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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD A. MOTT,
Appellant No. 1536 WDA 2015
Appeal from the PCRA Order September 22, 2015
in the Court of Common Pleas of Crawford County
Criminal Division at No.: CP-20-CR-0000507-2008
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED: MARCH 02, 2016
Appellant, Richard A. Mott, appeals from the order dismissing his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546, as untimely. We affirm.
The relevant facts and procedural history of this case are as follows.
On November 3, 2008, Appellant entered a guilty plea to one count each of
rape of a child and incest.1 Appellant’s conviction stems from his sexual
abuse of his then twelve-year-old daughter, who had been sexually
assaulted previously by three other men, including Appellant’s son. The plea
bargain contained no agreement as to sentencing. At the February 2, 2009
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3121(c) and 4302, respectively.
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sentencing hearing, counsel for Appellant requested that the court impose
the ten-year mandatory minimum sentence on the rape of a child count.2
The court declined, and imposed a sentence of incarceration of not less than
twenty nor more forty years on this count, with a concurrent term of not less
than two nor more than ten years on the incest count. Appellant filed a
direct appeal challenging the discretionary aspects of his sentence, and this
Court affirmed the judgment of sentence on February 5, 2010. (See
Commonwealth v. Mott, No. 313 WDA 2009, unpublished memorandum at
*1-3 (Pa. Super. filed Feb. 5, 2010)). Appellant did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
On July 6, 2015, Appellant filed a pro se PCRA petition. Appointed
counsel filed an amended PCRA petition on August 12, 2015, asserting a
right to relief based on the United States Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that
facts, other than prior conviction, that mandatorily increase minimum
sentence are elements of offense and must be submitted to jury and proven
beyond reasonable doubt). (See PCRA Petition, 8/12/15, at 7, 9). On
August 31, 2015, the PCRA court filed a memorandum and order giving
notice of its intention to dismiss the petition without a hearing. See
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2
See 42 Pa.C.S.A. § 9718(a)(3).
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Pa.R.Crim.P. 907(1). The court entered its order dismissing the petition on
September 22, 2015. This timely appeal followed.3
Appellant raises the following question for our review: “Whether the
[PCRA] court erred when it concluded that [A]ppellant’s motion for post
conviction collateral relief was not timely filed?” (Appellant’s Brief, at 7).4
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. 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. 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. However, this Court reviews the PCRA court’s legal
conclusions de novo.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
and quotation marks 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.” Id. (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
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3
Appellant filed a concise statement of errors complained of on appeal
contemporaneously with his notice of appeal. The PCRA court filed an
opinion on September 25, 2015. See Pa.R.A.P. 1925.
4
The Commonwealth did not file a brief.
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three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by
[the Pennsylvania Supreme] 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 March
8, 2010, when his time to file a petition for allowance of appeal with the
Pennsylvania Supreme Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. §
9545(b)(3).5 Therefore, Appellant had one year from that date to file a
petition for collateral relief, specifically, until March 8, 2011. See 42
Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on July
6, 2015, 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 id. at § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
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5
The last day of the appeal period fell on a Sunday. Accordingly, Appellant
had until that Monday to file a petition for allowance of appeal. See 1
Pa.C.S.A. § 1908.
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(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).
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 8, 11); see
also 42 Pa.C.S.A. § 9545(b)(1)(iii). He asserts that Alleyne applies
retroactively to this case, and requests that this Court remand for re-
sentencing on the rape of a child conviction without regard to the mandatory
minimum term of incarceration. (See Appellant’s Brief, at 17).
First, we observe that Alleyne is utterly inapplicable to this case
because the sentencing court did not sentence Appellant to the mandatory
minimum ten-year sentence on the rape of a child count. The court imposed
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a minimum sentence of twenty years, well above the mandatory minimum,
and Appellant’s claim of excessiveness failed on direct appeal. Therefore,
Appellant’s argument based on Alleyne fails.
Moreover, in Miller, supra, the appellant also argued the applicability
of section 9545(b)(1)(iii) to his patently untimely PCRA petition. See Miller,
supra at 993. Specifically, he averred that the Alleyne decision announced
a new constitutional right that applies retroactively to cases on collateral
review. See id. at 993-94. This 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.
Id. at 995-96 (quotation marks, footnote, and citations omitted); see also
Commonwealth v. Riggle, 119 A.3d 1058, 1062, 1067 (Pa. Super. 2015)
(stating “Alleyne is not entitled to retroactive effect in [the] PCRA setting”
even with a timely filed petition). Therefore, prior precedent of this Court
makes clear that claims based on retroactive application of Alleyne in the
PCRA setting fail.6
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6
Although Appellant urges us to reconsider this precedent and to instead
apply Alleyne retroactively to cases on collateral review, (see Appellant’s
(Footnote Continued Next Page)
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In sum, we conclude that Appellant has not met his burden of proving
his untimely petition fits within one of the three exceptions to the PCRA’s
jurisdictional time-bar. See Jones, supra at 17. Accordingly, the PCRA
court properly dismissed Appellant’s petition without a hearing because it is
untimely with no exception to the time-bar pleaded or proven. See
Jackson, supra at 519.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
_______________________
(Footnote Continued)
Brief at 16), his request is beyond the power of this panel, which is bound by
the prior decisions of this Court. See Commonwealth v. Pepe, 897 A.2d
463, 465 (Pa. Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008), cert.
denied, 555 U.S. 881 (2008).
Furthermore, we also note that the United States Supreme Court
decided Alleyne on June 17, 2013. Appellant filed the instant PCRA petition
more than two years later, on July 6, 2015. Therefore, Appellant has failed
to comply with the PCRA’s 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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Com. v. Mott, R.
Combined Opinion