Com. v. Weiss, K.

• Court: Superior Court of Pennsylvania
• Decided: February 28, 2017
• Docket: Com. v. Weiss, K. No. 1200 EDA 2016
• Status: Unpublished

Opinion

J-S85039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : KATHY WEISS, : : Appellant : No. 1200 EDA 2016

Appeal from the PCRA Order April 19, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-1204491-1996

BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 28, 2017

Kathy Weiss (“Weiss”) appeals from the Order dismissing her second

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541–9546. We affirm.

In 1997, following a bench trial, Weiss was convicted of robbery,

burglary, theft, possessing an instrument of crime, unlawful restraint, and

criminal conspiracy. The trial court imposed an aggregate sentence of

thirty-five to seventy years in prison.

This Court affirmed the judgment of sentence, and the Pennsylvania

Supreme Court denied allowance of appeal on February 17, 2000. See

Commonwealth v. Weiss, 742 A.2d 1154 (Pa. Super. 1999) (unpublished

memorandum), appeal denied, 751 A.2d 190 (Pa. 2000).

On March, 2001, Weiss filed her first PCRA Petition, alleging ineffective

assistance of counsel. The PCRA court dismissed the Petition. This Court J-S85039-16

affirmed the dismissal Order, and the Pennsylvania Supreme Court denied

allowance of appeal. See Commonwealth v. Weiss, 844 A.2d 1290 (Pa.

Super. 2003) (unpublished memorandum), appeal denied, 858 A.2d 110

(Pa. 2004).

Weiss filed the instant pro se PCRA Petition on August 13, 2013. The

PCRA court appointed counsel, who filed an amended PCRA Petition claiming

Weiss’s sentence was illegal under Alleyne v. United States, 133 S. Ct.

2151 (2013).1 The PCRA court issued a Pa.R.Crim.P. 907 Notice of its intent

to dismiss the Petition, and Weiss filed a Response. The PCRA court

dismissed the second Petition as untimely filed. Weiss filed a timely Notice

of Appeal and a Concise Statement of matters complained on appeal

pursuant to Pa.R.A.P. 1925(b).

On appeal, Weiss raises the following question for our review: “Did the

lower court err in finding that it lacked jurisdiction to correct a patently

illegal sentence?” Brief for Appellant at 4.

“On appeal from the [dismissal] of PCRA relief, our standard of review

calls for us to determine whether the ruling of the PCRA court is supported

by the record and free of legal error.” Commonwealth v. Nero, 58 A.3d

802, 805 (Pa. Super. 2012).

1 In Alleyne, the Supreme Court held that any fact that increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155.

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Initially, under the PCRA, any PCRA petition “including a second or

subsequent petition, shall be filled 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 Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Here, Weiss’s Petition is facially untimely under the PCRA. See 42

Pa.C.S.A. § 9545(b). However, Pennsylvania courts may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). Any PCRA petition

invoking one of these exceptions “shall be filed within 60 days of the date

the claim could have been presented.” Id. § 9545(b); Albrecht, 994 A.2d

at 1094.

Weiss invokes the newly-recognized constitutional right exception

under section 9545(b)(1)(iii), and argues that her sentence is illegal based

upon Montgomery v. Louisiana, 136 S. Ct. 718 (2016). See Brief for

Appellant at 10, 12. In Montgomery the United State Supreme Court held

that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively to

juveniles, who were under the age of eighteen at the time of the commission

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of the crime, and sentenced to mandatory life sentences with the possibility

of parole. See Montgomery, 136 S. Cr. at 736. Montgomery is

inapplicable to this case because Weiss was not a juvenile when she

committed the crimes, nor was she sentenced to life in prison without

parole. See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super.

2013). Thus, Weiss failed to meet the requirements of the third timeliness

exception2, and the PCRA court properly dismissed her PCRA Petition.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/28/2017

2 While Weiss does not cite to Alleyne in her appellate brief, we note that Alleyne does not invoke the exception under section 9545(b)(1)(iii). Indeed, neither the United States Supreme Court nor the Pennsylvania Supreme Court has ruled that Alleyne applies retroactively to cases in which a judgment of sentence has become final. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014); id. (stating that while Alleyne claims go to the legality of the sentence, a court cannot review a legality claim where it does not have jurisdiction); 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.”). 3 Weiss also argues that her counsel was ineffective for not objecting to a sentence that exceeds the statutory maximum. Brief for Appellant at 10. However, Weiss failed to raise this claim in her Concise Statement, thus the claim is waived. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Further, allegations of ineffective assistance of counsel do not implicate a timeliness exception. See Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

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