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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KEVIN J. MILLER, :
:
Appellant : No. 1889 MDA 2014
Appeal from the PCRA Order September 3, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division No(s).: CP-22-CR-0001074-1997
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 28, 2015
Appellant, Kevin J. Miller, appeals pro se from the September 3, 2014
order dismissing his sixth petition for relief filed pursuant to the Post
Conviction Relief Act1 (“PCRA”). Appellant argues the imposition of a
mandatory minimum five years’ incarceration constitutes an illegal sentence
under Alleyne v. United States, 133 S. Ct. 2151 (2013). We affirm.
The PCRA court summarized the facts underlying Appellant’s appeal:
On February 10, 1998, Appellant [pleaded] guilty to Rape,
Involuntary Deviate Sexual Intercourse, Indecent Assault,
Corruption of Minors, and Statutory Sexual Assault.
[Sentencing] was deferred to a later date. The
Commonwealth and Appellant’s trial counsel presented a
preliminary proposal for a plea agreement to the [court],
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541–9546.
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which the [court] found to be unacceptable. The final plea
agreement was then resubmitted to the [court] and
received the [court’s] approval. On November 16, 1998,
[the trial court sentenced Appellant] to an aggregate term
of [five] to [twenty] years’ incarceration at a state
correctional institution, followed by [twenty] years of
conditional probation. No direct appeal was taken.
PCRA Ct. Op., 12/3/14, at 1 (footnotes omitted). Relevant to this appeal,
five years’ incarceration is the mandatory minimum sentence pursuant to 42
Pa.C.S. § 9718.2
Appellant filed the instant PCRA petition, his sixth, on June 20, 2014.
The PCRA court entered an order dismissing Appellant’s petition on
September 3, 2014. Appellant filed his notice of appeal on October 2,
2014,3 and the court received this notice on October 8th. The PCRA court
did not direct Appellant to file a concise statement of errors on appeal.
On appeal, Appellant raises two issues for our review:
WHETHER THE PCRA COURT IMPROPERLY DISMISSED
APPELLANT’S PCRA PETITION WITHOUT A HEARING AS A
MATTER OF LAW AND CONSTITUTION, WHERE APPELLANT
WAS SENTENCED TO A MANDATORY MINIMUM SENTENCE
UNDER [42 Pa.C.S. § 9178], A STATUTE DECLARED
UNCONSTITUTIONAL UNDER [Alleyne v. United States,
133 S. Ct. 2151 (2013)] and [Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014)], MAKING
APPELLANT’S SENTENCE ILLEGAL?
2
Sentences for offenses against infant persons.
3
“[I]n the interest of fairness, the prisoner mailbox rule provides that a pro
se prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011).
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WHETHER APPELLANT’S MANDATORY MINIMUM SENTENCE
UNDER [42 Pa.C.S. § 9718,] A STATUTE DECLARED
UNCONSTITUTIONAL AND VOID[,] IS ILLEGAL?
Appellant’s Brief at 9, 21.
Appellant argues that his petition is timely pursuant to the time-bar
exception of 42 Pa.C.S. § 9545(b)(1)(ii).4 Appellant’s Brief at 13. Appellant
avers that a newspaper article5 (“the Article”), which details the
constitutional right newly recognized by the Supreme Court of the United
States under Alleyne, is after-discovered evidence.6 Id. at 14-15. The
Article quotes and provides information given by the Berks County District
Attorney’s Office, detailing the decision of the Supreme Court in Alleyne and
the office’s intent to no longer pursue mandatory minimum sentences. Id.
at Ex. B. He puts forth that the article is not hearsay as the information
within the Article is accurate and the author cites to specific Superior Court
rulings and decisions. Id. Appellant also contends that the United States
Supreme Court’s decision in Alleyne applies retroactively to his sentence.
4
“[T]he facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii).
5
Holly Herman, Mandatory Sentences Ruled Illegal, Reading Eagle, May 3,
2014.
6
Appellant notes that he filed the instant petition after discovering the “new
evidence” within the sixty day requirement pursuant to 42 Pa.C.S. §
9545(b)(2).
