Com. v. Frost, M.

J-S25032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MICHAEL ALLAN FROST,

Appellant No. 1663 WDA 2014

Appeal from the PCRA Order September 3, 2014
in the Court of Common Pleas of Crawford County
Criminal Division at No.: CP-20-CR-0001288-1999

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 10, 2015

Appellant, Michael Allan Frost, appeals pro se from the order

dismissing his tenth petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

A previous panel of this Court set forth the relevant factual and

procedural history of this case as follows:

On March 10, 2000, Appellant entered guilty pleas to three
counts of involuntary deviate sexual intercourse [(IDSI)] and
two counts of endangering the welfare of children after he
engaged in improper conduct with his five children. [On May 23,
2000,] [t]he trial court [entered an order] sentenc[ing] Appellant

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*
Retired Senior Judge assigned to the Superior Court.
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to an aggregate term of sixteen to thirty-two and one-half years
of imprisonment.[1] Appellant did not file a direct appeal.

Subsequently, Appellant . . . filed a plethora of writs,
motions and PCRA petitions in a series of unsuccessful attempts
to overturn his conviction[s]. . . .

(Commonwealth v. Frost, No. 1969 WDA 2013, unpublished memorandum

at *1-2 (Pa. Super. filed May 6, 2014) (citations and quotation marks

omitted)).

On August 5, 2014, Appellant, acting pro se, filed the instant PCRA

petition, his tenth, alleging, inter alia, that his sentence is illegal based on

the United States Supreme Court’s decision in Alleyne v. United States,

133 S. Ct. 2151, 2155 (2013) (holding that, to comply with dictates of Sixth

Amendment, facts that increase mandatory minimum sentence are elements

of offense and must be submitted to jury and proven beyond reasonable

doubt). (See PCRA Petition, 8/05/14, at 3). On August 11, 2014, the PCRA

court entered a memorandum and order advising the parties of its intent to

dismiss the petition as untimely without a hearing, and stating that

Appellant’s reliance on Alleyne is misplaced. (See Memorandum and Order,

8/11/14, at 1-3); see also Pa.R.Crim.P. 907(1). On September 3, 2014,

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1
The trial court imposed the mandatory minimum term of five years’
incarceration for each IDSI count, and ran the terms consecutively. (See
N.T. Sentencing Hearing, 5/19/00, at 8, 23-25; Sentencing Order, 5/23/00,
at 1; Appellant’s Brief at 20); see also 42 Pa.C.S.A. § 9718 (mandatory
minimum sentence statute relating to IDSI).

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Appellant filed a pro se response. On that same date, the court entered its

order dismissing the PCRA petition. This timely appeal followed.2

On appeal, Appellant claims that the PCRA court erred in denying his

petition as untimely where the sentence he is serving is illegal. (See

Appellant’s Brief, at 2-22).3 We disagree.

Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine whether the
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2
Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on October 31, 2014. See
Pa.R.A.P. 1925(b). The PCRA court entered a Rule 1925(a) opinion on
November 13, 2014. See Pa.R.A.P. 1925(a).
3
We note that Appellant’s pro se brief falls well below the standards
delineated in the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P.
2111(a). Significantly, Appellant fails to include a statement of the
questions involved, statement of the case, or summary of the argument, in
violation of Pa.R.A.P. 2116-18. (See Appellant’s Brief, at 1-22). What
appears to be the argument section of his brief is not labeled as such or
divided into questions to be argued; it instead is separated into three
“grounds,” in violation of Pa.R.A.P. 2119. (See id. at 2-22). The arguments
contained in the brief are underdeveloped and nearly unintelligible. (See
id.). Although we could quash or dismiss this appeal for Appellant’s failure
to conform materially to the requirements set forth in our Rules of Appellate
Procedure, see Pa.R.A.P. 2101, we will address Appellant’s argument to the
extent we can discern it. See Commonwealth v. Adams, 882 A.2d 496,
498 (Pa. Super. 2005) (declining to quash appeal despite numerous
substantial defects in appellant’s brief).

We also note that “although this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251-
52 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (citation
omitted). Accordingly, a pro se litigant must comply with our procedural
rules. See id.

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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, 191-92 (Pa. Super. 2013)

(citations and quotation marks omitted).

“[W]e must first consider the timeliness of Appellant’s PCRA petition

because it implicates the jurisdiction of this Court and the PCRA court.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

In this case, Appellant’s judgment of sentence became final on June

22, 2000, thirty days after the trial court imposed its sentence and his time

for filing a timely direct appeal expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A.

