-20 (Pa. 2016).

In his Amended PCRA Petition, Appellant invoked Batts, 163 A.3d 410

(Pa. 2017) (“Batts II”), in an attempt to overcome the PCRA’s jurisdictional

time-bar. This attempt likewise fails. First, Batts II did not create a newly-

recognized constitutional right for purposes of Section 9545(b)(1)(iii). Rather,

in Batts II, the Pennsylvania Supreme Court held that trial courts must apply

a presumption against the imposition of life without parole sentences for

juvenile offenders, which is rebuttable in cases where the juvenile is

“incapable of rehabilitation” and “permanently incorrigible.” Batts, 163 A.3d

at 416, 438. Second, Batts II is inapplicable to the instant case because

Appellant was not a juvenile at the time he committed his crimes. Last, even

if Batts II were otherwise applicable, the Pennsylvania Supreme Court has

has never held that its holding applies retroactively.

Accordingly, Appellant has not satisfied any of the exceptions to the

PCRA’s jurisdiction time-bar.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/27/19

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