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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JEAN C. PAGAN-ROSARIO :
:
Appellant :
: No. 1285 WDA 2015
Appeal from the Order Entered August 5, 2015
in the Court of Common Pleas of Erie County Criminal Division
at No(s): CP-25-CR-0003329-2011
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 6, 2016
Appellant, Jean C. Pagan-Rosario, appeals pro se from the order
entered in the Erie County Court of Common Pleas dismissing his third
petition1 filed pursuant to the Post Conviction Relief Act 2 (“PCRA”). He
argues the United States Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013) entitles him to relief. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
Appellant titled his filing “motion to vacate judgment of sentence, and/or in
the alternative petition to set aside his mandatory minimum sentence
pursuant to Alleyne v. United States, nunc pro tunc.” Appellant
challenged the legality of his sentence; therefore, the PCRA court properly
considered his motion as a PCRA petition. See 42 Pa.C.S. § 9543(a)(2)(vii).
2
42 Pa.C.S. §§ 9541-9546.
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On September 9, 2012, Appellant pleaded guilty to possession with
intent to deliver a controlled substance.3 On November 20, 2012, the trial
court imposed a mandatory sentence of 60 to 120 months’ imprisonment
pursuant to 42 Pa.C.S. § 9712.1(a).4 Appellant did not file a direct appeal.
On January 22, 2013, Appellant filed his first, timely PCRA petition. 5 The
PCRA court appointed counsel, whom the court permitted to withdraw. 6 The
PCRA court dismissed the petition on May 28, 2013, and Appellant did not
file an appeal. Appellant filed his second, timely PCRA petition, pro se, on
October 15, 2013. Appellant retained private counsel, who filed an amended
petition on October 23, 2013. The PCRA court dismissed the petition on
November 19, 2014, and this Court affirmed. Commonwealth v. Pagan-
Rosario, 220 WDA 2014 (Pa. Super. Oct. 6, 2014) (unpublished
memorandum).
3
35 P.S. § 780-113(a)(30).
4
In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),
this Court held that the decision in Alleyne rendered the mandatory
minimum sentence at Section 9712.1 unconstitutional. Newman, 99 A.3d
at 103. The Newman Court observed that the defendant was entitled to
retroactive application because his “case was still pending on direct appeal
when Alleyne was handed down[.]” Id. at 90 (emphasis added).
5
Appellant filed a “motion for modification of sentence” which the PCRA
court treated as a timely PCRA petition.
6
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On July 7, 2015,7 Appellant filed the petition that gives rise to the
instant appeal. Therein, he argued, inter alia, his sentence is
unconstitutional under Alleyne. See Appellant’s Pet., 7/7/15, at 3
(unpaginated). The PCRA court issued a notice of intent to dismiss pursuant
to Pa.R.Crim.P. 907 and an accompanying opinion on July 22, 2015.
Appellant filed a reply on August 3, 2015, and the PCRA court dismissed the
petition on August 5, 2015. Appellant timely appealed and filed a court-
ordered Pa.R.A.P. 1925(b) statement.
On appeal, Appellant raises three issues,8 but we discern that the
gravamen of his argument is that the PCRA court erred when it determined
7
The petition was filed on July 9th; however the certified record indicates a
post-marked date of July 7th. Therefore, we consider the petition filed on
that date. See Commonwealth v. Bradley, 69 A.3d 253, 254 n.3 (Pa.
Super. 2013).
8
Appellant’s questions presented, verbatim, read:
I. Was petitioner unconstitutionally denied by a state
court, the retroactive relief and application of U.S.
Supreme Court decisions, “United States v. Alleyne,
Greer, Johnson, Shavers, Booker; denied the
application of Marbury v. Madison, Testa v. Katt; the
Harper Rule pursuant to Article VI. Clause 2. “The
Supremacy Clause,” nunc pro tunc?
II. Whether the state court by its refusal to apply the
decisions Alleyne-Apprendi, via the Supremacy
Clause to Appellant’s case nunc pro tunc, was
tantamount to a state court committing a
unconstitutional structural defect?
III. Whether Appellant’s sentence is illegal?
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that Appellant was not entitled to resentencing based on Alleyne.9 See
Appellant’s Brief at 7-15. He posits, “the Supreme Court’s [d]ecision of
Alleyne is . . . both binding on [e]very Pennsylvania/State Court, and is to
be applied retroactively to every case that comes before it. . . . It is
reaffirmed herein, that this State Court cannot decline jurisdiction.” Id. at
11. We disagree.
Our review is limited to whether the findings of the PCRA court are
supported by the record and free of legal error. Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014). Our standard of review over the
PCRA court’s legal conclusions is de novo. Id.
However,
[b]efore 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.
Pennsylvania law makes clear that when a PCRA
petition is untimely, neither this Court nor the trial
court has jurisdiction over the petition. . . .
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.[] §
Appellant’s Brief at 3 (underlining omitted).
9
As Appellant is pro se, we may liberally construe the argument he raises.
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014), cert. denied,
135 S. Ct. 2817 (2015). However, “pro se status confers no special benefit
upon a litigant, and a court cannot be expected to become a litigant’s
counsel or find more in a written pro se submission than is fairly conveyed in
the pleading.” Id. Appellant’s brief is largely incoherent. We address the
argument fairly conveyed in his brief. See id.
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9545(b)(1)(i), (ii), and (iii) are met. 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
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 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 chapter
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.[] § 9545(b).
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Id. at 992-93 (quotation marks and some citations omitted).
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, the trial court sentenced Appellant on November 20, 2012,
and he did not file a direct appeal. Therefore, his judgment of sentence was
final on December 20, 2012. See 42 Pa.C.S. § 9545(b)(2); Pa.R.A.P.
903(a). Appellant filed the instant petition on July 7, 2015, and it is facially
untimely. Appellant’s position is that Alleyne applies retroactively.
Appellant’s Brief at 8. 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.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2016
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Com. v. Pagan-Rosario, J.
Combined Opinion