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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
JUSTIN NICHOLSON, :
:
Appellant :
: No. 1555 WDA 2015
Appeal from the PCRA Order September 24, 2015
in the Court of Common Pleas of Fayette County Criminal Division
at No(s): CP-26-CR-0002034-2007
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 11, 2016
Appellant, Justin Nicholson, appeals from the order entered in the
Fayette County Court of Common Pleas dismissing, as untimely, his first Post
Conviction Relief Act1 (“PCRA”) petition. Appellant argues he received a
mandatory minimum sentence that is unconstitutional under Alleyne v.
U.S., 133 S. Ct. 2151 (2013). We affirm.
The relevant procedural history follows. On February 1, 2010,
Appellant pleaded nolo contendere to robbery,2 terroristic threats,3 theft by
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 3701(a)(1)(ii).
3
18 Pa.C.S. § 2706(a)(1).
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unlawful taking,4 receiving stolen property,5 simple assault,6 and resisting
arrest.7 On March 3, 2010, the trial court sentenced Appellant to an
aggregate term of seven and one-half to fifteen years’ incarceration. The
court informed Appellant, “ [a] BB gun qualifies as a deadly weapon under
18 [Pa.S.C. §] 2301 and qualifies as a firearm for the mandatory sentencing
purposes pursuant to 42 Pa.C.S.[ §] 9712(E).” N.T. Sentencing Hr’g,
3/3/10, at 5-6. Appellant did not file a direct appeal.
On March 27, 2015, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and counsel filed an amended petition on June 10,
2015, wherein Appellant argued, inter alia, his sentence was illegal in light of
the United States Supreme Court’s decision in Alleyne and this Court’s
decision in Commonwealth v. Valentine, 101 A.3d 801, (Pa. Super.
2014), appeal denied, 124 A.3d 309 (Pa. 2015).8 The PCRA court scheduled
a video hearing on Appellant’s amended petition for September 24, 2015,
and dismissed the petition the same day. PCRA Ct. Order, 9/24/15.
4
18 Pa.C.S. § 3921(a).
5
18 Pa.C.S. § 3925(a).
6
18 Pa.C.S. § 2701(a)(3).
7
18 Pa.C.S. § 5104.
8
The Court in Valentine applied the principles of Alleyne and this Court’s
subsequent decisions and held Section 9712 is unconstitutional. See
Valentine, 101 A.3d at 812.
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Appellant filed a timely notice of appeal and a court ordered Pa.R.A.P.
1925(b) statement. The PCRA court filed a responsive opinion.
On appeal, Appellant raises the following issue for our consideration.
Whether the holding of the United States Supreme
Court in Alleyne . . . applies retroactively on post-
conviction review?
Appellant’s Brief at 3.9
Appellant argues that Alleyne applies retroactively to petitioners on
post-conviction review. Id. at 12. Appellant further contends, “requiring
him to serve an illegal sentence is manifestly unfair” and in violation of his
constitutional rights. Id. at 12-13. For the reasons that follow, we hold
Appellant is not entitled to relief.
Our standard of review is well-settled:
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. . .
. [T]his Court reviews the PCRA court’s legal
conclusions de novo.
9
Appellant also argues the PCRA court erred in determining he was not
subject to a mandatory minimum sentence because he pleaded “guilty.”
Appellant’s Brief at 3, 6. The certified record does not include a transcript of
the PCRA hearing, and the PCRA court did not file an opinion at the time of
its dismissal of Appellant’s petition suggesting the mandatory minimum did
not apply to Appellant. However, in its Rule 1925(a) opinion, the PCRA court
noted Appellant was subject to the Section 9712 mandatory sentencing
provision. PCRA Ct. Op., 10/19/15, at 1. At sentencing, the trial court also
referred to Section 9712. N.T., 3/3/10, at 5-6. Therefore, the record does
not support this claim, and we need not address it.
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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
As a prefatory matter, “we must first consider the timeliness of
Appellant’s PCRA petition because it implicates the jurisdiction of this Court
and the PCRA court. . . . [W]hen ‘a PCRA petition is untimely, neither this
Court nor the trial court has jurisdiction over the petition.’” Id. (citations
omitted). The time for filing a PCRA is codified at 42 Pa.C.S. § 9545(b)(1):
(b) Time for filing the 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.
42 Pa.C.S. § 9545(b)(1).
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This Court has considered whether Alleyne entitles an untimely PCRA
petitioner to relief under Section 9545(b)(1)(iii):
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.
Miller, 102 A.3d at 995 (citations omitted).
Instantly, Appellant was sentenced on March 3, 2010, and he did not
file a direct appeal. Therefore, his judgment of sentence became final on
April 5, 2010,10 and he had a year from that date to file a timely PCRA
petition. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(1). Appellant filed his
PCRA petition on March 27, 2015, and it is facially untimely. Appellant’s
position is that Alleyne applies retroactively, and Section 9545(b)(1)(iii)
entitles him to PCRA relief. Appellant’s Brief at 12. However, Miller held
that Alleyne does not meet Section 9545(b)(1)(iii)’s exception to the time-
bar. Miller, 102 A.3d at 995. Therefore, the PCRA court correctly dismissed
Appellant’s untimely PCRA petition, and we affirm. See id. at 992, 995.
10
We note the 30th day following the imposition of sentence was Friday,
April 2, 2010. The Superior Court was closed on that date in observance of
Good Friday. Therefore, Appellant had until Monday, April 5, 2010 to file a
timely appeal. See 1 Pa.C.S. § 1908.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2016
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