J-A18044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEXANDER WILLIAMS,
Appellant No. 212 MDA 2016
Appeal from the PCRA Order January 12, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002813-2009
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 25, 2016
Appellant Alexander Williams appeals pro se from the Order entered in
the Court of Common Pleas of Berks County on January 12, 2016, denying
as untimely his petition filed pursuant to the Post Conviction Relief Act
(PCRA).1 Upon our review of the record, we affirm.
On September 30, 2010, Appellant entered an open guilty plea to four
counts of delivery of a controlled substance (cocaine) and one count each of
possession with intent to deliver, possession of a firearm, unlawful body
armor and receiving stolen properly.2 Appellant was sentenced to an
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1
42 Pa.C.S.A. §§ 9541-9546.
2
35 P.S. 780-113(a)(30); 35 P.S. 780-113(a)(30); 18 Pa.C.S.A. §
6105(a)(1); 18 Pa.C.S.A. § 907(c); 18 Pa.C.S.A. § 3925(a), respectively.
Appellant’s drug transactions took place within 1,000 feet of Southern Middle
School in Reading.
*Former Justice specially assigned to the Superior Court.
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aggregate term of ten years to twenty years in prison with 333 days’ credit
for time served on September 30, 2010.3 While no post-sentence motions
or a direct appeal was filed, on March 9, 2011, Appellant filed a counseled
PCRA petition in which he successfully alleged the ineffectiveness of plea and
sentencing counsel for failing to file post-sentence motions and a direct
appeal on his behalf. Thereafter, on May 9, 2011, the trial court reinstated
Appellant’s post-sentence motion rights nunc pro tunc.
Appellant filed his nunc pro tunc Post-Sentence Motion to Modify and
Reduce Sentence and after a hearing on July 1, 2011, the trial court denied
the same. Appellant filed a direct appeal on July 7, 2011, wherein he
challenged the discretionary aspects of his sentence. This Court denied his
appeal in an unpublished memorandum decision filed on March 20, 2012.
Appellant filed a pro se PCRA petition on August 3, 2015. Counsel
was appointed and filed a Turner/Finley4 “no-merit” letter, and a petition
to withdraw as counsel on November 24, 2015. After conducting an
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3
A five year mandatory sentence applied to Count Two due to the weight of
the drugs and Appellant’s prior drug conviction. A five year gun and drug
mandatory sentence applied to Count Three, and a five year weight
mandatory applied to Counts Four and Five. A five year gun and drug
mandatory applied to Count Seven. See Trial Court Opinion, filed 9/8/11, at
1; Sentencing Order, filed 9/30/10. The Commonwealth dismissed sixteen
counts that had been filed against Appellant. Also, in light of his cooperation
in an unrelated murder case, it was agreed that Appellant would not be
prosecuted federally.
4
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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independent review of the record and filing a notice of intention to dismiss
Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 on
December 11, 2015, the PCRA court granted counsel’s petition to withdraw
and dismissed the PCRA petition on January 12, 2016.5 Appellant filed a
timely, pro se, appeal from that decision on February 1, 2016, and the PCRA
court directed him to file a concise statement of errors on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied and now presents the following
questions for our review:
1.) Did the PCRA [c]ourt err in dismissing Appellant’s PCRA
petition by failing to apply Alleyne v. United States, 133 S.Ct.
2151 (2013), AND Commonwealth v. Hopkins, 117 A.3d 247 (Pa.
2015), retroactively?
2.) Did the PCRA Court err in dismissing Appellant’s PCRA
petition as untimely where petition was filed within sixty days of
the decision in Commonwealth v. Hopkins, which applied the
new rule announced in Alleyne v. United States[?]
Brief for Appellant at 4.
Initially, we must determine whether Appellant’s PCRA petition was
timely filed. See Commonwealth v. Hutchins, 760 A.2d 50 (Pa. Super.
2000). “Our standard of review of the denial of PCRA relief is clear; we are
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5
Appellant does not challenge the PCRA court's order allowing counsel to
withdraw, nor does he raise any issue with his proceeding pro se on appeal.
We shall not raise sua sponte the propriety of the trial court's order granting
counsel's motion to withdraw. See Commonwealth v. Pitts, 603 Pa. 1, 981
A .2d 875 (2009).
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limited to determining whether the PCRA court’s findings are supported by
the record and without legal error.” Commonwealth v. Wojtaszek, 951
A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 837 A.2d 1157
(Pa. 2003). The most recent amendments to the PCRA, effective January
19, 1996, provide that a PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 the time for seeking review.” 42 Pa.C.S.A. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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
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(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “We emphasize that it is the petitioner
who bears the burden to allege and prove that one of the timeliness
exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa.
2008) (citations omitted).
Instantly, Appellant was sentenced on September 30, 2010, and this
Court affirmed his judgment of sentence on March 20, 2012. Appellant did
not file a petition for allowance of appeal with the Supreme Court.
Therefore, Appellant’s judgment of sentence became final thirty days
thereafter on April 20, 2012. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a
judgment 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[ ]”). In Appellant’s case, a timely first petition for post-conviction
relief would have had to have been filed by April 20, 2013. Appellant filed
the instant PCRA petition on August 3, 2015; therefore, it is patently
untimely. As such, the PCRA court could not address the merits of
Appellant’s petition unless a timeliness exception applies.
