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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DESEAN PROSSER,
Appellant No. 3102 EDA 2015
Appeal from the PCRA Order October 1, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division, at No(s): CP-51-CR-1016621-1993
CP-51-CR-1016721-1993
CP-51-CR-1016811-1993
CP-51-CR-1016921-1993
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED MAY 03, 2016
Desean Prosser (“Appellant”) appeals pro se from the order dismissing
as untimely his second petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows.
In November 1993, [Appellant] pled guilty to four counts of
robbery, one count of carjacking, two counts of aggravated
assault, two counts [of] simple assault, eight counts of
possession of instruments of crime, twelve violations of the
Uniform Firearms Act, and four counts of criminal conspiracy
arising out of a one-week crime spree involving four separate
gunpoint robberies. On February 7, 1994, this Court sentenced
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Former Justice specially assigned to the Superior Court.
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[Appellant] to an aggregate sentence of twenty-five to eighty
years of incarceration. [Appellant] filed an appeal, and on March
6, 1995, the Superior Court affirmed [Appellant’s] judgment of
sentence. See [Commonwealth v. Prosser, 660 A.2d 656 (Pa.
Super. 1995) (Table)]. On February 2, 1996, the Pennsylvania
Supreme Court denied [Appellant’s] Petition for Allowance of
Appeal. See [Commonwealth v. Prosser, 672 A.2d 306 (Pa.
1996) (Table)]. [Appellant] then filed a timely PCRA petition,
which was denied on December 28, 1999[.] The Superior Court
affirmed [the PCRA court’s] denial of [Appellant’s] PCRA Petition
on August 22, 2000, see [Commonwealth v. Prosser, 764
A.2d 1127 (Pa. Super. 2000) (Table)], and [our] Supreme Court
denied allocatur on March 6, 2001. See [Commonwealth v.
Prosser, 771 A.2d 1282 (Pa. 2001 (Table))].
On February 18, 2015, [Appellant] filed a second [PCRA petition]
in which he argued that he is serving an illegal sentence under
Alleyne v. United States, 133 S.Ct. 2151 (2013) because the
trial court determined the deadly weapon enhancement applied,
as opposed to the jury finding facts beyond a reasonable doubt
which triggered the deadly weapon enhancement. After
reviewing the Petition and the relevant precedent, this Court
issued a notice of intent to dismiss the Petition pursuant to
Pa.R.Crim.P. 907. [Appellant filed objections to the Rule 907
notice on August 19, 2015.] By Order dated October 1, 2015,
this Court dismissed the Petition as untimely.
PCRA Court Opinion, 10/21/15, at 1-2.1 This timely pro se appeal follows.
Appellant raises the following issue.
AS THE PENNSYLVANIA SUPERIOR COURT AND SUPREME
COURTS HAVE FOUND SECTION 9712 TO BE FACIALLY
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1
Alleyne is inapplicable to the use of the deadly weapon enhancement
when determining a defendant’s sentencing guidelines. See generally,
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266-1271 (Pa. Super.
2014) (en banc). Although the PCRA court uses this phrase to describe
Appellant’s claim, it is clear from a review of the record that Appellant’s
aggregate sentence included several mandatory minimums under 42
Pa.C.S.A. § 9712. See N.T., 2/7/94, at 8-12.
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UNCONSTITUTIONAL IN ITS ENTIRETY, IS [] APPELLANT
ENTITLED TO RELIEF FROM HIS ILLEGAL SENTENCE AS
THE STATUTE HAS BEEN UNCONSTITUTIONAL FROM THE
DATE OF ITS PASSAGE AND INEFFECTIVE FOR ANY
PURPOSE?
Appellant’s Brief at 7.
We must first determine whether the PCRA court correctly determined
that Appellant’s second PCRA petition was untimely filed. This Court’s
standard of review regarding an order dismissing a petition under the PCRA
is whether the determination of the PCRA court is supported by the evidence
of record and is free of legal error. See Commonwealth v. Halley, 870
A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Generally, a
petition for relief under the PCRA, including a second or subsequent petition,
must be filed within one year of the date the judgment is final unless the
petition alleges, and the petitioner proves, that an exception to the time for
filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is
met. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.
2000). A PCRA petition invoking one of these statutory exceptions “shall be
filed within 60 days of the date the claim could have been presented.” See
42 Pa.C.S.A. § 9545(b)(2).
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Appellant’s judgment of sentence became final on May 2, 1996, when
the ninety-day time period for filing a writ of certiorari with the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.
Therefore, Appellant needed to file the PCRA petition at issue by May 2,
1997, in order for it to be timely. Appellant filed the instant petition on
February 18, 2015; it is untimely unless he has satisfied his burden of
pleading and proving that one of the enumerated exceptions applies. See
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
Although Appellant challenges the legality of his sentence, this claim
still must be presented in a timely PCRA petition. See Commonwealth v.
Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (emphasis added). Appellant
has failed to prove any exception to the PCRA’s time bar.
As explained by the PCRA court:
[Appellant’s] argument fails for two separate, but equally
important, reasons. First, § 9545(b)(1)(iii) requires that the
right be a constitutional right that was recognized by the United
States Supreme Court [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)(iii)
(emphasis added). Assuming arguendo the United States
Supreme Court recognized a new constitutional right in Alleyne,
neither the United States Supreme Court nor the Pennsylvania
Supreme Court has held the right applies retroactively to cases
in which the judgment of sentence had become final.
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014). Stated differently, the Superior Court in Miller held the
United States Supreme Court’s decision in Alleyne applies only
to cases which were pending, or on direct appeal at the time,
Alleyne was decided; the Alleyne decision does not apply to
cases seeking collateral review after the judgment of sentence
has become final. Here, [Appellant’s] judgment of sentence
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became final in 1996. Accordingly, under Miller, the Supreme
Court’s decision in Alleyne, does not apply. Miller, 102 A.3d at
995.
Second, even if the Alleyne decision applied retroactively to
cases seeking collateral review, the instant Petition is untimely.
Section 9545(b) requires any petition invoking one of the
timeliness exceptions to be filed within sixty days of the date the
claim could have been presented. 42 Pa.C.S. § 9545(b)(2). In
this case, the Supreme Court decided Alleyne, and thereby
recognized a new constitutional right, on June 17, 2013. See
Alleyne, supra. Accordingly, under § 9545(b)(2), any petition
seeking relief based on the new constitutional right recognized in
Alleyne would need to be filed no later than August 16, 2013.
[Appellant] did not file the instant [Petition] until February 18,
2015 – 611 days after the United States Supreme Court decided
Alleyne. For this [additional] reason, the instant Petition is
untimely.
PCRA Court Opinion, 10/21/15, at 4-5.
Our review of the record supports the PCRA court’s conclusions. See
also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015)
(holding that, “Alleyne is not entitled to retroactive effect in [the] PCRA
setting.”). Thus, although Alleyne implicates the legality of Appellant’s
sentence, the PCRA court correctly concluded that it lacked jurisdiction to
address Appellant’s issue. See Miller.2
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2
Appellant’s reliance upon several decisions from this Court, as well as our
Supreme Court’s decision in Commonwealth v. Hopkins, 117 A.3d 247
(Pa. 2015), is inapposite because these cases involved direct appeals rather
than post-conviction challenges to judgments of sentence that had already
become final. See Appellant’s Brief at 9-15.
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In sum, the PCRA court correctly concluded that Appellant failed to
establish any exception to the PCRA’s time-bar. The PCRA court therefore
properly dismissed Appellant’s third PCRA petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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