Opinion
J-S21003-16 No. 2489 EDA 2015
04-25-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MOSES BEMBURY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered July 31, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007806-2008 BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Moses Bembury, appeals from the post-conviction court's July 31, 2015 order denying, as untimely, his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Additionally, Appellant's counsel, Elissa B. Heinrichs, Esq., seeks permission to withdraw her representation of Appellant pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988). After careful review, we agree with Attorney Heinrichs that Appellant's single issue, challenging the legality of his sentence, is meritless. Thus, we affirm the order denying his PCRA petition and grant counsel's petition to withdraw.
The PCRA court set forth the facts and procedural history of Appellant's case as follows:
On February 25, 2009, following a bench trial before the Honorable John J. Rufe, [Appellant] ... was found guilty of Firearms Not to be Carried Without a License[,]1[] Possession with Intent to Deliver2 and Possession of a Controlled Substance[.]3[] On April 2, 2009, [Appellant] was sentenced to ... 5 to ... 10 years' incarceration pursuant to the mandatory sentencing provisions at 42 Pa.C.S. § 9712.1, and to a consecutive period of 2 years' probation. On April 14, 2009, the trial court granted the Commonwealth's motion to reconsider sentence and vacated its Order granting [Appellant's] eligibility under the Recidivism Risk Reduction Incentive (RRRI) Act. [Appellant] filed a direct appeal, which was denied by the Pennsylvania Superior Court on June 15, 2010. [ Commonwealth v. Bembury , 4 A.3d 686 (Pa. Super. 2010) (unpublished memorandum)]. On December 29, 2010, the Pennsylvania Supreme Court denied his petition for allowance of appeal. [ Commonwealth v. Bembury , 14 A.3d 822 (Pa. 2010)]. [Appellant] did not file a petition for writ of certiorari to the United States Supreme Court.PCRA Court Opinion, 9/15/15, at 1-2 (one footnote omitted).
1 18 [Pa.C.S.] § 6106[(a)(1)].
2 35 P.S. [§] 780-113(a)[(]30[)].
3 35 P.S. [§] 780-113(a)(16).
On February 23, 2015, Appellant filed a pro se PCRA petition, alleging that his mandatory minimum sentence is illegal under Alleyne v. United States , 133 S.Ct. 2151 (2013), and this Court's decisions in Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) (en banc), Commonwealth v . Thompson , 93 A.3d 478 (Pa. Super. 2014), and Commonwealth v. Watley , 81 A.3d 108 (Pa. Super. 2013). Attorney Heinrichs was appointed to represent Appellant. On April 27, 2015, the Commonwealth filed a motion to dismiss Appellant's petition as being untimely filed. The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition on June 2, 2015. Appellant filed a pro se response to the court's Rule 907 notice, but on July 31, 2015, the court issued an order denying his petition.
Attorney Heinrichs filed a timely notice of appeal on Appellant's behalf, and also timely complied with the PCRA court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Therein, Appellant presented one claim for our review:
1. The [PCRA] court erred when it dismissed [Appellant's] petition for post-conviction collateral relief when [Appellant's] sentence, which was imposed in accordance with mandatory sentencing laws now determined to be unconstitutional, is illegal and violates the Sixth Amendment to the United States Constitution.Pa.R.A.P. 1925(b) Statement, 8/31/15, at 1-2 (unnumbered).
On December 28, 2015, Attorney Heinrichs filed with this Court a petition to withdraw, as well as a Turner/Finley 'no-merit' letter. Accordingly, before we may address Appellant's above-stated issue, we must first review Attorney Heinrichs' request to withdraw.
Attorney Heinrichs' no-merit letter is styled like an Anders brief. See Anders v. California , 386 U.S. 738 (1967). However, this Court has held that we may accept an Anders brief in lieu of a Turner/Finley letter, as an Anders brief provides greater protection to the defendant. See Commonwealth v. Fusselman , 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
In Turner , our Supreme Court "set forth the appropriate procedures for the withdrawal of court-appointed counsel in collateral attacks on criminal convictions[.]" Turner , 544 A.2d at 927. The traditional requirements for proper withdrawal of PCRA counsel, originally set forth in Finley , were updated by this Court in Commonwealth v. Friend , 896 A.2d 607 (Pa. Super. 2006), abrogated by Commonwealth v . Pitts , 981 A.2d 875 (Pa. 2009), which provides:
In Pitts , our Supreme Court abrogated Friend "[t]o the extent Friend stands for the proposition that an appellate court may sua sponte review the sufficiency of a no-merit letter when the defendant has not raised such issue." Pitts , 981 A.2d at 879. In this case, Attorney Heinrichs filed her petition to withdraw and no-merit letter with this Court and, thus, our Supreme Court's holding in Pitts is inapplicable.
(1) As part of an application to withdraw as counsel, PCRA counsel must attach to the application a "no-merit" letter[;]
2) PCRA counsel must, in the "no-merit" letter, list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel's review of the merits of each of those claims[;]
3) PCRA counsel must set forth in the "no-merit" letter an explanation of why the petitioner's issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must include (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;
5) the court must conduct its own independent review of the record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA counsel to withdraw; andFriend , 896 A.2d at 615 (footnote omitted).
6) the court must agree with counsel that the petition is meritless.
