J-S50018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES J. BURDEN
Appellant No. 2699 EDA 2014
Appeal from the Order July 23, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007263-2007
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 21, 2015
Appellant, James J. Burden, appeals, pro se, from the July 23, 2014
order dismissing, as untimely, his second petition for relief filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
We summarize the relevant procedural history from the certified
record in this case as follows. On March 19, 2008, Appellant entered into an
open guilty plea to six counts of manufacture, delivery, or possession with
intent to deliver a controlled substance, five counts of dealing in unlawful
proceeds, and one count each of corrupt organizations (employee), criminal
conspiracy, criminal use of a communication facility, criminal attempt to
manufacture or deliver, criminal conspiracy to engage in corrupt
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organizations, criminal conspiracy to aid, and possession of marijuana.1
Immediately thereafter, the trial court imposed an aggregate judgment of
sentence of 18½ to 50 years’ imprisonment. On March 27, 2008, Appellant
filed a timely post-sentence motion, which the trial court denied on August
11, 2008. Appellant did not appeal his sentence to this Court.
On November 14, 2008, Appellant timely filed his first PCRA petition.
Appellant was appointed counsel, and the PCRA court conducted a hearing
on Appellant’s petition on July 21, 2009. The next day, July 22, 2009,
Appellant agreed to withdraw his PCRA petition and motioned, instead, for
reconsideration of his sentence nunc pro tunc, to which the Commonwealth
agreed. Immediately thereafter, Appellant and the Commonwealth entered
into a negotiated guilty plea, under which the trial court vacated Appellant’s
March 19, 2008 judgment of sentence and resentenced Appellant to an
aggregate judgment of sentence of 12 to 28 years’ imprisonment, followed
by 12 years’ probation. N.T., 7/22/09, at 3-12. Appellant did not file a
timely post-sentence motion or a direct appeal to this Court.
On August 20, 2009, Appellant did, however, file, pro se, an untimely
post-sentence motion to vacate or reconsider the fines, costs, and restitution
nunc pro tunc. See Pa.R.Crim.P. 720(A)(1) (providing that a post-sentence
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1
35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 5111(a)(1), 911(b)(3),
911(b)(4), 7512(a), 901(a), 903(a)(1), 903(a)(2), and 35 P.S. § 780-
113(a)(31), respectively.
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motion must be filed within ten days of the imposition of sentence). The
trial court did not expressly grant nunc pro tunc relief before Appellant’s
sentence became final on August 21, 2009. Therefore, Appellant’s untimely
post-sentence motion did not toll the appeal period. See Commonwealth
v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (explaining that a post-
sentence motion nunc pro tunc filed within the 30-day appeal period may toll
the appeal period if the appellant properly requests nunc pro tunc relief, and
the trial court expressly permits the filing within the appeal period), citing
Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en
banc). The trial court ultimately denied the post-sentence motion on
October 19, 2009. Appellant did not appeal that denial to this Court.
On October 12, 2012, Appellant filed, pro se, a motion for modification
of sentence. The PCRA court treated it as Appellant’s first PCRA petition and
appointed counsel. On November 1, 2013, following a hearing, the PCRA
court denied Appellant’s petition. On December 12, 2013, Appellant filed an
appeal to this Court, and this Court affirmed Appellant’s judgment of
sentence on June 24, 2014. Commonwealth v. Burden, 105 A.3d 43 (Pa.
Super. 2014) (unpublished memorandum). Appellant did not file a petition
for allowance of appeal with our Supreme Court.
Thereafter, on July 14, 2014, Appellant filed, pro se, the instant PCRA
petition. The PCRA court denied Appellant’s petition without a hearing on
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July 23, 2014. On August 19, 2014, Appellant filed a timely notice of
appeal.2
On appeal, Appellant raises the following five issues for our review.
A. Whether the sentence in this case is illegal and
violates the Sixth Amendment to the United
States Constitution because the sentencing
[court] relied upon conduct not found by a [j]ury
or admitted in a plea?
B. Whether the [p]etition in this case was timely
filed pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i) and
(ii)?
C. Whether under Teague v. Lane, 489 U.S. 288
(1989) and its progeny the United States
Supreme Court’s decision in Alleyne v. United
States, 133 U.S. 2151 (2013) should be applied
retroactively?
D. Whether the [a]pplication of the [m]andatory
[p]rovision in sentencing, now determined to be
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2
Although Appellant’s notice of appeal was docketed on August 21, 2014,
the envelope that the notice of appeal was mailed in is dated August 19,
2014. Under the prisoner mailbox rule, “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) (citation
omitted), appeal denied, 46 A.3d 715 (Pa. 2012). As a result, we deem
Appellant’s notice of appeal filed on August 19, 2014, and therefore timely.
See Pa.R.A.P. 903(a) (providing that a notice of appeal must be filed within
30 days). We further note that while the clerk of courts found his notice of
appeal defective, that has no effect on its timeliness. See Pa.R.A.P. 902
(providing that the “[f]ailure of an appellant to take any step other than the
timely filing of a notice of appeal does not affect the validity of the
appeal…[]”). Appellant cured those defects on September 4, 2014.
Moreover, the PCRA court did not order Appellant to file a concise statement
of matters complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b), and the PCRA court authored an opinion on
January 7, 2015.
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unconstitutional, vitiates the sentence and
eliminates all question of waiver, timeliness and
due diligence as bars to the relief sought?
E. Whether having declared the [m]andatory
provision relied upon herein illegal, allowing
Appellant to continue to suffer that sentence
constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United
States Constitution?
Appellant’s Brief at 3.
We begin by noting our well-settled standard of review. “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. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Before we may address the merits of Appellant’s arguments, we must
first consider the timeliness of Appellant’s PCRA petition because it
implicates the jurisdiction of this Court and the PCRA court.
