Opinion
J-S60003-18 No. 415 MDA 2018
10-10-2018
COMMONWEALTH OF PENNSYLVANIA v. KENNETH LEE RANDOLPH, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 8, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005716-2010 BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Kenneth Lee Randolph, Jr., appeals from the order denying his second petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
In its opinion addressing Appellant's prior PCRA petition, the PCRA court summarized the partial procedural history of this case as follows:
On March 29, 2011, [Appellant] pled guilty to charges of involuntary manslaughter, prohibited possession of a firearm, carrying a firearm without a license, and recklessly endangering another person. Sentencing was deferred at [Appellant's] request. On May 10, 2011, [Appellant] was sentenced pursuant to the terms of the plea agreement to an aggregate of 7 ½ to 15 years' imprisonment.
On April 5, 2012, [Appellant] filed a pro se motion seeking modification of sentence, which was dismissed as untimely pursuant to Pa.R.Crim.P. 720(A)(1).1 No direct appeal was filed.
1 Pa.R.Crim.P. 720(A)(1) states: Except as provided in paragraphs (C) [(]concerning after-discovered evidence[)] and (D) [(concerning summary case appeals[)], a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.
PCRA Court Opinion, 9/20/13, at 1-2. Counsel was permitted to withdraw by order entered September 20, 2013. On September 20, 2013, the PCRA court also provided Appellant notice of its intent to dismiss his PCRA petition pursuant to Pa.R.Crim.P. 907.
On September 19, 2012, [Appellant] filed a pro se PCRA petition. Counsel was appointed on December 31, 2012. On January 28, 2013, counsel filed a motion to withdraw, which was denied without prejudice on May 7, 2013 for failure to provide evidence that counsel contemporaneously served upon [Appellant] his no-merit letter and motion to withdraw along with a statement that . . . [Appellant] may proceed pro se or with privately retained counsel. See Com. v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012). Counsel filed a second motion to withdraw on May 21, 2013 and therein cured the defects identified in the initial motion to withdraw.
18 Pa.C.S. §§ 2504(A), 6105(A)(1), 6106(A)(1), and 2705, respectively.
There is no evidence in the certified record that the PCRA court entered a final order denying Appellant's first PCRA petition, which effect will be addressed infra.
Appellant filed the current PCRA petition on January 19, 2018. On February 8, 2018, the PCRA court issued an order dismissing Appellant's second PCRA petition as untimely. On March 1, 2018, Appellant filed a timely notice of appeal. Appellant and the PCRA court complied with Pa.R.A.P. 1925.
We note that the PCRA court failed to issue Rule 907 notice before denying relief. Nevertheless, Appellant has not raised this issue on appeal, so he waived any defect in notice. See Commonwealth v. Taylor , 65 A.3d 462, 468 (Pa. Super. 2013) (explaining appellant's failure to raise on appeal PCRA court's failure to provide Rule 907 notice results in waiver of claim). Moreover, failure to issue Rule 907 notice is not reversible error where the record is clear that the petition is untimely. Id.
We first note the procedural misstep in the history of this case. As referenced, despite the PCRA court providing to Appellant notice of its intent to dismiss his first PCRA petition on September 20, 2013, there is no evidence in the certified record that the PCRA court issued a final order denying that petition. Thus, we must consider the impact, if any, on our ability to consider Appellant's appeal from the current PCRA petition, and in what context such appeal should be reviewed.
Our recent holding in Commonwealth v. Montgomery , 181 A.3d 359 (Pa. Super. 2018), is instructive. In Montgomery , the appellant filed a fourth PCRA petition with the PCRA court while his third PCRA petition was still pending before that court, and no previous PCRA petitions were under appellate review. Id. at 362. The issue before that panel was "whether a PCRA court possesses subject matter jurisdiction over a subsequent PCRA petition when a previous PCRA petition regarding the same judgment of sentence is pending before the PCRA court." Id. In addressing the issue, this Court interpreted our Supreme Court's holding in Commonwealth v. Porter , 35 A.3d 4 (Pa. 2012), and explained:
Porter announced a new general rule - a PCRA court may not entertain a new PCRA petition when a prior petition is still under appellate review and, thus, is not final; however, nothing bars a PCRA court from considering a subsequent petition, even if a prior petition is pending, so long as the prior petition is not under appellate review.Montgomery , 181 A.3d at 364-365 (emphasis added). Thus, this Court held that "PCRA courts are not jurisdictionally barred from considering multiple PCRA petitions relating to the same judgment of sentence at the same time unless the PCRA court's order regarding a previously filed petition is on appeal and, therefore, not yet final." Id. at 365. This Court concluded that the PCRA court properly construed the appellant's fourth petition separately from his third and dismissed the fourth petition as untimely. Id. at 367-368.
Accordingly, in this case, because there was no prior petition filed by Appellant that was on appellate review, the PCRA court properly considered Appellant's instant petition. Montgomery , 181 A.3d at 365. Thus, we may review Appellant's appeal from the order denying the instant PCRA petition.
When reviewing the propriety of an order denying PCRA relief, we consider the record "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Stultz , 114 A.3d 865, 872 (Pa. Super. 2015) (quoting Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)). This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Robinson , 139 A.3d 178, 185 (Pa. 2016). The PCRA court's findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert , 85 A.3d 1095, 1100 (Pa. Super. 2014).
A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence "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).