Here, Attorney Heinrichs filed a petition to withdraw and a brief, which we will treat as her no-merit letter. In her letter, Attorney Heinrichs sets forth the single issue Appellant wishes to have reviewed, and she indicates the nature and extent of her review of that claim. She also explains why Appellant's issue is meritless. Attached to her petition to withdraw, Attorney Heinrichs included a letter addressed to Appellant informing him that she is withdrawing, stating that she has enclosed her no-merit letter, and advising him that he has the right to retain private counsel or proceed pro se. Accordingly, Attorney Heinrichs has satisfied the first four requirements for withdrawal under Turner/Finley. Next, we will conduct our own independent assessment of the record to determine if the issue presented in Appellant's petition is meritless.
This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the timeliness of Appellant's petition, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett , 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(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:
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).(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.
Here, Appellant's judgment of sentence became final on March 29, 2011, ninety days after the Pennsylvania Supreme Court denied his petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Commonwealth v. Owens , 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA, a petitioner's judgment of sentence becomes final ninety days after our Supreme Court rejects his or her petition for allowance of appeal since petitioner had ninety additional days to seek review with the United States Supreme Court). Consequently, Appellant had until March 29, 2012, to file a timely PCRA petition, making his current petition, filed on February 23, 2015, patently untimely. For this Court to have jurisdiction to review the merits of his petition, Appellant must prove that he meets one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
In his petition, Appellant argued that he meets the 'new constitutional right' exception of section 9545(b)(1)(iii) based on Alleyne. In Alleyne , the United States Supreme Court held that "facts that increase mandatory minimum sentences must be submitted to the jury" and found beyond a reasonable doubt. Alleyne , 131 S.Ct. at 2163. Since Alleyne , this Court has issued a line of cases deeming mandatory minimum sentencing statutes unconstitutional. For instance, in Newman , we held that the mandatory sentencing provision under which Appellant was sentenced, 42 Pa.C.S. § 9712.1, is unconstitutional in its entirety in light of Alleyne. See Newman , 99 A.3d at 103. Appellant asserted in his petition that, pursuant to Alleyne and Newman , his sentence is illegal and relief must be granted.
This Court has held "that issues pertaining to Alleyne go directly to the legality of the sentence." Commonwealth v. Fennell , 105 A.3d 13, 16 (Pa. Super. 2014) (citing Commonwealth v. Lawrence , 99 A.3d 116, 123 (Pa. Super. 2014). "It is also well-established that '[i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.'" Id. (quoting Commonwealth v. Rivera , 95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted)). Clearly, then, Appellant's sentence imposed under a now-unconstitutional sentencing statute is illegal.
However, because Appellant's PCRA petition is untimely, we do not have jurisdiction to correct that illegal sentence unless Appellant proves the applicability of one of the above-stated timeliness exceptions to the PCRA's one-year time-bar. See Commonwealth v. Fahy , 737 A.2d 214, 222 (Pa. 1999) ("[A]lthough a legality of sentence is always subject to review within the PCRA, claims must first satisfy the PCRA's time limits or one of the exceptions thereto."); Commonwealth v. Fowler , ("[A] court may entertain a challenge to the legality of the sentence so long as the court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the filing of a timely PCRA petition."). While Appellant asserted in his petition that Alleyne satisfies section 9545(b)(1)(iii), this Court has previously rejected that argument, stating:
Even assuming that Alleyne did announce a new constitutional right, neither our Supreme Court, nor the United States Supreme Court has held that Alleyne is to be applied retroactively to cases in which the judgment of sentence had become final. This is fatal to Appellant's argument regarding the PCRA time-bar. This Court has recognized that a new rule of constitutional law is applied retroactively to cases on collateral review only if the United States Supreme Court or our Supreme Court specifically holds it to be retroactively applicable to those cases. Commonwealth v. Phillips , 31 A.3d 317, 320 (Pa.
Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012), citing Tyler v . Cain , 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001); see also, e.g., Commonwealth v . Taylor , 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, "for purposes of subsection (iii), the language 'has been held by that court to apply retroactively' means the court announcing the rule must have also ruled on the retroactivity of the new constitutional right, before the petitioner can assert retroactive application of the right in a PCRA petition[ ]"), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy the new constitutional right exception to the time-bar.Commonwealth v. Miller , 102 A.3d 988, 995 (Pa. Super. 2014). Since Miller , neither our Supreme Court nor the United States Supreme Court has held that Alleyne applies retroactively. Additionally, Newman cannot satisfy the exception of section 9545(b)(1)(iii), as it was a decision by this Court and did not announce a new constitutional right; instead, the Newman panel merely applied the rule announced in Alleyne to strike down a specific mandatory minimum sentencing statute.
In sum, neither Alleyne nor Newman satisfy the exception set forth in section 9545(b)(1)(iii). We also ascertain no way in which Appellant's legality of sentencing issue could satisfy either of the exceptions set forth in sections 9545(b)(1)(i) or (ii). Because Appellant has not proven the applicability of any timeliness exception, this Court is without jurisdiction to correct his illegal sentence. See Fahy , 737 A.2d at 223. Accordingly, we agree with Attorney Heinrichs that Appellant's issue is meritless. Thus, we affirm the PCRA court's denial of Appellant's untimely petition, and grant counsel's petition to withdraw.
Order affirmed. Petition to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/25/2016