J-S33018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS HENDERSON
Appellant No. 1158 WDA 2015
Appeal from the PCRA Order July 7, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-0000306-2006
BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 12, 2016
Appellant, Thomas Henderson, appeals pro se from the order entered
on July 27, 2015, dismissing his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On March 9, 2006, the Commonwealth charged Appellant with
various crimes in relation to a knifepoint robbery at the Papermoon
Restaurant in Erie, Pennsylvania on January 20, 2006. On April 6, 2006,
Appellant pled guilty to robbery, aggravated assault, recklessly endangering
another person (REAP), and possessing an instrument of crime (PIC). 1 On
June 6, 2006, Appellant appeared for sentencing. Upon preparing the pre-
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1
18 Pa.C.S.A. §§ 3701(a)(1), 2702(a)(1), 2705, and 907, respectively.
*Former Justice specially assigned to the Superior Court.
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sentence investigation report, “it was discovered that [Appellant] was a
recidivist offender who fell under the purview of 42 [Pa.C.S.A. §] 9714”
because this criminal episode represented Appellant’s third violent felony,
and, as a result, Appellant was “facing a [mandatory sentence of] 25 to 50
years” of incarceration. N.T., 6/6/2006, at 5-6. However, Appellant “was
not advised of that at the time of the entry of the plea[.]” Id. at 6.
Accordingly, the trial court granted a continuance. At a sentencing hearing
held on July 20, 2006, the trial court gave Appellant the option to withdraw
his plea and stand trial or to allow Appellant to let his plea stand. N.T.,
7/20/2006, at 9. Appellant reaffirmed his plea. Id. The trial court
sentenced Appellant to a mandatory term of 25-50 years of incarceration for
robbery, an identical, concurrent term of imprisonment for aggravated
assault, and a concurrent term of 30 to 60 months of incarceration for PIC.
Id. at 24-25. Appellant’s REAP charge merged with his aggravated assault
conviction for sentencing purposes. Id. at 25. On July 25, 2006, Appellant
filed a motion to modify his sentence. The trial court denied relief by order
on July 26, 2006.
In an opinion filed on December 11, 2007, a panel of this Court
vacated the aggravated assault sentence, but affirmed Appellant’s judgment
of sentence in all other respects. See Commonwealth v. Henderson, 938
A.2d 1063 (Pa. Super. 2007). Because Appellant’s aggregate sentence
remained the same, the trial court’s sentencing scheme was not upset and
we did not remand the case for resentencing. Id. On July 2, 2008, the
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Pennsylvania Supreme Court denied further review. Commonwealth v.
Henderson, 954 A.2d 575 (Pa. 2008).
On December 3, 2008, Appellant filed a pro se PCRA petition. On
December 5, 2008, the PCRA court appointed counsel to represent him. On
December 16, 2008, appointed counsel filed a petition for leave to withdraw
and a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). On December 17, 2008, the PCRA court gave Appellant
notice it intended to dismiss the PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. By order entered on January 7, 2009, the PCRA court
dismissed Appellant’s PCRA petition and ordered him to retain private
counsel or proceed pro se. Appellant did not file an appeal.
On April 30, 2015, Appellant filed a pro se motion to vacate illegal
sentence. Citing the United States Supreme Court decision Alleyne v.
United States, 133 S. Ct. 2151 (2013), Appellant averred that his
mandatory minimum sentences under 42 Pa.C.S.A. § 9714, the recidivist
statute allowing for sentence enhancements for prior convictions for violent
crime, were unconstitutional. By order entered on May 12, 2015, the PCRA
court appointed counsel to represent Appellant and noted that it was
treating Appellant’s request for relief under the PCRA.2 On June 10, 2015,
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2
Appellant does not challenge the PCRA court’s treatment of the filing
under the PCRA. Regardless, the PCRA court’s assessment was proper. It is
(Footnote Continued Next Page)
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appointed counsel filed a petition for leave to withdraw and a “no-merit”
letter pursuant to Turner/Finley. On June 12, 2015, the PCRA court gave
Appellant notice it intended to dismiss the PCRA petition without a hearing
pursuant to Pa.R.Crim.P. 907. By order entered on July 7, 2015, the PCRA
court dismissed Appellant’s PCRA petition. This timely appeal resulted.3
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(Footnote Continued)
well-settled that the PCRA is intended to be the sole means of achieving
post-conviction relief. Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.