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Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation
omitted). Pennsylvania law makes clear that 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. 2014)
(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for
filing a PCRA petition is not subject to the doctrine of equitable tolling;
instead, the time for filing a PCRA petition can be extended only if the PCRA
permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.
2014) (internal quotation marks and citation omitted), cert. denied, Ali v.
Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord finality to the
collateral review process.” Commonwealth v. Watts, 23 A.3d 980, 983
(Pa. 2011) (citation omitted). “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.A. § 9545(b)(1)(i), (ii), and (iii), are met.” Commonwealth v.
Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted). The PCRA
provides, in relevant part, as follows.
§ 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
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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.A. § 9545(b)(1)-(2).
Here, Appellant was sentenced on July 22, 2009, and did not file a
direct appeal with this Court. As a result, Appellant’s judgment of sentence
became final on August 21, 2009, when the time for Appellant to file a notice
of appeal to this Court expired. See id. § 9545(b)(3) (stating, “a judgment
becomes final at the conclusion of direct review, including discretionary
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review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review[]”).
Accordingly, Appellant had until August 21, 2010 to file a timely PCRA
petition. See id. § 9545(b)(1) (providing that a PCRA petition must be filed
within one year of the judgment of sentence becoming final to be considered
timely). Therefore, Appellant’s present July 14, 2014 petition was facially
untimely. See id. However, Appellant asserts that two time-bar exceptions
apply in this case. Specifically, Appellant raises the governmental
interference and the newly discovered fact exceptions to the time-bar.
Appellant’s Brief at 9-10. We conclude that Appellant’s alleged basis for
invoking these exceptions, the United States Supreme Court’s decision in
Alleyne, does not satisfy the requirements of either exception.
First, in order to meet the statutory requirements of the governmental
interference exception, “[the] [a]ppellant [is] required to plead and prove
that his failure to raise the claim previously was the result of interference by
government officials with the presentation of the claim [or claims] in
violation of the Constitution or laws of this Commonwealth or the
Constitution or laws of the United States….” Commonwealth v. Chester,
895 A.2d 520, 523 (Pa. 2006) (internal quotation marks and citation
omitted; emphasis in original).
In his brief, Appellant attempts to invoke the governmental
interference exception based on Alleyne with the following argument.
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The evidence which the instant petition rests [on]
was within the knowledge and control of the
sentencing [c]ourt, specifically, that the facts relied
upon in imposing the mandatory provision at
sentencing were judicially found and unavailable to
Appellant until Alleyne was decided and
subsequently clarified by the Blair County Court of
Common Pleas.
Appellant’s Brief at 9. Appellant’s argument does not fit into the
governmental interference exception. Appellant did not plead any
affirmative interference by a government official that prevented him from
bringing a claim that his mandatory minimum sentence was unconstitutional.
Instead, Appellant had knowledge of the facts the sentencing court relied
upon in imposing the sentence because those facts were available to him
prior to his plea, at the time of his plea, and at the sentencing hearing when
the sentencing court disclosed the basis for its sentencing decision in open
court. Moreover, the Alleyne decision was announced in the course of the
normal judicial process; Appellant does not allege that a government official
interfered with his ability to discover Alleyne or bring a claim based on
Alleyne. Therefore, Appellant has failed to plead a proper claim of
governmental interference, and his PCRA petition is untimely on this basis.
See Chester, supra.
Likewise, our Supreme Court has previously described a petitioner’s
burden under the newly discovered evidence exception as follows.
[S]ubsection (b)(1)(ii) has two components, which
must be alleged and proved. Namely, the petitioner
must establish that: 1) “the facts upon which the
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claim was predicated were unknown” and 2) “could
not have been ascertained by the exercise of due
diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
added).
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in
original).
Similar to his governmental interference claim, Appellant alleges that
the Alleyne decision constitutes a newly discovered fact. Appellant’s Brief
at 10. It is well settled, however, that a judicial decision is not a “fact” for
purposes of satisfying the newly discovered facts exception to the PCRA
time-bar. Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011); accord
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013). Accordingly, as Alleyne is not a fact, and
Appellant has not pled or proven any other newly discovered facts that
would meet the time-bar exception in Section 9545(b)(1)(ii), his PCRA
petition is untimely on this basis.3 See Watts, supra.
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3
We note that Appellant does not invoke the time-bar exception in Section
9545(b)(1)(iii), the newly recognized constitutional right exception. Even if
he did, his claim would fail because this court has held that Alleyne does
not satisfy the new constitutional right exception to the time-bar.
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
Moreover, neither our Supreme Court nor the United States Supreme Court
has held that Alleyne is retroactive to cases on collateral review. See 42
Pa.C.S.A. § 9545(b)(1)(iii) (providing a time-bar exception for “a
constitutional right that was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania … and has been held by that
court to apply retroactively[]”).
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Based on the foregoing, the PCRA court properly denied Appellant’s
second PCRA petition because it was untimely filed.4 Accordingly, we affirm
the PCRA court’s July 23, 2014 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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4
Even if Appellant were able to overcome the PCRA time-bar, his claim
would fail because this Court has held that Alleyne does not apply
retroactively on collateral review to judgments of sentence that became final
before Alleyne was announced. Commonwealth v. Riggle, --- A.3d ---,
2015 WL 4094427, at *4-6 (Pa. Super. 2015) (noting Alleyne applies
retroactively to cases pending on direct appeal, but concluding that Alleyne
did not announce a substantive or watershed constitutional procedural rule,
and therefore, is not entitled to retroactive application in the PCRA setting).
As Appellant’s sentence became final on August 21, 2009, before Alleyne
was announced on June 17, 2013, he is not entitled to the retroactive
application of Alleyne on collateral review. See id. at *6.
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