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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES H. HERB, III
Appellant No. 1569 MDA 2014
Appeal from the PCRA Order entered September 11, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0003100-2011
BEFORE: WECHT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2015
Appellant, James H. Herb, III, appeals from the September 11, 2014
order entered in the Court of Common Pleas of Luzerne County, denying his
amended petition for collateral relief pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.1
Appellant appeared before the Honorable Fred A. Pierantoni, III, on
July 30, 2012 and entered into a plea for failure to comply with Megan’s Law
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1
The record reflects that on October 7, 2014, a motions panel of this Court
issued a Rule to Show Cause why this appeal should not be dismissed
pursuant to Pa.R.A.P. 301(a)(1), which provides that no order is appealable
until it has been entered upon the trial court docket. By subsequent order
entered December 17, 2014, the motions panel acknowledged receipt of
Appellant’s response to the rule; discharged the show cause rule; and noted
the issue would be referred to the merits panel. Our review of the trial court
docket confirms the entry of the September 11, 2014 order as required by
Rule 301(a)(1). Therefore, the appeal is properly before us.
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III, which included the sexual offender registration requirements in effect at
the time. On September 11, 2012, Judge Pierantoni sentenced Appellant to
a minimum of 36 months and maximum of 72 months in a state correctional
institution. Appellant did not file a direct appeal from his judgment of
sentence.
On December 16, 2013, our Supreme Court ruled that Megan’s Law III
was unconstitutional because Act 152 of 2004 (Act 152), which included the
provisions of Megan’s Law III, violated the Single Subject Rule of Article III,
Section 3, of the Pennsylvania Constitution. Commonwealth v. Neiman,
84 A.3d 603 (Pa. 2013). The Court directed that its decision be stayed for
90 days to afford the Legislature an opportunity “to consider appropriate
remedial measures, or to allow for a smooth transition period.” Id. at 616
(citation omitted).2 Therefore, the decision was effective on March 15,
2014.
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2
The Court explained:
[A]s we have observed previously in striking down other
legislation which violated Article III, Section 3, nothing precludes
the General Assembly from enacting similar provisions in a
manner consistent with the Constitution. However, since we find
merit in the General Assembly's suggestion that our decision
abrogating the entirety of Act 152 will have a significant impact
on a wide variety of individuals and entities which have ordered
their affairs in reliance on its provisions, we will stay our
decision, as we have done under similar circumstances, in order
to provide a reasonable amount of time for the General
(Footnote Continued Next Page)
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Fifty-eight days later, on May 12, 2014, the Luzerne County Public
Defender’s Officer filed a PCRA petition on Appellant’s behalf. The office filed
an amended petition on July 18, 2014 that included Appellant’s requisite
verification and consent. A hearing on the petition was held on September
11, 2014. At the conclusion of the hearing, Judge Pierantoni, who was also
the PCRA court judge, denied Appellant’s petition. This timely appeal
followed in which Appellant presents one issue for our consideration:
Whether the [PCRA] court erred in denying [Appellant’s] Petition
for Post-Conviction Relief where [Appellant] is currently serving
an illegal sentence and is incarcerated in violation of the due
process clauses of both the Constitution of the United States and
the Constitution of the Commonwealth of Pennsylvania?
Appellant’s Brief at 2.
In essence, Appellant argues that the Megan’s Law III provisions under
which he was sentenced are void ab initio, rendering his sentence
unconstitutional because the offense for which he was sentenced never
existed. Appellant does not dispute that he entered a guilty plea to a
violation of the reporting requirements of Megan’s Law III in effect when he
entered his plea and was sentenced. Simply stated, he is attempting to play
a “Get Out of Jail Free” card by claiming Neiman should be applied
retroactively.
_______________________
(Footnote Continued)
Assembly to consider appropriate remedial measures, or to allow
for a smooth transition period.
Id. at 616 (citations, quotations and ellipses omitted).