Super. 2013), citing 42 Pa.C.S.A. § 9542.
3
Appellant filed a pro se notice of appeal on July 27, 2015. On July 30,
2015, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on August 7, 2015, raising the following issues:
1. Defendant[’]s sentence is illegal due to recent U.S.
Supreme Court decisions, recent Pennsylvania Supreme
Court decisions, and Pennsylvania Superior Court decisions;
2. Defendant’s sentence is unconstitutional because of recent
U.S. Supreme Court decisions, Pennsylvania Supreme Court
decisions, and Pennsylvania Superior Court decisions.
Appellant’s Rule 1925(b) Statement, 8/7/2015, at 1. The PCRA court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on August 11, 2015 finding
Appellant’s claims “waived as vague.” PCRA Court Opinion, 8/11/2015, at 2
(unpaginated).
We have previously determined:
it is well-established that [an a]ppellant's concise statement
must properly specify the error to be addressed on appeal.
The Rule 1925(b) statement must be specific enough for the
trial court to identify and address the issue an appellant
wishes to raise on appeal. Further, this Court may find
waiver where a concise statement is too vague. When a
court has to guess what issues an appellant is appealing,
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issues, pro se, for our
review:
1. Was Appellant sentenced under an unconstitutional
statute in which the entire statute is not severable?
2. Can Appellant be sentence[d] pursuant to 42 Pa.C.S.A.
§ 9714 as a third strike offender when he was never
sentenced as a second strike offender?
Appellant’s Brief at 4 (complete capitalization omitted).
In his first issue presented, Appellant “argues that pursuant to many
Pennsylvania mandatory minimum sentencing statutes from the Superior
Court and Supreme Court cases that 42 Pa.C.S.A. § 9714 should be declared
unconstitutional in it’s [sic] entirety in light of Alleyne[.]” Id. at 8.
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(Footnote Continued)
that is not enough for meaningful review. A concise
statement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no
concise statement at all.
In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013) (internal citations,
quotations and original brackets omitted). Here, while Appellant’s Rule
1925(b) statement is, in fact, vague, in his underlying petition Appellant
specifically cited Alleyne, challenged the recidivist statute at Section 9714
as unconstitutional and argued that his sentence was illegal. Thus, the PCRA
court did not have to guess at the issues presented on appeal. We could
find waiver, but do not. In its Rule 1925(a) opinion, the PCRA court
addressed, in the alternative, the issue on the merits and determined
“Alleyne and its progeny do not apply retroactively on collateral review
where a judgment of sentence is final.” PCRA Court Opinion, 8/11/2015, at
2 (unpaginated) (citations omitted). However, as discussed infra, the PCRA
court lacked jurisdiction to entertain Appellant’s PCRA petition. “[I]t is
established that we can affirm the trial court on any valid basis.”
Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa. Super. 2008).
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“As a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported by the
record and free of legal error.” Commonwealth v. Eichinger, 108 A.3d
821, 830 (Pa. 2014) (bracket omitted). “[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.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super.
2007). Stated differently, “although illegal sentencing issues cannot be
waived, they still must be presented in a timely PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (citation
omitted).
This Court stated:
The timeliness of a PCRA petition is a jurisdictional
threshold and may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition that is
untimely. Effective January 16, 1996, the PCRA was
amended to require a petitioner to file any PCRA petition
within one year of the date the judgment of sentence
becomes final. A judgment of sentence becomes 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.
