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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERWIN FERGUSON, JR.
Appellant No. 3257 EDA 2015
Appeal from the PCRA Order September 30, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000340-2001
BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2016
Appellant Erwin Ferguson, Jr. appeals from the order of the Court of
Common Pleas of Monroe County dismissing his petition filed pursuant to the
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.
On March 5, 2002, Appellant entered a plea of nolo contendere to
criminal homicide.1 On May 30, 2002, the trial court sentenced Appellant to
15 to 30 years’ imprisonment. Appellant did not file a notice of appeal.
On June 19, 2003, Appellant filed his first PCRA petition. The PCRA
court denied the petition, and this Court affirmed. The Supreme Court of
Pennsylvania denied Appellant’s petition for allowance of appeal.
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1
18 Pa.C.S. § 2501.
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On January 22, 2007, Appellant filed his second PCRA petition. The
PCRA court dismissed the petition, and this Court affirmed.
On August 12, 2015, Appellant filed the instant PCRA petition, his
third. On September 1, 2015,2 the PCRA court issued notice of its intent to
dismiss the PCRA petition without a hearing pursuant to Pennsylvania Rule of
Criminal Procedure 907. On September 21, 2015,3 Appellant filed a “Pro Se
Response to Notice of Disposition Without Hearing.” On September 30,
2015, the PCRA court issued an order denying the PCRA petition. On
October 22, 2015, Appellant filed a notice of appeal.
On October 27, 2015, the PCRA court issued an order requiring
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant
did not file a 1925(b) statement. On December 15, 2015, the PCRA court
issued its 1925(a) statement.
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2
The notice of intent issued by the PCRA court was dated August 31, 2015,
but stamped as docketed on September 1, 2015.
3
The postage on the envelope in which Appellant mailed the response was
dated September 21, 2015. See Commonwealth v. Chambers, 35 A.3d
34, 38 (Pa.Super.2011) (“in the interest of fairness, the prisoner mailbox
rule provides that a pro se prisoner’s document is deemed filed on the date
he delivers it to prison authorities for mailing”).
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Appellant claims the PCRA court erred by dismissing his PCRA petition
as untimely.4 He claims he filed his petition within 60 days of
Commonwealth v. Hopkins,5 which, he argues, applies to the facts of his
case.
Appellant failed to file a 1925(b) statement and, therefore, has waived
his claims raised on appeal. See Pa.R.A.P. 1925(b)(vii) (“Issues not
included in the [1925(b)] Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).
Moreover, even if Appellant had preserved his issue, he is not entitled
to relief because his petition is untimely. Our standard of review from the
denial of post-conviction relief “is limited to examining whether the PCRA
court’s determination is supported by the evidence of record and whether it
is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242
(Pa.Super.2011) (citing Commonwealth v. Morales, 701 A.2d 516, 520
(Pa.1997)).
Before addressing the merits of a PCRA petition, we first determine
whether the petition is timely. The PCRA provides that a petition, “including
a second or subsequent petition, shall be filed within one year of the date
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4
Appellant’s brief does not contain a statement of questions presented as
required by Pennsylvania Rule of Appellate Procedure 2116; however, his
issue is clear from the remainder of his brief.
5
117 A.3d 247 (Pa.2015).
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the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1); accord
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010);
Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A
judgment is 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. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar exist. The exceptions allow
for limited circumstances under which a court may excuse the late filing of a
PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. To
establish that an exception to the PCRA time-bar applies, a petitioner 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;
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). When invoking an exception to the PCRA
time-bar, the petition must “be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s judgment of conviction became final on July 1, 2002, when
the time to seek review by this Court expired.6 He had one year from that
date, i.e., July 1, 2003, to file a timely PCRA petition. Therefore, his current
petition, filed on August 12, 2015, is facially untimely.
Appellant maintains he has established the newly discovered fact
exception to the PCRA time bar, because the Pennsylvania Supreme Court
did not issue a decision in Hopkins until June 15, 2015.7 However, case
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6
Appellant had 30 days from entry of the judgment of sentence on May 30,
2002 to file a direct appeal. Pa.R.A.P. 903(a). Thirty days from May 30,
2002, was Saturday, June 29, 2002. Therefore, Appellant had until Monday,
July 1, 2002, to file a direct appeal. 1 Pa.C.S. § 1908 (When last day of
time period “fall[s] on Saturday or Sunday, . . . such day shall be omitted
from the computation”); Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the
Pennsylvania Consolidated Statutes (rules of construction) so far as not
inconsistent with any express provision of these rules, shall be applicable to
the interpretation of these rules . . . .”).
7
In Hopkins, the Supreme Court of Pennsylvania found that pursuant
Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151, 2158, 186 L.Ed.2d
314 (2013), the mandatory minimum sentencing scheme set forth in 18
Pa.C.S. § 6317 (“Drug-free school zones”) was unconstitutional in its
entirety. See Hopkins, 117 A.3d at 262. The appellant in Hopkins had
filed a direct appeal, as his sentence was not final at the time the Supreme
Court of the United States issued its decision in Alleyne.
Appellant was not sentenced pursuant to any mandatory minimum. See
Pennsylvania Commission on Sentencing Automatic Guideline Form. Rather,
Appellant argues that the Court relied on facts contained in his pre-sentence
report (“PSI”) report that were not submitted to the jury. Appellant’s Brief
(Footnote Continued Next Page)
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decisions are not facts for purposes of 42 Pa.C.S. § 9545(b)(1)(ii).8
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.Super.2013).
Accordingly, Appellant has failed to allege and prove any exception to the
PCRA time bar, and the PCRA court properly dismissed his third PCRA
petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
_______________________
(Footnote Continued)
at 2-3. Hopkins and Alleyne bar the imposition of mandatory minimum
sentences based on facts that were not found by a jury. They do not
preclude the use of a PSI report to determine an appropriate sentence.
8
Further, Appellant’s PCRA petition does not qualify for the new
constitutional right exception to the PCRA time bar. Neither the United
States Supreme Court nor the Pennsylvania Supreme Court has determined
that Alleyne and Hopkins apply retroactively to those whose sentences
were final prior to their issuance. Commonwealth v. Miller, 102 A.3d 988,
995 (Pa.Super.2014); cf. Hopkins, 117 A.3d at 262. Therefore, Appellant’s
PCRA petition does not qualify for the new constitutional right exception to
the PCRA time bar. Miller, 102 A.3d at 905.
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