However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met. A petition invoking one of these exceptions must be filed within sixty days of the date the claim could first have been presented. 42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the PCRA's one-year filing deadline, "the petitioner must plead and prove specific facts that demonstrate his claim was raised within the sixty-day time frame" under section 9545(b)(2). Hernandez , 79 A.3d at 652.
The exceptions to the timeliness requirement are:
(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;42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
(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.
Our review of the record reflects that Appellant was sentenced on May 10, 2011. No direct appeal was filed. Accordingly, Appellant's judgment of sentence became final on June 9, 2011, when the time for seeking direct review with this Court expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Therefore, Appellant had to file the current PCRA petition by June 9, 2012, in order for it to be timely. Appellant did not file the instant PCRA petition, his second, until January 19, 2018. Thus, Appellant's instant PCRA petition is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA petition, his petition may nevertheless be received under any of the three limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his petition within sixty days of the date that the exception could be asserted. 42 Pa.C.S. § 9545(b)(2). This is true despite the fact that Appellant's petition presents a challenge to the legality of his sentence. See Commonwealth v. Fowler , 930 A.2d 586, 592 (Pa. Super. 2007) ("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.").
Appellant argues that his current PCRA petition is properly before the court because the trial court erred in applying the unconstitutional, mandatory minimum statutes 42 Pa.C.S. §§ 9712(A) and 6105(A)(1) to his case. Appellant's Brief at unnumbered 1. Appellant maintains that his sentence is illegal pursuant to Alleyne v. United States , 133 S.Ct. 2151 (2013). Appellant's Brief at unnumbered 4-6. Appellant further argues that issues pertaining to Alleyne go directly to the legality of the sentence, and a challenge to legality of sentence "may be entertained as long as the reviewing court has jurisdiction." Id. at 7.
We note the proper citation for the offense of prohibited possession of a firearm is 18 Pa.C.S. § 6105.
Despite relying on Alleyne and making an argument that appears to invoke the newly recognized constitutional right exception to the PCRA time-bar, Appellant asserts this claim invokes the "newly discovered evidence" exception. We note, however, that "judicial decisions do not constitute new 'facts' for purposes of the newly-discovered evidence exception set forth in Section 9545(b)(1)(ii). New legal decisions can only overcome the PCRA's timeliness requirements in the context of Section 9545(b)(1)(iii)." Commonwealth v. Kretchmar , 189 A.3d 459, 467 (Pa. Super. 2018).
This Court has explained the rulings and impact of Alleyne and related cases as follows:
In Alleyne , the Supreme Court held that the constitutional jury trial right requires any fact, other than a prior conviction, that triggers a mandatory minimum sentence to be proven beyond a reasonable doubt before the finder of fact. Alleyne is an application of the Court's prior pronouncement in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which ruled that any fact that increases a maximum sentence must be found by the factfinder beyond a reasonable doubt or admitted by the defendant during his guilty plea. In Alleyne , the United States Supreme Court expressly overruled Harris v. United States , 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that a fact that involves a mandatory minimum sentence does not implicate jury trial rights. Alleyne also implicitly abrogated McMillan v. Pennsylvania , 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which withstood an Apprendi attack in the Harris decision.Commonwealth v. Riggle , 119 A.3d 1058, 1064 (Pa. Super. 2015) (emphasis added).
In Commonwealth v. Newman , 99 A.3d 86 (Pa.Super.2014) (relying upon Commonwealth v. Watley , 81 A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that Alleyne will be applied to cases pending on direct appeal when Alleyne was issued.
While Alleyne applies retroactively to cases that were on direct appeal when Alleyne was issued, our Supreme Court has ruled that Alleyne does not apply retroactively to cases on PCRA review. See Commonwealth v. Washington , 142 A.3d 810, 820 (Pa. 2016) (holding that Alleyne does not apply retroactively to cases pending on collateral review.). Furthermore, our Court has ruled that Alleyne does not invalidate a mandatory minimum sentence when presented in an untimely PCRA petition. See Commonwealth v. Miller , 102 A.3d 988 (Pa. Super. 2014) (concluding Alleyne does not satisfy the new retroactive constitutional-right exception to the PCRA's one year time bar, 42 Pa.C.S. § 9545(b)(1)(iii)).
As noted, Appellant's judgment of sentence was imposed on May 10, 2011, and became final on June 9, 2011. Alleyne was decided on June 17, 2013. Alleyne , 133 S.Ct. at 2151. Appellant's judgment of sentence was finalized before Alleyne was decided. Therefore, Appellant's PCRA petition does not qualify for the new constitutional right exception to the PCRA time bar under Alleyne.
Additionally, we note that although a challenge based on Alleyne does implicate the legality of a sentence, "a legality of sentence claim may nevertheless be lost should it be raised . . . in an untimely PCRA petition for which no time-bar exception applies." Miller , 102 A.3d at 995. Thus, the PCRA court properly dismissed Appellant's instant PCRA petition as untimely. It was filed beyond the one-year general deadline, and Appellant cannot rely on Alleyne or its progeny to invoke the timeliness exception at Section 9545(b)(1)(iii).
Consequently, because the instant PCRA petition was untimely and no exceptions apply, the PCRA court lacked jurisdiction to address the claims presented and grant relief. See Commonwealth v. Fairiror , 809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack the authority to address the merits of any substantive claims raised in the PCRA petition. See Commonwealth v. Bennett , 930 A.2d 1264, 1267 (Pa. 2007) ("[J]urisdictional time limits go to a court's right or competency to adjudicate a controversy.").
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018