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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CASHEEM PIERCE,
Appellant No. 2677 EDA 2015
Appeal from the PCRA Order of August 12, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001705-2012
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 12, 2016
Appellant, Casheem Pierce, appeals pro se from the order entered on
August 12, 2015, dismissing his second petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the facts and procedural history of this
case as follows:
On April 18, 2013, [Appellant] entered into an open guilty
plea [to three counts of possession with intent to deliver
narcotics, 35 P.S. § 780–113(a)(30)]. [Appellant] was
sentenced on August 23, 2013 [to an aggregate term of five
to 10 years of imprisonment]. [Appellant] did not file a
post-sentence motion or a [n]otice of [a]ppeal. On March
28, 2014, [Appellant] filed a PCRA [petition]. Counsel was
appointed for [Appellant]. The first PCRA [p]etition was
denied and dismissed on December 16, 2014. [Appellant]
did not appeal that [o]rder.
[Appellant’s] second PCRA [p]etition was filed as a [m]otion
to [m]odify [s]entence on April 17, 2015. The overall basis
for the [p]etition [was Appellant’s] allegation that his
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sentence is illegal based on the unconstitutionality of
mandatory minimum sentences. [Appellant] relie[d] on the
rulings in Alleyne v. United States, 133 S. Ct. [2151]
(2013) and Commonwealth v. Newman, 99 A.3d 86 (Pa.
2014).
PCRA Court Order, 8/12/2015, at 1 n.2. The PCRA court denied relief by
order dated August 12, 2015. This timely appeal resulted.
On appeal, Appellant presents the following issues, pro se, for our
review:
I. Did the PCRA [c]ourt err in denying [Appellant’s]
PCRA [p]etition as facially untimely when fundamental
fairness demands a liberally construed Pennsylvania
Rules of Appellate Procedure (Pa.R.A.P.) Rule 302 due
to the fact that [Appellant] originally filed a “[m]otion
to [m]odify [s]entence?”
II. Did the PCRA [c]ourt err in denying [Appellant’s]
PCRA [p]etition without a hearing when [Appellant]
was sentenced on August 23, 2013; subsequent to
the United States Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. [2151] (2013)
rendered on June 17, 2013, which stare decisis
requires prospective application of the “new rule”
announced in Alleyne in the case sub judice?
III. Did the PCRA [c]ourt err in denying [Appellant’s]
PCRA [p]etition without a hearing when [Appellant’s]
sentence is unconstitutional, ergo illegal under the
“new rule” announced in Alleyne v. United States,
133 S. Ct. (2013) and is “forever void” ab initio
thereby lacking statutory authorization, for which
through inherent power the PCRA [c]ourt always
retains jurisdiction to correct?
Appellant’s Brief at 4.
All of Appellant’s claims are inter-related, thus, we will examine them
together. Essentially, Appellant argues his sentence is illegal because
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although he pled guilty to the aforementioned charges on April 18, 2013, the
trial court nonetheless imposed a mandatory minimum sentence on August
23, 2013 in violation of the United States Supreme Court’s decision in
Alleyne. Accordingly, Appellant argues he was entitled to prospective
application of Alleyne. Id. at 10-13. Appellant contends “the PCRA [c]ourt
always retains jurisdiction to correct his patently illegal sentence.” Id. at
14.
The applicable scope and standard of review is well settled. “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). As
this Court has said, “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.” Commonwealth v.
Lawson, 90 A.3d 1, 4 (Pa. Super 2014). “Timeliness is separate and
distinct from the merits of appellant’s underlying claims,” and without it, “we
simply do not have the legal authority to address the substantive claims.”
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citations
and quotations omitted). Even when a petitioner has sound, legal reasons
for believing his sentence to be illegal, his claim “still must be presented in a
timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.
Super. 2013).
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[The PCRA requires] 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 . . . or at the expiration of time
for seeking 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
are met.[1] 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
timeframe.
Lawson, 90 A.3d at 4-5.
Here, the trial court sentenced Appellant on August 23, 2013, and
Appellant did not file a post-sentence motion or notice of appeal.
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1
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 the 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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Accordingly, Appellant’s judgment of sentence became final on September
23, 2013 when the period for seeking direct appeal expired. See 42
Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903. Thus, Appellant had until September
23, 2014 to file a timely PCRA petition. Appellant filed his current PCRA
petition on April 17, 2015 and, therefore, it is patently untimely.
See 42 Pa.C.S.A. § 9545(b)(1) (“Any petition under [the PCRA], 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 [one of the timeliness exceptions.”).
Furthermore, this Court has previously 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). See Commonwealth v.
Miller, 102 A.3d 988, 995 (Pa. Super. 2014). In Miller, we stated:
Subsection (iii) of Section 9545(b)(1) has two requirements.
First, it provides that 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 provided in
this section. Second, it provides that the right “has been held”
by “that court” to apply retroactively. Thus, a petitioner must
prove that there is a “new” constitutional right and that the right
“has been held” by that court to apply retroactively. The
language “has been held” is in the past tense. These words
mean that the action has already occurred, i.e., “that court” has
already held the new constitutional right to be retroactive to
cases on collateral review. By employing the past tense in
writing this provision, the legislature clearly intended that the
right was already recognized at the time the petition was filed.
* * *
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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 [an a]ppellant’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. Therefore, appellant has failed to satisfy the new
constitutional right exception to the time-bar.
Id. at 994-995. Here, the PCRA court simply did not have jurisdiction to
entertain Appellant’s claim. See Taylor, 65 A.3d 465 (claims challenging
legality of sentence may not be waived but must be preserved in a timely
PCRA petition).
Order affirmed.
Judge Jenkins joins this memorandum. President Judge Emeritus Ford
Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2016
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