Opinion
J-S24040-15 No. 3289 EDA 2014
05-12-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KENYATTA JAVON HUGHSTON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Orders entered on October 17, 2014 in the Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0000897-2008 BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Kenyatta Javon Hughston ("Hughston"), pro se, appeals from the October 17, 2014 Order dismissing his fourth Petition filed pursuant to the Post Conviction Relief Act ("PCRA"), as well as the Order entered on the same date denying his pro se Motion to Recuse the PCRA court Judge, the Honorable John P. Capuzzi, Sr. ("Judge Capuzzi"). We affirm.
In March 2009, a jury found Hughston guilty of two counts of robbery and one count each of criminal conspiracy, forgery, and possession of an instrument of crime. Notably to the instant appeal, on March 6, 2009, the Commonwealth sent Hughston a Notice (hereinafter "the Mandatory Minimum Notice") that the Commonwealth intended to seek imposition of a ten-year mandatory minimum sentence, based upon Hughston's prior conviction of a "crime of violence," pursuant to 42 Pa.C.S.A. § 9714(a)(1). On June 15, 2009, the trial court conducted a sentencing hearing, wherein the Commonwealth presented evidence of Hughston's prior conviction of aggravated assault. Hughston's defense counsel stipulated to the conviction. N.T., 6/15/09, at 10-11. The trial court then proceeded to sentence Hughston to an aggregate prison term of 132 to 200 months, which included the ten-year mandatory sentence pursuant to section 9714(a)(1). Hughston did not file a direct appeal.
The "crime of violence" of which Hughston was previously convicted was aggravated assault, 18 Pa.C.S.A. § 2702(a)(1). Hughston pled guilty to this offense on January 3, 1991, for an assault he perpetrated on February 20, 1990 (hereinafter "the 1990 incident").
Section 9714(a)(1) provides, in relevant part, that a trial court must impose a minimum sentence of "at least ten years of total confinement" when a person, convicted of a "crime of violence," had, at the time he committed the crime, "previously been convicted of a crime of violence." 42 Pa.C.S.A. § 9714(a)(1). A conviction of aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(1), constitutes a "crime of violence," triggering the mandatory minimum sentence. See 42 Pa.C.S.A. § 9714(g).
In the following years, Hughston filed three PCRA Petitions, all of which were dismissed, and this Court affirmed each dismissal. On June 23, 2014, Hughston filed the instant pro se PCRA Petition, alleging, inter alia, that his sentence under section 9714(a)(1) was illegal because he did not have a legally valid prior conviction for a "crime of violence" at the time of sentencing. Hughston averred that his trial counsel was ineffective by stipulating at sentencing to Hughston's prior aggravated assault conviction, since the Criminal Complaint concerning the 1990 incident allegedly never charged Hughston with aggravated assault. See PCRA Petition, 6/23/14, at 4, 8 (asserting that Hughston's guilty plea to aggravated assault regarding the 1990 incident was invalid because he was never charged with this crime, and therefore, the trial court in the instant case improperly sentenced him under section 9714(a)(1)).
Subsequently, the PCRA court issued an Order, pursuant to Pa.R.Crim.P. 907, notifying Huston of the court's intention to dismiss his PCRA Petition without a hearing, concluding that the Petition was facially untimely, and Hughston had not proven any of the three exceptions to the PCRA's jurisdictional time limitation. Relevant to the instant appeal, the PCRA court stated in its Rule 907 Order as follows:
On September 5, 2014, [Hughston] filed a[n] "Amended Memorandum of Law in Support of PCRA Petition." In the second paragraph ..., [Hughston] alleges that [the PCRA c]ourt appointed [him] PCRA counsel on August 19, 2014. Th[e PCRA c]ourt did not issue any orders appointing PCRA counsel. Furthermore, counsel will not be appointed for [Hughston,] seeing [that] this is [his] fourth PCRA [P]etition.Order, 9/23/14, at ¶ 15. Concerning the matter of the appointment of PCRA counsel, the PCRA court further explained that
[o]n October 2, 2014, th[e PCRA c]ourt received an application to withdraw and a "no merit" letter from Stephen D. Molineaux, Esquire ["Attorney Molineaux"]. Th[e PCRA c]ourt contacted [Attorney] Molineaux because th[e PCRA c]ourt never signed an order appointing an attorney. After conversation, it was determined that a copy of [Hughston's fourth] PCRA Petition was sent to [Attorney Molineaux] as a clerical mistake[,] because if th[e PCRA c]ourt [had] decided to appoint counsel, he was next on the appointment list. After reviewing his file,
[Attorney Molineaux] agreed there was no appointment order signed by th[e PCRA c]ourt. [Hughston] then filed a []Motion to Recuse [Judge Capuzzi].PCRA Court Opinion, 11/20/14, at 5 (footnote in original).
