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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ZANE COLBERT
Appellant No. 1518 MDA 2014
Appeal from the PCRA Order August 7, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002357-1992
CP-22-CR-0002358-1992
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JUNE 30, 2015
Zane Colbert appeals pro se from the order entered August 7, 2014, in
the Court of Common Pleas of Dauphin County that dismissed his petition
filed pursuant to the Post Conviction Relief Act (PCRA) 1. Colbert claims the
PCRA court erred by dismissing his PCRA petition as untimely filed. Based
upon the following, we affirm.
The PCRA court set forth the relevant procedural history in its opinion.
In May 1992, Colbert was arrested and charged with two
counts of Rape and Involuntary Deviate Sexual Intercourse. A
jury trial was held which resulted in a guilty verdict on all counts.
On May 16, 1994, Colbert was sentenced to an aggregate term
of incarceration of not less than thirty-two (32) nor more than
sixty four (64) years in a state correctional facility. The
Pennsylvania Superior Court affirmed his convictions and on July
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1
42 Pa.C.S. §§ 9541-9546.
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21, 1995, a petition for allowance of appeal was denied by the
Pennsylvania Supreme Court.
On April 3, 1996, [Colbert] filed his first PCRA Petition for
which he was appointed counsel. After counsel filed a
supplemental Petition on December 18, 1996, this Court
dismissed Colbert’s Petition without an evidentiary hearing on
April 11, 1997. The PCRA Court’s dismissal was affirmed by the
Pennsylvania Superior Court and the Pennsylvania Supreme
Court denied [Colbert’s] petition for allowance of appeal on
August 24, 1999.
Since that time, [Colbert] has filed multiple pro se PCRA
petitions none of which were granted.4 The instant PCRA, filed
on June 23, 2014, is [Colbert’s] fifth PCRA Petition. On August
5, 2014, the Commonwealth filed an Answer to Colbert’s
Petition. This Court dismissed [Colbert’s] Petition without a
hearing on August [7], 2014. On September 10, 2014, [Colbert]
filed a Notice of Appeal with the Pennsylvania Superior Court.5
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4
PCRA filed on 8/15/00 - denied and dismissed as
untimely on 8/17/00. Affirmed by Superior Court on
9/9/02. PCRA file[d] on 5/7/03 - denied and dismissed as
untimely on 6/2/03. PCRA filed on 12/26/07 - denied and
dismissed as untimely on 3/24/08.
5
This Court notes that [Colbert] failed to serve the Notice
of Appeal on the judge of the trial court as required by
Pa.R.A.P. 906(a)(2).
PCRA Court Opinion, 12/02/2014, at 1-2 (some footnotes omitted).
Our standard of review is as follows:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision 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. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
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It is undisputed that 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); Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013) (citation omitted). 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, supra, 79 A.3d at 651.
Generally, a PCRA petition must be filed within one year from the
date a judgement becomes final. 42 Pa.C.S.A. § 9545(b)(1).
There are three exceptions to this time requirement: (1)
interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized
constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i-iii). When a
petitioner alleges and proves that one of these exceptions is
met, the petition will be considered timely. See
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d
780, 783 (Pa. 2000). A PCRA petition invoking one of these
exceptions must “be filed within 60 days of the date the claims
could have been presented.” Id. (quoting 42 Pa.C.S.A. §
9545(b)(2)). The timeliness requirement of the PCRA are
jurisdictional in nature and, accordingly, a PCRA court cannot
hear untimely petitions. Commonwealth v. Robinson, 575 Pa.
500, 837 A.2d 1157, 1161 (Pa. 2003).
Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa. Super. 2012).
Colbert does not dispute that his present PCRA petition is facially
untimely. He claims, however, that his petition falls within two exceptions to
the PCRA’s time bar, namely, the newly discovered facts exception and the
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after-recognized constitutional right exception.2 In pleading both
exceptions, Colbert relies on the United States Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013).3 We conclude,
however, no relief is due.
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2
The relevant exceptions to the PCRA time bar are set forth in Section
9545(b)(1)(i)-(iii), as follows:
(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:
****
(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 that court to apply retroactively
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1)(i)-(iii), (b)(2) (emphasis supplied).
3
Colbert additionally relies on Commonwealth v. Hopkins (2015), in
which Colbert claims, the Pennsylvania Supreme Court held that Alleyne
applies retroactively to PCRA petitioners. Colbert’s PCRA Petition, 2/6/2014,
at 7. Colbert provides no citation to this decision. If Colbert is referring to
Commonwealth v. Hopkins, ___ A.3d ___ [98 MAP 2013] (Pa. June 15,
(Footnote Continued Next Page)
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In Alleyne v. United States, 133 U.S. 2151 (2013), the United
States Supreme Court held “[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.” Id. at 2155. Applying this mandate, this Court has
held that Alleyne renders unconstitutional mandatory minimum sentencing
statutes that permit the trial court to increase a defendant’s minimum based
upon a preponderance of the evidence standard. See Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (finding 42 Pa.C.S. §
9712.1 unconstitutional).
Here, after a jury convicted Colbert of two counts of rape and
involuntary deviate sexual intercourse, the trial court sentenced him to an
aggregate term of 32 to 64 years’ incarceration. Colbert claims the “fact of
whether or not [Colbert] actually had a gun should of [sic] been found by a
jury and not by a preponderance of evidence by trial Judge.” Colbert’s brief,
at 8. He alleges that his “sentence is unconstitutional and illegal.” Id.
Colbert’s petition does not satisfy either of the PCRA exceptions for
newly discovered facts or an after-recognized constitutional right. “Our
Courts have expressly rejected the notion that judicial decisions can be
considered newly-discovered facts which would invoke the protections
_______________________
(Footnote Continued)
2015), which was decided while Colbert’s appeal was pending before this
Court, we note that this decision does not address the issue of retroactive
application of Alleyne to a PCRA petition.
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afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa. Super. 2013) (citation omitted). Therefore, Alleyne, a
judicial decision, is not a “fact” that satisfies Section 9545(b)(1)(ii).
As the PCRA court correctly pointed out, a PCRA petitioner may not
rely upon the decision of the Supreme Court in Alleyne to avail himself of
the exception to the time requirements of the PCRA codified at
§ 9545(b)(1)(iii). See PCRA Court Opinion, 12/2/2014, at 5, citing
Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014). In Miller, a
panel of this Court concluded that Alleyne was an extension of the line of
cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), and
further:
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 in those
cases. Therefore, Appellant has failed to satisfy the new
constitutional right exception to the time bar.
Miller, 102 A.3d at 995 (citations omitted) (footnote omitted).4
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4
In any event, it appears Colbert was sentenced pursuant to a deadly
weapon enhancement, not mandatory minimum. See 204 Pa. Code
§ 303.10(a)(3)(i)-(ix). In deadly weapon enhancement cases, this Court
has held Alleyne has no application.
(Footnote Continued Next Page)
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Because Colbert’s PCRA petition is time-barred, and he is unable to
demonstrate the applicability of a statutory exception to the timing
requirements of the Post Conviction Relief Act, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
_______________________
(Footnote Continued)
The sentencing enhancements only direct a sentencing court to
consider a different range of potential minimum sentences, while
preserving a trial court’s discretion to fashion an individual
sentence…. The enhancements do not bind a trial court to any
particular sentencing floor, nor do they compel a trial court in
any given case to impose a sentence higher than the court
believes is warranted. They require only that a court consider a
higher range of possible minimum sentences…. Thus, Alleyne
has no application to the enhancements.
Commonwealth v. Ali, 112 A.3d 1210, 1225-1226 (Pa. Super. 2015).
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