Appellant makes no explicit attempt to avail himself of a particular
timeliness exception in his first argument but rather argues his petition is
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not time-barred because he is entitled to retroactive relief under Alleyne v.
United States, 133 S.Ct. 2151 (2013) (holding that “facts that increase
mandatory minimum sentences must be submitted to the jury” and found
beyond a reasonable doubt). Appellant posits that in light of Alleyne “the
mandatory minimum statutes" under which he had been sentenced are
unconstitutional and the Commonwealth is devoid of any authority to
continue to enforce his aggregate sentence, as it violates a “substantive
rule.” Appellant urges that this Court is “constitutionally required to
retroactively apply the new rule announced in Alleyne [sic].” Brief for
Appellant at 9-11.
In his second issue, Appellant further maintains that as he filed his
PCRA petition within sixty days of the decision in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015), it should be deemed to be timely filed.6
Id. at 11. Appellant does not specifically indicate how Hopkins is
determinative herein but rather maintains, inter alia, that the exception to
the PCRA time-bar set forth in 42 Pa.C.S.A. 9545(b)(1)(iii) applies, in that
“[t]he new rule announced in Alleyne is both a substantive rule, as well as a
watershed procedural rule,” and that the “‘60 day time limitation’ is
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6
In Hopkins, our Supreme Court held that 18 Pa.C.S.A. § 6317 which
imposed a mandatory minimum sentence for a drug sale or PWID within
1,000 feet of a school was unconstitutional.
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unconstitutional, or in the very least, inapplicable in the instant matter.’”
Brief for Appellant at 11-12.
As long as this Court has jurisdiction over a matter, a legality of
sentencing issue is reviewable and cannot be waived. Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa.Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA petition. See 42
Pa.C.S.A. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (holding that “[a]lthough a legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits
or one of the exceptions thereto”). As such, an appellant must present an
illegal sentencing claim in a timely PCRA petition over which this Court has
jurisdiction. See Fahy, supra, at 223, and Commonwealth v. Miller, 102
A.3d 988, 994 (Pa.Super. 2014) (observing Alleyne does not invalidate a
mandatory minimum sentence challenged in an untimely PCRA petition).
The United States Supreme Court decided Alleyne on June 17, 2013;
thus, in order to invoke the “constitutional right” exception under 42
Pa.C.S.A. § 9545(b)(1)(iii), Appellant needed to submit his PCRA petition
within sixty days of June 17, 2013. See Commonwealth v. Boyd, 923
A.2d 513, 517 (Pa.Super. 2007) (providing that the sixty day time period
begins to run upon the date of the underlying judicial decision). Appellant
filed the instant PCRA petition on August 3, 2015, well beyond the sixty day
deadline of August 17, 2013. After concluding that Appellant’s PCRA petition
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was untimely and that no exception to the PCRA’s time bar applied, the
PCRA court properly dismissed Appellant’s petition as untimely on January
12, 2016.
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, and 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. Commonwealth v. Phillips,
31 A.3d 317, 320 (Pa.Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d
1059 (2012). Moreover, while this Court recently held in Commonwealth
v. Ciccone, ___ A.3d ____, 2016 PA Super 149, *20-21 (en banc) (filed
July 12, 2016) that an appellant is entitled to relief when he challenges the
legality of his sentence pursuant to Alleyne in a timely PCRA petition, that
holding is not dispositive herein, for Appellant’s PCRA was untimely filed. In
this regard, as previously noted, in Miller, supra, this Court observed that
Alleyne does not invalidate a mandatory minimum sentence when a
challenge thereto is presented in an untimely PCRA petition. See also
Fahy, supra.
Appellant next avers that as he filed his PCRA petition within sixty
days of our Supreme Court’s decision in Hopkins, supra, which in turn
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applied Alleyne, the PCRA court erred in dismissing his petition as untimely.
Appellant is correct that he filed his PCRA petition within sixty days of June
15, 2015, the date upon which our Supreme Court held that under Alleyne
the mandatory minimum sentencing scheme set forth in 18 Pa.C.S. § 6317
(“Drug-free school zones”) is unconstitutional in its entirety, as certain
provisions of the statute do not adhere to Alleyne's rule and are not
severable from the remaining portions of the statute. Hopkins, 117 A.3d at
262. However, contrary to Appellant’s claim, the Hopkins decision did not
announce a “new rule,” but rather simply assessed the validity of Section
6317 under Alleyne and concluded that particular mandatory minimum
sentencing statute is unconstitutional. Nevertheless, even if Hopkins had
announced a new rule, neither our Supreme Court nor the United States
Supreme Court has held that Hopkins applies retroactively to post
conviction petitioners such as Appellant. Consequently, to the extent
Appellant attempts to rely on Hopkins, he has not satisfied the timeliness
exception of Section 9545(b)(1)(iii).
Accordingly, for the aforementioned reasons, we conclude that
Appellant has not proven the applicability of any exception to the PCRA’s
timeliness requirements. Thus, the PCRA court clacked jurisdiction to
consider the merits of his claims and did not err when it denied his PCRA
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2016
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