Opinion
J-S38010-15 No. 107 MDA 2015
08-04-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. LUIS GUILLERMO GONZALEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order of December 17, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0004006-2010
BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY WECHT, J.:
Luis Gonzalez appeals the December 17, 2014 order dismissing his petition for relief pursuant to the Post Conviction Relief Act ("PCRA") , 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.
On March 5, 2013, Gonzalez pleaded guilty to possession of a controlled substance with intent to deliver and possession of drug paraphernalia. He was sentenced on the same day to five to ten years' incarceration, a sentence that was agreed upon by all parties as part of a plea agreement. Gonzalez did not file a post-sentence motion or a direct appeal.
35 P.S. §§ 780-113(a)(30), (32), respectively. Due to our disposition of this case, the facts underlying Gonzalez' plea are irrelevant, and we will not recite them here.
On June 16, 2014, Gonzalez filed his PCRA petition, in which he alleged that his sentence was illegal pursuant to the United States Supreme Court's recent decision in Alleyne v. United States , 133 S.Ct. 2151 (2013). Counsel was appointed to represent Gonzalez. However, after reviewing the PCRA petition, the applicable law, and the record, counsel filed a no-merit letter and a petition to withdraw as counsel 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 December 2, 2014, the PCRA court granted counsel's motion to withdraw as counsel. Also on that date, the court filed a memorandum and order notifying Gonzalez of its intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. Finally, on December 17, 2014, the PCRA court dismissed Gonzalez' PCRA petition.
On January 4, 2015, Gonzalez filed a notice of appeal. On January 7, 2015, the PCRA court directed Gonzalez to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Gonzalez timely complied. On February 2, 2015, the PCRA court issued a memorandum pursuant to Pa.R.A.P. 1925(a), in which the court directed this Court to its analysis of Gonzalez' claims in its December 2, 2014 memorandum.
Gonzalez raises the following issue for our review:
Whether a non-waivable legality of sentence claim seeking a retroactivity analysis under Pennsylvania Constitution and/or decisional law (premised on imposition of a mandatory sentence statute subsequently declared unconstitutional by Pennsylvania courts) can be addressed and applied on collateral review by theBrief for Gonzalez at 4.
Superior and Supreme Courts of Pennsylvania, where the PCRA petition was deemed untimely because the Supreme Court has not yet decided the retroactivity question, and where the apparent issue of first impression will otherwise permanently escape review?
We first consider the timeliness of Gonzalez' PCRA petition. The PCRA was amended in 1995 to include strict time limits on filings, establishing that "[a]ny petition [filed under the PCRA] . . . shall be filed within one year of the date the judgment becomes final." 42 Pa.C.S. § 9545(b)(1). Under the PCRA, "[a] judgment 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." 42 Pa.C.S. § 9545(b)(3). It is well-established that these time limits are jurisdictional, and are meant to be both mandatory and applied literally by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted. Commonwealth v. Leggett , 16 A.3d 1144, 1145 (Pa. Super. 2011); Commonwealth v. Fahy , 737 A.2d 214, 222 (Pa. 1999) (stating that a trial court has no authority to extend filing periods except as the statute permits); see Commonwealth v. Gamboa-Taylor , 753 A.2d 780, 783 (Pa. 2000).
Because Gonzalez did not file a direct appeal, his judgment of sentence became final on April 4, 2013, thirty days after his sentence was imposed. Thus, to be timely, any petition for post-conviction collateral relief had to be filed within one year of that date, i.e., on or before April 4, 2014. The petition at issue herein was not filed until June 16, 2014, over two months beyond the deadline. Thus, the petition facially was untimely.
Despite the untimeliness of the petition, there are three statutory exceptions to this one-year time limit, which, when satisfied, permit a defendant to file a PCRA petition more than one year after the underlying judgment of sentence becomes final. These exceptions are as follows:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials 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.
42 Pa.C.S. § 9545(b). "[I]t is the appellant's burden to allege and prove that one of the timeliness exceptions applies." Commonwealth v. Albrecht , 994 A.2d 1091, 1094 (Pa. 2010).
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
Gonzalez maintains that both the governmental interference exception and the newly-recognized, retroactively held constitutional right exception are applicable, and render his petition timely. Gonzalez did not raise the governmental interference exception in the first instance before the PCRA court. Consequently, his request for relief upon that basis is waived. See Commonwealth v. Wharton , 886 A.2d 1120, 1126 (Pa. 2005); Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Thus, we focus our attention on Gonzalez' pursuit for relief under the newly-recognized, retroactively-held constitutional right exception.