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Appellant looks to this Court’s ruling in Commonwealth v. Michuck,
686 A.2d 403 (Pa. Super. 1996), in which we vacated a conviction under the
Vehicle Code because, while the appeal was pending, our Supreme Court
struck down a subsection of the Code under which Michuck was convicted.3
We recognized that “[a] court does not have power to enforce a law which is
no longer valid.” Id. at 407. Similarly, Appellant relies on Commonwealth
v. Muhammed, 992 A.2d 897 (Pa. Super. 2010), in which we affirmed
Muhammed’s conviction for unauthorized transfer of sounds on recording
devices but sua sponte reversed his conviction for trademark counterfeiting
because our Supreme Court declared the trademark counterfeiting statute
unconstitutional.4 “If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction. An illegal
sentence must be vacated.” Id. at 903 (quoting Commonwealth v.
Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (en banc)).
Appellant’s reliance on Michuck and Muhammed is misplaced.
Unlike the case before us, which is a collateral proceeding under the PCRA,
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3
Michuck had been convicted under 75 Pa.C.S.A. § 3731(a)(5), which
imposed criminal penalties on individuals with a certain blood alcohol content
within three hours of driving, a provision our Supreme Court determined to
violate both state and federal due process guarantees in Commonwealth v.
Barud, 681 A.2d 162 (1996). See Michuck, 686 A.2d at 407.
4
In Commonwealth v. Omar, 981 A.2d 179 (Pa. 2009), our Supreme
Court struck down the criminal statute of trademark counterfeiting (18
Pa.C.S.A. § 4119) as unconstitutionally overbroad. See Muhammed, 992
A.2d at 903.
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both Michuck and Muhammed were pending on direct appeal when the
relevant statutes were declared unconstitutional.
As noted above, Appellant did not file a direct appeal from his
September 11, 2012 judgment of sentence. Therefore, his judgment
became final 30 days later, on October 11, 2012. He filed his first PCRA
petition on May 12, 2014.
It has been clearly established that the PCRA’s time limitations are
jurisdictional. See, e.g., Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999). With that in mind, we find this Court’s pronouncement in a recent
PCRA case, Commonwealth v. Callahan, 101 A.3d 118 (Pa. Super. 2014),
instructive. In Callahan, this Court began its review by stating:
“As a threshold jurisdictional matter, however, the timeliness of
the PCRA petition must be addressed. Even where neither party
nor the PCRA court have addressed the matter, it is well-settled
that we may raise it sua sponte since a question of timeliness
implicates the jurisdiction of our Court.” Commonwealth v.
Gandy, 38 A.3d 899, 902 (Pa. Super. 2012), appeal denied, 616
Pa. 651, 49 A.3d 442 (2012) (internal quotation marks and
citation omitted). Thus, we shall forego assessment of the
merits of the claim set forth in Appellant’s brief and, instead,
concentrate our attention on whether Appellant timely filed his
PCRA petition and, if not, whether he has raised a viable
statutory exception to the PCRA’s timeliness requirement. As
the timeliness of a PCRA petition is a question of law, our
standard of review is de novo and our scope of review is plenary.
See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super.
2013) (citations omitted).
Id. at 121.
42 PaC.S.A. § 9545(b) provides, in relevant part:
(b) Time for filing petition.—
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(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:
(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).
Appellant did not file a petition within one year of the time his
judgment became final. However, the petition was filed within 60 days of
the effective date of the Supreme Court’s decision in Neiman, satisfying the
requirement of § 9545(b)(2). Nevertheless, Appellant may not claim an
exception under § 9545(b)(1)(iii) unless he can prove a “constitutional right”
recognized in Neiman “has been held by [our Supreme Court] to apply
retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii).5
In Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our
Supreme Court considered whether a determination of retroactivity must
have already been made before a petitioner files a PCRA claiming a
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5
We note that Neiman involved a direct appeal, not a collateral attack
under the PCRA.
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“constitutional right” exception under § 9545(b)(1)(iii). The Court
explained:
In construing subsection (iii), as with any question of statutory
construction, we must begin with the Rules of Statutory
Construction. A statute’s words and phrases are to be construed
according to their common and approved usage, and where the
words of a statute are clear and free from ambiguity, the letter
of the statute may not be disregarded. See 1 Pa.C.S. §§
1903(a), 1921(b); Commonwealth v. MacPherson, 561 Pa.
571, 752 A.2d 384, 391 (2000).
Id. at 501. The Court continued:
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 this
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.
Id. After considering limitations on serial state collateral review not at
issue in our case, the Court concluded:
[W]e hold that the language “has been held” means that the
ruling on retroactivity of the new constitutional law must have
been made prior to the filing of the petition for collateral review.
