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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHELDON CULBREATH
Appellant No. 2234 EDA 2014
Appeal from the PCRA Order July 9, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0016474-1996
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 23, 2015
Sheldon Culbreath (“Appellant”) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. After careful review, we affirm.
On February 3, 1998, the trial court convicted Appellant of possession
of a controlled substance with intent to deliver,1 corrupt organizations,2 and
conspiracy.3 On April 2, 1998, the trial court sentenced Appellant to an
aggregate sentence of 17½ to 50 years’ incarceration. This Court affirmed
Appellant’s judgment of sentence on January 15, 1999.
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1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 911.
3
18 Pa.C.S. § 903.
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Appellant filed a timely PCRA petition on November 9, 2000. The
PCRA court held a hearing on April 3, 2003, and denied the PCRA petition on
April 24, 2003. This Court affirmed the denial of PCRA relief on February 3,
2004. On January 18, 2005, the Supreme Court of Pennsylvania denied
Appellant’s petition for allowance of appeal.
Appellant filed a second PCRA petition on July 31, 2013. The PCRA
court dismissed the petition as untimely on August 26, 2013. Appellant did
not appeal.
On June 16, 2014, Appellant filed the instant PCRA petition, his third,
claiming that his sentence was illegal because it was greater than the
sentence his co-defendant received. On June 18, 2014, pursuant to
Pa.R.Crim.P. 907, the PCRA court issued notice of its intent to dismiss the
petition without a hearing. On July 8, 2014, Appellant responded to the Rule
907 notice, reiterating the petition’s claims. The PCRA court dismissed the
petition on July 9, 2014. This timely appeal followed.4
On appeal, Appellant presents the following issues for our review:
1. DID THE SUPREME COURT ALLEYNE RULING ANNOUNCED IN
COMMONWEALTH V. NEWMAN CREATE A TIMELINESS
EXCEPTION FOR PCRA PETITIONERS AS THEIR SENTENCE IS
UNCONSTITUTIONAL JUST AS THE DIRECT APPEAL DEFENDAT’S;
AND MAY APPELLANT BENEFIT FROM THE NEW RULE
ANNOUNCEMENT THAT WAS RENDERED WHILE BEFORE THIS
COURT AND A REMAND IS REQUIRED FOR THE PCRA COURT TO
WEIGH IN ON THIS CONSTITUTIONAL RIGHT VIOLATION IN THE
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4
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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FIRST INSTANCE WHERE APPELLANT WAS TO RECEIVE A 5 TO
10 AS A MATTER OF LAW BUT RECEIVED A 17½ TO 50 YEAR
SENTENCE THAT IS UNCONSTITUTIONAL?
2. DID THE NEWMAN RULING SAVE AN UNCONSTITUTIONAL
COMMONWEALTH V. CRUZ VIOLATION WHEREIN THE ISSUES
ARE ESSENTIALLY ONE IN THE SAME WHEREIN A PPCRA
PETITIONER IS ENTITLED TO THE SAME SENTENCE AS HIS
CODEFENDANT UNDER THE EQUAL PROTECTION DUE PROCESS
CLAUSE?
Appellant’s Brief, p. 5 (verbatim).
Our well-settled standard of review for orders denying PCRA relief is
“to determine whether the determination of the PCRA court is supported by
the evidence of record and is free of legal error. The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192
(Pa.Super.2013) (internal quotations and citations omitted).
We must first consider the timeliness of the petition. “It is undisputed
that a PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa.Super.2013); 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 a petition.” Hernandez, 79 A.3d at
651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). 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
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the review.” 42 Pa.C.S. § 9545(b)(3). However, a facially untimely petition
may be received where any of the PCRA’s three limited exceptions to the
time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote
omitted). These exceptions include:
(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)(1)(i)-(iii). As our Supreme Court has repeatedly
stated, the petitioner maintains the burden of pleading and proving that one
of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,
[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 651-652 (internal quotations omitted).
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Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or
subsequent request for relief under the PCRA will not be entertained unless
the petitioner presents a strong prima facie showing that a miscarriage of
justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,
1251 (Pa.2006). Additionally, in a second or subsequent post-conviction
proceeding, “all issues are waived except those which implicate a
defendant’s innocence or which raise the possibility that the proceedings
resulting in conviction were so unfair that a miscarriage of justice which no
civilized society can tolerate occurred”. Commonwealth v. Williams, 660
A.2d 614, 618 (Pa.Super.1995).
