Com. v. Wright, E., Jr.

• Court: Superior Court of Pennsylvania
• Decided: September 19, 2017
• Docket: 70 MDA 2017
• Status: Unpublished

Opinion

J-S55037-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : EDWARD NICHOLAS WRIGHT, JR., : : Appellant : No. 70 MDA 2017

Appeal from the PCRA Order November 23, 2016 in the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000490-1997, CP-36-CR-0002538-1997, CP-36-CR-0002539-1997

BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 19, 2017

Edward Nicholas Wright, Jr. (Appellant) appeals from the November

23, 2016 order that dismissed his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In 1998, after a jury trial, Appellant was found guilty of six counts of

robbery, two counts of aggravated assault, and seven counts of criminal

conspiracy. He was sentenced to an aggregate term of 35 to 70 years of

incarceration.1 This Court denied Appellant relief on direct appeal, and his

judgment of sentence became final in 2000 after our Supreme Court denied

his petition for allowance of appeal. Commonwealth v. Wright, 739 A.2d

1 Appellant was sentenced pursuant to mandatory minimum sentences for committing a crime while possessing a firearm. See 42 Pa.C.S. § 9712(a). See also Commonwealth v. Valentine, 101 A.3d 801, 811 (Pa. Super. 2014) (en banc) (holding this statute unconstitutional). *Retired Senior Judge assigned to the Superior Court. J-S55037-17

573 (Pa. Super. 1999) (unpublished memorandum), appeal denied, 747

A.2d 368 (Pa. 1999).

On March 18, 2016, Appellant pro se filed the PCRA petition at issue in

this appeal, claiming that his sentence is illegal under Alleyne v. United

States, 133 S.Ct. 2151 (2013) (holding that a fact which triggers the

imposition of a mandatory minimum sentence is an element of the crime and

must, therefore, be determined beyond a reasonable doubt by a jury).

Counsel was appointed, and on September 13, 2016, counsel filed a motion

to withdraw and a no-merit letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988) (en banc).

On October 18, 2016, the PCRA court issued a notice of its intent to

dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907, concluding that

Appellant’s petition was filed untimely and that this Court’s holding to

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),2 precluded the

application of any exception to the timeliness requirements of the PCRA

based upon the Alleyne decision. Thus, the PCRA court granted counsel’s

petition to withdraw and permitted Appellant 20 days to file a response.

Appellant filed a response, and on November 23, 2016, the PCRA court

dismissed Appellant’s PCRA petition.

2 In Washington, our Supreme Court held that Alleyne does not apply retroactively to cases on collateral review.

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Appellant timely filed a notice of appeal.3 The PCRA court did not

order that Appellant file a Pa.R.A.P. 1925(b) statement, but issued a

Pa.R.A.P. 1925(a) statement, which relied on the reasoning of its October

18, 2016 notice and order.

On appeal, Appellant claims that the Alleyne decision should apply

retroactively to invalidate his sentence for two reasons: 1) because pursuant

to Montgomery v. Louisiana, 136 S.Ct. 718 (2016), section “9712 is void

ab initio;” and 2) because his situation is distinguishable from

Washington.4 Appellant’s Brief at 17.

The timeliness of a post-conviction petition is jurisdictional. See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

3 The order denying Appellant’s petition was entered on the docket on November 23, 2016. He had 30 days, or until December 23, 2016, to file timely a notice of appeal. See Pa.R.A.P. 903(a). Appellant’s notice of appeal was not docketed until December 27, 2016. However, pursuant to the prisoner mailbox rule, a pro se filing submitted by a prisoner incarcerated in a correctional facility is deemed filed as of the date it is delivered to the prison authorities for purposes of mailing or placed in the institutional mailbox. Commonwealth v. Wilson, 911 A.2d 942 (Pa. Super. 2006). Instantly, Appellant dated his notice of appeal December 18, 2016. Moreover, December 23, 2016 was a Friday, and due to the holiday schedule, the next business day for the courts was December 27, 2016. Thus, because it is plausible that the notice of appeal was in the hands of prison authorities earlier than December 23, 2016, we decline to quash this appeal. See Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (“Where … the opposing party does not challenge the timeliness of the appeal and the prisoner’s assertion of timeliness is plausible, we may find the appeal timely[.]”). 4 The Commonwealth has declined to file a brief.

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a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available. 42

Pa.C.S. § 9545(b) and (c).

It is clear that Appellant’s petition is facially untimely: his judgment of

sentence became final in 2000. Appellant believes his petition satisfies the

following timeliness exception: “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.” 42 Pa.C.S.

§ 9545(b)(1)(iii); Appellant’s Brief at 10-11.

However, our Supreme Court has held specifically that Alleyne does

not apply retroactively to cases on collateral review. See Washington,

supra. Even if it did apply retroactively, Appellant’s 2016 petition was not

filed within 60 days of the 2013 Alleyne decision. See Commonwealth v.

Secreti, 134 A.3d 77, 82-83 (Pa. Super. 2016) (noting petitions filed within

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60 days of Supreme Court decision recognizing retroactive application of

new constitutional right satisfied requirement of 42 Pa.C.S. § 9545(b)(2)).

In an attempt to circumvent the Washington holding, Appellant

invokes the United States Supreme Court’s decision in Montgomery, which

held that its decision in Miller v. Alabama, 567 U.S. 460 (2012),5

announced a new substantive rule of law that applies retroactively.

Montgomery, 136 S.Ct. at 736. However, as Washington made clear,

Alleyne is a procedural rule, not a substantive rule. Accordingly, the

rationale of Montgomery, which dealt with a substantive rule, cannot apply

here. In addition, Appellant was neither convicted of murder nor sentenced

to life without parole; thus, neither Miller nor Montgomery applies to him.

Because Appellant failed to establish the applicability of a timeliness

exception, the PCRA court properly dismissed the petition for lack of

jurisdiction.

Order affirmed.

5 In Miller, the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” 567 U.S. at 465.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/19/2017

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