We find further support for our conclusion today in a recent
United States Supreme Court case. Tyler v. Cain, 533 U.S.
656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). In Tyler, the
Court looked at a similar provision of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), which provided that the
petitioner must make “a prima facie showing” that his “claim
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relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.” Tyler, 533 U.S. at 660, 121 S.Ct. 2478
(quoting 28 U.S.C. § 2244(b)). Specifically, the Court was
called upon to interpret the phrase “made retroactive to cases on
collateral review by the Supreme Court.”
When reviewing the new constitutional rule in context, the Court
explained that the only way a new rule becomes retroactive was
simply by the action of the Supreme Court itself. Further, “the
only way the Supreme Court can, by itself ‘lay out and construct’
a rule’s retroactive effect . . . is through a holding.” Id. at 663,
121 S.Ct. 2478. Thus, the Court determined that a new rule of
constitutional law is not “made retroactive to cases on collateral
review” unless the Supreme Court has held it to be retroactive.
Id.
Id. at 501-02. “After reviewing the plain language of the subsection and
United States Supreme Court case law, we are persuaded that the language
‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity
determination must exist at the time that the petition is filed.” Id. at 502.
Appellant claims he is serving an illegal sentence and is incarcerated in
violation of his due process rights. His assertions are based upon our
Supreme Court’s ruling in Neiman, finding Act 152, which included the
Megan’s Law III provisions, unconstitutional. It is not necessary for us to
consider whether declaring Act 152 unconstitutional gives rise to a new
“constitutional right” because our review of Neiman confirms that the
Supreme Court did not direct that its decision was to apply retroactively. In
fact, the Court did not even discuss the effect of its decision on cases that
had become final before Neiman was decided. It cannot be said that the
right asserted by Appellant “has been held by [our Supreme Court] to apply
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retroactively.” Therefore, Appellant does not qualify for an exception under
§ 9545(b)(1) that can save his PCRA petition from the time bar of the PCRA.
The fact that Appellant is claiming an illegal sentence, based upon a
crime that does not exist, does not change the outcome. In Commonwealth
v. Miller, 102 A.3d 988 (Pa. Super. 2014), the appellant sought retroactive
application based on Alleyne v. United States, ___ U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013). This Court determined that the appellant did
not satisfy the new constitutional right exception to the PCRA’s time bar,
recognizing:
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. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
purposes of subsection (iii), the language ‘has been held by that
court to apply retroactively’ means the court announcing the rule
must have also ruled on the retroactivity of the new
constitutional right, before the petitioner can assert retroactive
application of the right in a PCRA petition[ ]”), appeal denied,
597 Pa. 715, 951 A.2d 1163 (2008). 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. See Commonwealth v. Newman, 99
A.3d 86, 90 (Pa. Super. 2014) (en banc) (stating, “a challenge
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to a sentence premised upon Alleyne likewise implicates the
legality of the sentence and cannot be waived on appeal[ ]”). It
is generally true that “this Court is endowed with the ability to
consider an issue of illegality of sentence sua sponte.”
Commonwealth v. Orellana, 86 A.3d 877, [882] n. 7 (Pa.
Super. 2014) (citation omitted). 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. See Commonwealth
v. Borovichka, 18 A.3d 1242, 1254 [n.8] (Pa. Super. 2011)
(stating, “[a] challenge to the legality of a sentence . . . may be
entertained as long as the reviewing court has jurisdiction[ ]”)
(citation omitted). 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.” [Commonwealth v.
Seskey, 86 A.3d 237, 241 (Pa. Super. 2014]. As a result, the
PCRA court lacked jurisdiction to consider the merits of
Appellant’s [] PCRA petition, as it was untimely filed and no
exception was proven.
Id. at 995-96 (some citations omitted; footnote omitted).
Although the PCRA court did not dismiss Appellant’s PCRA petition on
timeliness grounds, we conclude the petition was untimely filed and is not
save by any exception under § 9545(b)(1). “As an appellate court, we may
affirm by reasoning different than that used by the trial court.”
Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001) (citation
omitted). Therefore, we affirm the September 11, 2014 order denying
Appellant’s amended PCRA petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2015
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