§ 9545(b)(3). Therefore, he had one year from that date to file a petition

for collateral relief, specifically, until June 22, 2001. See 42 Pa.C.S.A. §

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9545(b)(1). Because Appellant filed the instant petition on August 5, 2014,

it is untimely on its face, and the PCRA court lacked jurisdiction to review it

unless he pleaded and proved one of the statutory exceptions to the time-

bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

(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.

Id. “If the [PCRA] petition is determined to be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). In

addition, a PCRA petition invoking one of these statutory exceptions must

“be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

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Here, Appellant claims the benefit of a newly-recognized retroactively-

applied constitutional right to relief predicated on the United States Supreme

Court’s decision in Alleyne, supra. (See Appellant’s Brief, at 11-22); see

also 42 Pa.C.S.A. § 9545(b)(1)(iii). He asserts that a challenge to the

legality of a sentence cannot be waived, and that Alleyne retroactively

applies to this case, rendering his untimely petition reviewable on the

merits. (See Appellant’s Brief, at 12-13). We disagree.

Initially, we reiterate that the exception set forth in section

9545(b)(1)(iii) applies only where “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.A. §

9545(b)(1)(iii).

Subsection (iii) of Section 9545 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 th[e Pennsylvania] Supreme Court 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. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011), appeal

denied, 38 A.3d 823 (Pa. 2012) (citations omitted).

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Instructive to the instant case is this Court’s decision in Miller, supra,

in which the appellant argued the applicability of section 9545(b)(1)(iii) to

his patently untimely PCRA petition. See Miller, supra at 993. Specifically,

the appellant averred that the Alleyne decision announced a new

constitutional right that applies retroactively to cases on collateral review.

See id. at 993-94. The Miller Court disagreed, explaining:

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. Therefore, Appellant has failed to satisfy the new
constitutional right exception to the time-bar.

We are aware that an issue pertaining to Alleyne goes to
the legality of the sentence. It is generally true that this Court is
endowed with the ability to consider an issue of illegality of
sentence sua sponte. However, in order for this Court to review
a legality of sentence claim, there must be a basis for our
jurisdiction to engage in such review. As this Court recently
noted, [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. As a
result, the PCRA court lacked jurisdiction to consider the merits
of Appellant’s second PCRA petition, as it was untimely filed and
no exception was proven.

Id. at 995-96 (quotation marks, footnote, and citations omitted).

In the instant case, although Appellant invokes section 9545(b)(1)(iii)

based on Alleyne, neither the United States Supreme Court nor our

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Supreme Court has held that Alleyne applies retroactively to cases on

collateral review. See id. at 995. “This is fatal to Appellant’s argument

regarding the PCRA time-bar.” Id.4 After review, we conclude Appellant has

not met his burden of proving his patently untimely petition fits within one of

the three limited exceptions to the PCRA’s jurisdictional time-bar. See

Jones, supra at 17.5 Accordingly, the PCRA court properly dismissed

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4
We note for the sake of completeness that in Commonwealth v. Wolfe,
106 A.3d 800 (Pa. Super. 2014), a case on direct appeal, a panel of this
Court held section 9718 of the Sentencing Code unconstitutional in light of
Alleyne, supra, and this Court’s decisions in Commonwealth v. Newman,
99 A.3d 86 (Pa. Super. 2014) (en banc) and Commonwealth v. Valentine,
101 A.3d 801 (Pa. Super. 2014). See Wolfe, supra at 805-06. However,
that decision has not been held to apply retroactively to cases on collateral
review.
5
To the extent that Appellant argues application of Alleyne pursuant to the
“after discovered facts” exception to the time-bar set forth in section
9545(b)(1)(ii), (see Appellant’s Brief, at 11), this argument also fails. Our
Supreme Court, in Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011),
expressly cautioned against confusing the concepts of “fact” and “law”, and
rejected the notion that a law can be considered a newly-discovered fact
capable of invoking the protections afforded by the PCRA’s after-discovered
facts exception. See Watts, supra at 986-87 (holding that “subsequent
decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)
of the PCRA”). Therefore, Appellant’s apparent assertion that publication of
the Alleyne decision qualifies as a previously unknown fact triggering the
timeliness exception set forth in section 9545(b)(1)(ii) fails.

We also note that the United States Supreme Court decided Alleyne
on June 17, 2013. Appellant filed the instant PCRA petition more than one
year later, on August 5, 2014. Therefore, Appellant has failed to comply
with the PCRA sixty-day rule. See 42 Pa.C.S.A. § 9545(b)(2). Appellant’s
petition would fail for this reason as well.

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Appellant’s petition as untimely with no exception to the time-bar pleaded or

proven.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2015

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