On January 15, 1999, this Court affirmed Appellant’s judgment of
sentence. Appellant did not file a petition for allowance of appeal to the
Supreme Court of Pennsylvania, and his sentence became final at the
expiration of his time to seek review thirty days later, on February 16,
1999.5 See 42 Pa.C.S. § 9545(b)(3). Accordingly, Appellant had until
February 16, 2000 to timely file a PCRA petition.
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5
The thirtieth day fell on February 14, 1999, a Sunday. The following
Monday was Presidents’ Day, a holiday. Accordingly, Appellant had until
Tuesday, February 16, 1999 to timely file a petition for allowance of appeal
to the Supreme Court of Pennsylvania.
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Appellant filed the instant petition on June 16, 2014, over fourteen
years after the expiration of his PCRA limitations period. Accordingly,
Appellant’s petition is facially untimely. Thus, he must plead and prove that
his petition falls under one of the Section 9545 exceptions set forth in the
PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant’s PCRA petition,
however, makes no attempt to plead or prove any of the three time bar
exceptions. To the extent Appellant’s brief suggests the Supreme Court of
the United States’ decision in Alleyne v. United States, -- U.S. ---, 133
S.Ct. 2151 (2013),6 provides a time bar exception, Appellant was required to
plead and prove such a time bar exception in his PCRA petition. See Abu-
Jamal, 941 A.2d at 1268. The PCRA petition itself includes no discussion
whatsoever of Alleyne, even though the Supreme Court of the United States
decided Alleyne nearly one full year before Appellant filed his PCRA
petition.7 Instead, Appellant did not discuss Alleyne until his appellate
brief. As a result, Appellant has waived any time bar exception Alleyne
could have afforded. See Commonwealth v. Burton, 936 A.2d 521, 525
(Pa.Super.2007) (“exceptions to the [PCRA] time bar must be pled in the
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6
In Alleyne, the Supreme Court of the United States held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S.Ct. at 2155.
7
The Supreme Court of the United States decided Alleyne on June 17,
2013.
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PCRA petition, and may not be raised for the first time on appeal”); see
also Pa.R.A.P. Rule 302(a) (issues not raised in the lower court are waived
and cannot be raised for the first time on appeal). Additionally, Appellant
failed to file the instant petition within 60 days of Alleyne, and therefore
could not rely on Alleyne for a PCRA time-bar exception. See 42 Pa.C.S. §
9545(b)(2) (petitions invoking exceptions must be filed within 60 days of the
date the claim could have been presented). Further, neither the Supreme
Court of the United States nor the Supreme Court of Pennsylvania has held
Alleyne to apply retroactively to matters on collateral appeal, and therefore
Alleyne would not have provided Appellant with a time-bar exception, even
if properly pleaded in his petition.
Because Appellant did not properly plead or prove a time-bar
exception based on Alleyne, because Alleyne does not provide a time-bar
exception, and because Appellant’s petition neither pleads nor proves any
other exception, the petition remains time-barred.
Additionally, the sole claim contained in the instant PCRA petition –
that Appellant is entitled to the same sentence his co-defendant received8 –
neither implicates Appellant’s actual innocence nor raises the possibility that
the proceedings were so unfair that a miscarriage of justice which no
civilized society can tolerate occurred. See Williams, supra.
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8
See PCRA petition, June 16, 2014, p. 1.
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Further, we note that Appellant’s underlying claim lacks merit. Simply
stated, “[t]he law is well-settled that co-defendants are not required to
receive identical sentences.” Commonwealth v. Mastromarino, 2 A.3d
581, 589 (Pa.Super.2010). The fact that Appellant’s co-defendant received
a lesser sentence does not render his sentence illegal.9
Because Appellant filed the instant PCRA petition over fourteen years
after the expiration of the PCRA limitations period and cannot avail himself
of any time-bar exceptions, the PCRA court did not err in dismissing this
petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2015
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9
We note that, although never waived, illegal sentence claims remain
subject to the PCRA’s timeliness requirements. See Commonwealth v.
Jackson, 30 A.3d 516, 521-22 (Pa.Super.2011).
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