On October 17, 2014, th[e PCRA c]ourt issued a final Order dismissing [Hughston's] PCRA Petition. The Order stated that [Attorney Molineaux's] "no merit" letter would not be entertained in th[e PCRA c]ourt's decision[,] and that [Hughston] was pro se and would continue to be pro se. In addition, [Judge Capuzzi] issued an Order denying the Motion to Recuse.[FN]
[FN] Th[e PCRA c]ourt denied the [M]otion [to Recuse] because [Hughston's] only claim was that th[e PCRA c]ourt was "overruling or vacating" its own order that [appointed Hughston] counsel. Th[e PCRA c]ourt never issued an order appointing counsel[,] and had explained that to [Hughston] in the [Rule 907 Order]. It should also be noted that counsel who mistakenly thought he was appointed filed a "no merit" letter[. E]ven if[] th[e PCRA c]ourt decided to issue a formal order appointing counsel and considered the "no merit" letter, the outcome of [Hughston's] PCRA Petition would have been exactly the same; [it would have been] denied without a hearing.
Hughston filed a pro se Response to the court's Rule 907 Notice.
Following Hughston's timely filing a pro se Notice of Appeal, he instantly presents the following issues for our review:
I. Whether [Hughston] is serving an illegal sentence in violation of the United States Constitution?
II. Whether the PCRA court erred in dismissing [Hughston's] PCRA Petition without a hearing?
III. Whether an appellant must suffer to be wrongfully imprisoned under an illegal sentence for want of an adequate remedy?
IV. Whether there is plain error in sentencing [Hughston] under 42 Pa.C.S.A. § 9714, where the record shows that [Hughston] was not charged with [] felony aggravated assault in the 1990 incident[,] which
triggered the mandatory minimum sentence under 42 Pa.C.S.A. § 9714?Brief for Appellant at 4 (issues re-ordered for ease of disposition).
V. Whether there was fraudulent conduct by the prosecuting attorney[, who] misled, and misrepresented to the [trial] court, that [Hughston] was charged in the 1990 incident with aggravated assault?
VI. Whether trial counsel, and all counsel[] of record[,] was ineffective for fail[ing] to challenge the alleged 1990 aggravated assault conviction; [and] whether it was constitutionally valid?
VII. Whether [Judge Capuzzi] ... erred in denying [Hughston's] Motion to Recuse?
"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). A PCRA court may decline to hold a hearing on a PCRA petition if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence. Commonwealth v. Derrickson , 923 A.2d 466, 468 (Pa. Super. 2007); see also Pa.R.Crim.P. 907 (setting forth conditions whereby a PCRA petition may be dismissed without a hearing).
Under the PCRA, any PCRA petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition that is not filed within one year of the date the judgment becomes final is time-barred, unless the petitioner has pled and proven one of the three exceptions to the PCRA's time limitation set forth in 42 Pa.C.S.A. § 9545(b)(1)(i-iii) (providing that an untimely PCRA petition may be considered timely if a petitioner alleges and proves (1) governmental interference with the presentation of his claims; (2) discovery of previously unknown facts which could not have been discovered with due diligence; or (3) an after-recognized constitutional right given retroactive application). 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, Hughston's fourth PCRA Petition, filed in June 2014, is facially untimely, as his judgment of sentence became final in July 2009. Although Hughston does not specifically invoke any of the PCRA's timeliness exceptions in his appellate brief or his PCRA Petition, a review of these documents suggests that Hughston wishes to invoke the newly recognized constitutional right exception, by way of his discussion of the United States Supreme Court's recent decision in Alleyne v. U.S ., 133 S. Ct. 2151 (2013) (holding that any "fact" that increases a mandatory minimum sentence must be treated as an element of the crime that must be submitted to a jury and found beyond a reasonable doubt). Accordingly, in the interest of judicial economy, we deem that Hughston has invoked the newly recognized constitutional right exception.
Hughston timely complied with 42 Pa.C.S.A. § 9545(b), as he filed his PCRA Petition citing Alleyne within the sixty-day time limitation.
Hughston argues in his first three, related issues that the PCRA court erred by dismissing his PCRA Petition without a hearing because the sentencing court imposed an illegal sentence by applying the mandatory minimum sentencing provision of 42 Pa.C.S.A. § 9714(a)(1). See Brief for Appellant at 7-11, 18, 20. According to Hughston, this violated Alleyne , because the determination of whether section 9714(a)(1) was satisfied must be made by a fact-finder, and be proven beyond a reasonable doubt. See id . at 7, 11; see also Alleyne , 133 S. Ct. at 2162-63. We disagree.
Though Hughston does not cite to Alleyne in his appellate brief, he discussed it in connection with his PCRA Petition. See PCRA Petition, 6/23/14, at 8; see also Memorandum of Law in Support of PCRA Relief, 6/23/14, at 4.
