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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
PHILLIP JOHN PEACE, : No. 196 EDA 2015
:
Appellant :
Appeal from the Order Entered December 9, 2014,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0004715-2004
BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 15, 2016
Phillip John Peace appeals, pro se, from the order of December 9,
2014, denying his petition for writ of habeas corpus, which the court
properly treated as a serial PCRA1 petition.2 We affirm.
In a prior memorandum, we set forth the procedural history of this
matter as follows:
Following a jury trial, [appellant] was convicted
of two counts of criminal attempt to commit
homicide, possessing instruments of crime, firearms
not to be carried without a license, and recklessly
endangering another person.[Footnote 1] On
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
Appellant’s petition for writ of habeas corpus is properly treated as a
serial PCRA petition, since the PCRA is the sole means by which a defendant
may obtain collateral relief and subsumes the remedy of habeas corpus
with respect to remedies offered under the Post-Conviction Relief Act.
42 Pa.C.S.A. § 9542.
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June 20, 2005, the trial court sentenced him to an
aggregate term of incarceration of 156 months to
360 months.
[Footnote 1] 18 Pa.C.S.A. §§ 901, 907,
6106 and 2705, respectively.
[Appellant] filed post-sentence motions, which
the trial court denied on October 20, 2005. He then
filed a direct appeal challenging the sufficiency of the
evidence. On July 11, 2006, this Court affirmed the
judgment of sentence. [Appellant] then filed a
pro se PCRA petition, and counsel was appointed to
represent him. PCRA counsel filed an amended
petition claiming appellate counsel was ineffective for
failing to file a petition for allowance of appeal to our
Supreme Court. Following an evidentiary hearing,
[appellant] was granted leave to file a petition for
appeal nunc pro tunc. That petition was denied,
and on March 19, 2009, [appellant] filed another
PCRA petition. Counsel was again appointed to
represent him. On July 21, 2009, counsel filed an
amended PCRA petition.
On August 4, 2009, the PCRA court gave notice
of its intention to dismiss [appellant]’s PCRA petition
without a hearing pursuant to Pa.R.Crim.P. 907.
[Appellant] filed an objection. On September 14,
2009, the PCRA court dismissed the petition.
[Appellant] appeals.
Commonwealth v. Peace, No. 2890 EDA 2009, unpublished memorandum
at 1-2 (Pa.Super. filed July 26, 2010.) This court affirmed, and on
January 25, 2011, the Pennsylvania Supreme Court denied allowance of
appeal. Commonwealth v. Peace, 16 A.3d 503 (Pa. 2011).
On October 9, 2014, appellant filed a petition for writ of habeas
corpus, which was denied on December 9, 2014. A timely pro se notice of
appeal was filed on December 29, 2014. Appellant complied with Pa.R.A.P.,
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Rule 1925(b), 42 Pa.C.S.A., and the PCRA court has filed a Rule 1925(a)
opinion.
Appellant has raised the following issues for this court’s review:
1. DID THE LOWER COURT HAVE JURISDICTION,
STATUTORY AND CONSTITUTIONAL
AUTHORITY TO IMPOSE SENTENCES IN THIS
CASE?
2. ARE THE DECISIONS IN ALLEYNE, NEWMAN,
and HOPKINS RETROACTIVE IN THIS CASE?
3. UNDER PENNSYLVANIA STATUTE [SIC] LAW,
AS FOUND UNCONSTITUTIONAL, IS A
SENTENCE IMPOSED WHERE SUCH SENTENCE
FACTUALLY APPLIES ILLEGAL REGARDLESS OF
WHETHER THE COURT IMPOSED THE
STATUTORY MANDATORY MINIMUM?
4. DID THE COURT SUSPEND THE WRIT OF
HABEAS CORPUS?
5. DID THE PCRA COURT HAVE JURISDICTION TO
GRANT APPELLANT PCRA DUE PROCESS AND
RELIEF; BUT DENIED APPELLANT DUE
PROCESS AND ACCESS TO COURT IN
VIOLATION [OF] U.S. CONSTITUTION[AL]
AMENDMENTS 1, 5, 6, 14?