Subsection (iii) of Section 9545[(b)(1)] has two requirements. First, it provides that 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 provided in this section. Second, it provides that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner must prove that there is a "new" constitutional right and that the right "has been held" by that court to apply retroactively. The language "has been held" is in the past tense. These words mean that the action has already occurred, i.e., "that court" has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.Commonwealth v. Seskey , 86 A.3d 237, 242-43 (Pa. Super. 2014) (quoting Commonwealth v. Copenhefer , 941 A.2d 646, 649-50 (Pa. 2007)).
Gonzalez focuses his argument for the applicability of the newly-recognized, retroactively-held constitutional right exception upon the United States Supreme Court's decision in Alleyne , as he did in his initial PCRA petition. In Commonwealth v. Miller , 102 A.3d 988 (Pa. Super. 2014), we presented the relevant portion of the Alleyne Court's rationale as follows:
In Alleyne , the Supreme Court held that "facts that increase mandatory minimum sentences must be submitted to the jury" and must be found beyond a reasonable doubt. Alleyne , supra at 2163. Alleyne is an extension of the Supreme Court's line of cases beginning with Apprendi v. New Jersey , 530 U.S. 466 (2000). In Alleyne , the Court overruled Harris v. United States , 536 U.S. 545 (2002), in which the Court had reached the opposite conclusion, explaining that there is no constitutional distinction between judicial fact[-]finding which raises the minimum sentence and that which raises the maximum sentence.
It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty. This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed to the crime—and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.
Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant's expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a
new, aggravated crime, each element of which must be submitted to the jury.
Miller , 102 A.3d at 994-95 (citations modified).
Alleyne , [133 S.Ct.] at 2160-61 (internal quotation marks and citations omitted).
Notably, to date, Alleyne has not been held to retroactively to those like Gonzalez whose judgments of sentences have become final. Unless and until either the Pennsylvania Supreme Court or the United States Supreme Court does so, Gonzalez is not entitled to relief pursuant to the exception. Gonzalez recognizes that he cannot satisfy the exception, but encourages this Court to undertake a retroactivity analysis and, at minimum, provide our Supreme Court with a platform to take up the issue.
While we appreciate Gonzalez' astute advocacy, we nonetheless do not need to undertake such an analysis, because a panel of this Court has already done so, and held that Alleyne does not apply retroactively to individuals whose judgments of sentence have become final. In Commonwealth v. Riggle , ___ A.3d ___, 2015 WL 4094427 (Pa. Super. 2015), the PCRA-appellant sought relief under Alleyne. Id. at *3-4. A panel of this Court recognized that, to date, no Pennsylvania court had determined whether Alleyne "is fully retroactive and to be applied on collateral review." Id. at *4. The panel noted that the correct test to apply is derived from the United States Supreme Court's decision in Teague v. Lane , 489 U.S. 288 (1989).
Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are on direct review. A new rule applies retroactively in a collateral proceeding only (1) if the rule is substantive or (2) the rule is a 'watershed rule of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding.Riggle , supra, at *4 (quoting Whorton v. Bockting , 549 U.S. 406, 416 (2007) (internal citations omitted)). Following a comprehensive application of Alleyne within the Teague framework, the panel held that Alleyne "is not entitled to retroactive effect in [the] PCRA setting." Riggle , supra, at *6.
Consequently, we need not (and cannot) reinvent the wheel, and we decline Gonzalez' invitation to address whether Alleyne applies retroactively. Not only is the issue already decided by a panel of this Court, but, even if we were to the first court to address the issue, Gonzalez still would not be entitled to relief because the exception only renders an untimely petition timely if the retroactive decision comes from either the Pennsylvania Supreme Court or the United States Supreme Court.
Gonzalez' petition is untimely, and, therefore, the PCRA court lacked jurisdiction to consider Gonzalez' PCRA petition. Gonzalez is not eligible for relief from the time-bar under the newly-recognized, retroactively-held constitutional right exception.
Gonzalez also claims that, because his claim implicates the legality of his sentence, it is non-waivable and warrants review. Waiver and jurisdiction are separate matters. "Though not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised for the first time in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim." Commonwealth v. Slotcavage , 939 A.2d 901, 903 (Pa. Super. 2007) (citing Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999) ("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 exceptions thereto.")). Here, the PCRA court had no jurisdiction, and his legality sentence is unreviewable.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015