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Id. at 9-10. Appellant claims that his sentence is predicated on facts not
submitted to a jury, making it unconstitutional.
When analyzing the dismissal of a PCRA petition, “an appellate court’s
scope of review is limited by the PCRA’s parameters; since most PCRA
appeals involve mixed questions of fact and law, the standard of review is
whether the PCRA court’s findings are supported by the record and free of
legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).
Before we address the merits of Appellant’s arguments, however, we first
consider the timeliness of Appellant’s PCRA petition, as it implicates the
jurisdiction of both this Court and the PCRA court. Commonwealth v.
Davis, 86 A.3d 883, 887 (Pa. Super. 2014). “Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.”
Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citation
omitted).
“[When] a PCRA petition is untimely, neither this Court nor the trial
court has jurisdiction over the petition.” Commonwealth v. Seskey, 86
A.3d 237, 241 (Pa. Super.) (citations omitted) appeal denied, 101 A.3d 103
(Pa. 2014). “However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the three limited
exceptions to the time for filing the petition, set forth at [42 Pa.C.S. §
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9545(b)(1)(i)-(iii)] are met.” Commonwealth v. Lawson, 90 A.3d 1, 5
(Pa. Super. 2014).7 The PCRA provides, in relevant part:
§ 9545. Jurisdiction and proceedings
* * *
(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:
(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.
(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)-(2).
“[A] constitutional right newly recognized by the Supreme Court of the
United States is made retroactive to cases on collateral review only if that
7
Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2011).
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court specifically holds it to be retroactively applicable to cases on collateral
review.” Commonwealth v. Phillips, 31 A.3d 317, 320-21 (Pa. Super.
2011) (summarizing holding of Tyler v. Cain, 533 U.S. 656 (2001)). In
Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum [sentence] is an ‘element’ that must be submitted to
the jury.” Alleyne, 133 S. Ct. at 2155 (citations omitted). “[N]either 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.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014).
In the case sub judice, Appellant was sentenced on November 16,
1998. Appellant did not file a direct appeal. PCRA Ct. Op. at 1. Therefore,
Appellant’s judgment of sentence became final on December 16, 1998, when
the period for Appellant to file a notice of direct appeal expired. See 42
Pa.C.S. § 9545(b)(3) (“a judgment becomes final at the conclusion of direct
review . . . or at the expiration of time for seeking the review.”). Appellant
generally had until December 16, 1999, to file a timely PCRA petition. The
instant petition is patently untimely, as Appellant filed it on June 20, 2014,
nearly fifteen years past the deadline.
Appellant attempts to invoke the time-bar exception of 42 Pa.C.S. §
9545(b)(1)(ii), by presenting the Article as newly discovered evidence.
Regardless of whether the Article is newly discovered evidence, however,
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this Court has already held a newly recognized constitutional right is only
applicable on collateral review when the deciding court specifically holds it to
be retroactive to such cases. See Phillips, 31 A.3d at 320-21. As stated
above, neither our Supreme Court nor the United States Supreme Court has
held Alleyne applicable retroactively in cases where the judgment of
sentence had become final. See Miller, 102 A.3d at 995. Appellant’s
judgment of sentence became final on December 16, 1998. Thus,
Appellant’s argument fails, as Alleyne has not been held to apply to
Appellant’s case.8 See id.
We conclude that the PCRA court correctly dismissed Appellant’s sixth
PCRA Petition. Accordingly, the PCRA court’s September 3, 2014 order is
affirmed.
Appellant’s Application for Stay denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
8
The PCRA court noted that Appellant’s case is distinguished from Alleyne,
as Appellant pleaded guilty and was not involved in a jury trial. PCRA Ct.
Op. at 4. The court reasoned that Appellant’s acceptance of a negotiated
plea agreement constituted a waiver of his Sixth Amendment right to a jury
trial, thus removing himself from the controlling precedent of Alleyne. Id.
As neither this Court nor the PCRA court have jurisdiction over the current
matter, we need not address the merits of the PCRA court’s reasoning.
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