Appellant’s brief at 4.
The standard of review for an order denying
post-conviction relief is limited to whether the record
supports the PCRA court’s determination, and
whether that decision is free of legal error. The
PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified
record. Furthermore, a petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court
can decline to hold a hearing if there is no genuine
issue concerning any material fact and the petitioner
is not entitled to post-conviction collateral relief, and
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no purpose would be served by any further
proceedings.
Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),
appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.
Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
amendments to the PCRA, effective January 16,
1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super. 2000). A judgment is deemed final “at
the conclusion of direct review, including
discretionary 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.” 42 Pa.C.S.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and
prove:
(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;
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(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.A. § 9545(b)(1)(i)-(iii). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Id. at 1079-1080.
Instantly, the Supreme Court of Pennsylvania denied allowance of
appeal on March 12, 2008. Commonwealth v. Peace, No. 875 MAL 2007
(per curiam). Therefore, appellant’s judgment of sentence became final for
PCRA purposes on or about June 10, 2008, upon expiration of the time to file
a petition for writ of certiorari with the United States Supreme Court. See
42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13, 28 U.S.C.A. (petition for
writ of certiorari is deemed timely when it is filed within 90 days after
denial of allocatur). Appellant filed the current petition, his second, on
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October 9, 2014, over six years later. Therefore, appellant’s current PCRA
petition is manifestly untimely on its face.
Appellant argues that his sentence was illegal in light of Alleyne v.
United States, U.S. , 133 S.Ct. 2151 (2013), which held that “[a]ny
fact that, by law, increases the penalty for a crime is an ‘element’ that must
be submitted to the jury and found beyond a reasonable doubt.” Id. at
2155. Challenges to the legality of the sentence are never waived.
Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005) (en banc),
appeal denied, 917 A.2d 844 (Pa. 2007). This means that a court may
entertain a challenge to the legality of the sentence, so long as the court has
jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the
filing of a timely PCRA petition. Id.
Applying Alleyne, this court has held that certain mandatory minimum
sentencing provisions are unconstitutional because they permit the trial
court, as opposed to the jury, to increase a defendant’s minimum sentence
based upon a preponderance of the evidence standard. See, e.g.,
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015) (42 Pa.C.S. § 9712.1 (relating to
drug offenses committed with firearms), does not pass constitutional muster
under Alleyne); Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super.
2014), appeal denied, 121 A.3d 494 (Pa. 2015) (18 Pa.C.S.A. § 7508,
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relating to mandatory minimum sentences for certain drug trafficking
offenses, is unconstitutional in its entirety).
The PCRA court states that appellant was not sentenced pursuant to a
mandatory minimum sentencing statute. (PCRA court opinion, 2/19/15 at
5.) However, even if he were, it is well settled that Alleyne does not
invalidate a mandatory minimum sentence when presented in an untimely
PCRA petition. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super.
2014) (Alleyne does not satisfy the new retroactive constitutional right
exception to the PCRA’s one-year time bar, 42 Pa.C.S.A. § 9545(b)(1)(iii)).
Cf. Commonwealth v. Ruiz, A.3d , 2015 WL 9632089 (Pa.Super.
filed December 30, 2015) (defendant was entitled to the benefit of Alleyne
where he raised the claim in a timely PCRA petition and his judgment of
sentence was still pending on direct review when Alleyne was handed
down).
Therefore, appellant’s petition was untimely, no exception to the
jurisdictional one-year time bar applied, and the PCRA court did not err in
dismissing it without a hearing.3
Order affirmed.
3
Appellant raised several additional claims in his habeas petition and
Rule 1925(b) statement, including that the trial court lacked jurisdiction and
he was the victim of racial discrimination. Apparently, he has abandoned
these claims on appeal, as they are not argued in his brief. At any rate,
these are issues that could have been raised on direct appeal or in his first
PCRA petition. (PCRA court opinion, 2/19/15 at 5.) Therefore, they are
deemed waived. 42 Pa.C.S.A. § 9544(b).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
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