* * *
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
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[….] are met.4 A petition invoking one of these exceptions
must be filed within sixty days of the date the claim could
first have been presented. In order to be entitled to the
exceptions to the PCRA's one-year filing deadline, the
petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time
frame[.]
Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (internal
citations and quotations omitted).
Here, Appellant appealed his judgment of sentence and the
Pennsylvania Supreme Court denied review on July 2, 2008. Thus, his
judgment of sentence became final 90 days later, or on September 30,
2008, after the time for seeking certiorari with the United States Supreme
Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment
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4
The exceptions to the timeliness requirement are:
(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.A. § 9545(b)(1)(i-iii).
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becomes 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[.]”);
U.S.Sup.Ct.R. 13 (providing “a petition for a writ of certiorari seeking review
of a judgment of a lower state court that is subject to discretionary review
by the state court of last resort is timely when it is filed with the Clerk within
90 days after entry of the order denying discretionary review[.]”).
Appellant’s most recent PCRA petition, filed on April 30, 2015 is patently
untimely and Appellant did not assert any exceptions to the PCRA’s
jurisdictional timing requirement. Hence, the trial court did not have
jurisdiction to entertain Appellant’s sentencing claim.
Finally, we note that Appellant filed his most recent PCRA petition
raising his Alleyne claim on April 30, 2015, almost two years after Alleyne
was decided on June 17, 2013. Hence, he did not present the claim within
60 days of the date the claim could first have been presented. Moreover,
during the pendency of this appeal, our Court issued an opinion in the case
of Commonwealth v. Ruiz, 2015 WL 9632089 (Pa. Super. 2015), which
determined that Alleyne is not retroactive and cannot serve as the basis for
invoking the timeliness exception found at 42 Pa.C.S.A. § 9545(b)(1)(iii).
Thus, there was simply no jurisdiction to entertain Appellant’s claim.
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Lastly, even if it is ultimately determined that Alleyne is entitled to
retroactive application to cases pending on collateral review,5 Appellant’s
precise claim is such that he cannot rely on the decision to invoke the
timeliness exception found at 42 Pa.C.S.A. § 9545(b)(i)(iii). Our Court has
recently determined, in the context of review on direct appeal:
In Alleyne, the Supreme Court of the United States
established 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.” Alleyne,
133 S.Ct. at 2155. However, the Supreme Court has
recognized a narrow exception to this rule for prior
convictions. Id. at 2160, n.1 (citing Almendarez–Torres
v. United States, 118 S.Ct. 1219, (1998)). In
Commonwealth v. Reid, 117 A.3d 777, 785 (Pa. Super.
2015), this Court specifically found that Section 9714 is not
rendered unconstitutional under Alleyne as it provides for
mandatory minimum sentences based on prior convictions.
Accordingly, as [a]ppellant was similarly sentenced to a
mandatory minimum sentence under Section 9714 for his
prior conviction of a crime of violence, Appellant's
sentencing challenge has no merit.
Commonwealth v. Bragg, 2016 WL 490006, at *4 (Pa. Super. 2016).
Applying Bragg in the context of the PCRA, Alleyne offers no right upon
which Appellant can rely for purposes of invoking Section 9545(b)(i)(iii).
Next, in his second issue presented, Appellant contends that the trial
court improperly determined that he was a third-strike offender under 42
Pa.C.S.A. § 9714. Appellant’s Brief at 12-17. Again, Appellant is presenting
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5
See, e.g., Commonwealth v. Aybar, 1224 MDA 2014 (October 26, 2015)
(en banc review granted to address retroactive application of Alleyne in
timely filed PCRA petitions).
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an illegal sentencing claim in an untimely PCRA petition. The PCRA court
lacked jurisdiction to address this claim. Moreover, Appellant never
presented this issue in his PCRA petition or in his Rule 1925(b) statement.
Thus, Appellant also waived this claim. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2016
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Com. v. Henderson, T.
Combined Opinion