This Court has explained the holding in Alleyne as follows:
According to the Alleyne Court, a fact that increases the sentencing floor is an element of the crime. Thus, it ruled that facts that mandatorily increase the range of penalties for a defendant must be submitted to a fact-finder and proven beyond a reasonable doubt. The Alleyne decision, therefore, renders those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior convictions constitutionally infirm insofar as they permit a judge to automatically increase a defendant's sentence based on a preponderance of the evidence standard.Commonwealth v. Watley , 81 A.3d 108, 117 (Pa. Super. 2013) (en banc) (emphasis added; footnotes omitted); see also Alleyne , 133 S. Ct. at 2160 n.1 (wherein the Alleyne Court upheld the Supreme Court's prior holding in Almendarez-Torres v. U.S ., 523 U.S. 224 (1998), that the fact of a prior conviction does not need to be submitted to the jury and found beyond a reasonable doubt).
In the instant case, the sentencing court applied the mandatory minimum sentence under section 9714(a)(1) based upon Hughston's prior conviction of a crime of violence at the time of sentencing. Therefore, Hughston's sentence is not illegal and does not run afoul of Alleyne. See Watley , supra . Moreover, this Court has held that even if Alleyne is interpreted as enunciating a newly recognized constitutional right, such right is not applicable retroactively to cases on PCRA review. Miller , 102 A.3d at 995; see also id . (rejecting the PCRA petitioner's challenge to the application of the 25-year mandatory minimum sentence under section 9714(a)(2) based upon Alleyne ).
As we discuss below, the record belies Hughston's claim that he was never charged with aggravated assault concerning the 1990 incident, and therefore, could not have properly pled guilty to that charge.
In his next two issues, Hughston argues that the PCRA entitles him to relief because his sentence under section 9714(a)(1) was illegal, in that he was improperly convicted of aggravated assault concerning the 1990 incident, where the Criminal Complaint purportedly never charged him with such offense. See Brief for Appellant at 11-16.
Because we have already determined that Hughston did not meet the newly recognized constitutional right exception concerning his facially untimely PCRA Petition, nor did he plead and prove any other timeliness exception, we lack jurisdiction to address his instant claim of an illegal sentence. See Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999) (stating that "[a]lthough 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."); Commonwealth v. Seskey , 86 A.3d 237, 241 (Pa. Super. 2014) (stating that "[t]hough not technically waivable, 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, thus depriving the court of jurisdiction over the claim." (brackets omitted)).
Nevertheless, our review discloses that Hughston's claim is belied by the record, as it reveals that the Commonwealth attached to the Mandatory Minimum Notice certified copies of Hughston's criminal history, including his guilty plea to aggravated assault concerning the 1990 incident. Moreover, Hughston's counsel acknowledged this aggravated assault conviction in Hughston's June 8, 2009 Answer in Opposition to the Mandatory Minimum Notice. We discern no support in the record for Hughston's bald claim that the Commonwealth never charged him with aggravated assault concerning the 1990 incident.
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Next, Hughston contends that the PCRA court improperly dismissed his PCRA Petition because his trial and appellate counsel rendered ineffective assistance by failing to raise the issue that Hughston allegedly was never charged with aggravated assault as a result of the 1990 incident. See Brief for Appellant at 16-17. This claim does not entitle Hughston to relief, since "the fact that a petitioner's claims are couched in terms of ineffectiveness will not save an otherwise untimely petition from the application of the time restrictions of the PCRA." Commonwealth v. Edmiston , 65 A.3d 339, 349 (Pa. 2013) (citation omitted).
Finally, Hughston argues that the PCRA court erred by denying his Motion for Recusal because "there is substantial doubt as to the ability of [Judge Capuzzi] to preside impartially ...." Brief for Appellant at 19. Specifically, Hughston points to the fact that Judge Capuzzi initially appointed Attorney Molineaux to represent Hughston, but subsequently ruled that Hughston was not entitled to appointed counsel in connection with his fourth PCRA Petition. Id .
We discern no abuse of discretion or error by the PCRA court in this regard. As noted above, Attorney Molineaux was appointed as a result of a clerical error. See PCRA Court Opinion, 11/20/14, at 5. Moreover, an indigent PCRA petitioner is not entitled to the appointment of counsel on a second or subsequent PCRA petition where the petition is dismissed without an evidentiary hearing. See Pa.R.Crim.P. 904(D); Commonwealth v. Jackson , 965 A.2d 280, 283-84 (Pa. Super. 2009).
In sum, we conclude that the record supports the PCRA court's dismissal of Hughston's fourth PCRA Petition, and discern no error of law. Additionally, we conclude that the PCRA court properly denied Hughston's Motion to Recuse.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015