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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
VICTOR YOUNG, :
:
Appellant :
: No. 1730 WDA 2015
Appeal from the PCRA Order October 2, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001698-2006
BEFORE: OLSON, DUBOW AND PLATT, JJ.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 11, 2016
Appellant, Victor Young, appeals pro se from the October 2, 2015
Order entered in the Court of Common Pleas of Erie County dismissing
Appellant’s pro se Post Conviction Relief Act (PCRA) Petition as untimely. 42
Pa.C.S. §§9541-9546. We affirm.
On April 3, 2007, Appellant pled guilty but mentally ill to Rape and
Involuntary Deviate Sexual Intercourse.1 On August 1, 2007, the court
sentenced Appellant to an aggregate term of 17 to 34 years’ incarceration.
On August 10, 2007, Appellant filed a Motion to Modify or Reconsider
Sentence, which the sentencing court denied on the same day. Appellant
*
Retired Senior Judge Assigned to the Superior Court.
1
18 Pa.C.S. § 3121(a)(2); 18 Pa.C.S. § 3123(a)(2), respectively.
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did not file an appeal, thus his sentence became final on September 10,
2007, after the period to file a direct appeal expired.2 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 903.
More than seven years later, on July 23, 2015, Appellant filed the
instant PCRA Petition, his fourth. On September 8, 2015, the PRCA court
issued a Notice of Intent to Dismiss Without a Hearing Pursuant to
PA.R.Crim.P. 907. On September 25, 2015, Appellant filed an Objection to
Intent to Dismiss Post Conviction Relief Act Pursuant to Pa.R.Crim.Proc. Rule
907. On October 2, 2015, the PCRA court issued an order dismissing
Appellant’s PCRA Petition as untimely. Order, 10/2/15. Appellant timely
appealed; Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Did the [PCRA] [c]ourt err in denying the [PCRA] Petition without a
hearing by misapprehending the retrospective application in
Commonwealth v. Hopkins, 117 A3d 247 (2015) when it’s
paradigm, Alleyne v. United States, 133 S.Ct. 2151 (2013) created
a “substantive rule,” which “the Constitution requires State Collateral
Review Courts to give retroactive effect to that rule?”
2. Did the [PCRA] Court err in denying the [PCRA] Petition without a
hearing when [Appellant] contends that through the Court’s inherent
power, the [PCRA] [c]ourt always retains jurisdiction to correct his
patently unconstitutional, and therefore illegal sentence?
2
The period for direct appeal expired on Sunday, September 9, 2007.
However, “[w]henever the last day of any such period shall fall on Saturday
or Sunday . . . such day shall be omitted from the computation.” 1 Pa.C.S.
§ 1908.
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3. Did the [PCRA] [c]ourt err in denying the [PCRA] Petition without a
hearing when [Appellant] filed the instant [PCRA] Petition timely by
filing within sixty (60) days of learning of the Supreme Court of
Pennsylvania’s decision in Commonwealth v. Hopkins, 117 A.3d 247
(2015)?
Appellant’s Brief at 4 (reordered for ease of disposition).
In the instant case, our standard of review is well settled:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court's determination and
whether the PCRA court's decision is free of legal error. The
PCRA court's findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015) (quotation and
citation omitted).
A petitioner must file a PCRA petition, including a second or
subsequent petition, within one year of the date that the judgment becomes
final. 42 Pa.C.S. § 9545(b)(1). “If a petition is not filed within the one-year
time frame, the courts lack jurisdiction to grant relief unless the petitioner
can plead and prove that one of the three statutorily-enumerated exceptions
to the time-bar applies.” Commonwealth v. Fowler, 930 A.2d 586, 591
(Pa. Super. 2007).
These exceptions include interference by government official, newly
discovered evidence, and the assertion of a newly recognized constitutional
right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition invoking one or more of
these exceptions must be filed within sixty days of the date the claim first
could have been presented. 42 Pa.C.S. § 9545(b)(2).
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In this case, Appellant had to file a PCRA Petition on or before
September 10, 2008, or within one year of his sentence becoming final, for
it to be timely. 42 Pa.C.S. § 9545(b)(1). Instead, Appellant filed the instant
PCRA Petition on July 23, 2015, almost seven years after his sentence
became final. Therefore, the PCRA Petition was patently untimely. Id.
In Appellant’s first two issues on appeal, he argues that the trial court
incorrectly dismissed his PCRA petition as untimely because an exception to
the time-bar exists, namely a newly recognized constitutional right. See 42
Pa.C.S. § 9545(b)(1)(iii). In response, the PCRA court opines:
Petitioner attempts to establish an exception under § 9545 by
claiming that pursuant to Alleyne v. United States, 133 S.Ct.
2151 (2013), Commonwealth v. Hopkins, 2015 Pa. LEXIS
1282 (Pa. June 15, 2015), and Commonwealth v. Wolfe, 106
A.3d 800 (Pa. Super. 2014) he was subject to an illegal
mandatory minimum sentence. However, Alleyne does not
apply retroactively to cases in which judgment of sentence has
become final. Commonwealth v. Miller, 102 A.3d 988, 995
(Pa. Super. 2014). Furthermore, Hopkins and Wolfe are
factually and legally distinguishable from the case at bar, and
similar to Alleyne, do not apply retroactively to cases in which
judgment of sentence has become final. Petitioners PCRA
[P]etition is untimely, and he has failed to demonstrate a
timeliness exception. Accordingly, this Court has no jurisdiction
to address his claims.
Notice of Intent to Dismiss Without a Hearing Pursuant to Pa.R.Crim.P. 907,
filed 9/8/15, at 3 (footnote omitted). We agree.
The Pennsylvania Supreme Court recently addressed this very issue,
and held unequivocally that “Alleyne does not apply retroactively to cases
pending on collateral review.” Commonwealth v. Washington, No. 37
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EAP 2015, 2016 WL 3909088, at *8 (Pa. July 19, 2016). Accordingly, the
PCRA court was correct in determining that Appellant failed to satisfy the
new constitutional right exception to the time-bar. We find no error.
Appellant’s third argument asserts that his PCRA Petition was timely
because he filed it within sixty days of learning about a new judicial decision,
and that an exception exists pursuant to Section 9545(b)(1)(ii), a newly
discovered fact. See 42 Pa.C.S. §9545(b)(1)(ii). However, this Court has
“expressly rejected the notion that judicial decisions can be considered
newly-discovered facts which would invoke the protections afforded by
section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.
Super. 2013); see also Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.
2011) (“[W]e hold that subsequent decisional law does not amount to a new
‘fact’ under section 9545(b)(1)(ii) of the PCRA”). Accordingly, Appellant’s
claim is without merit.
The trial court did not err when it determined that Appellant’s PCRA
petition was patently untimely and that no exceptions to the time-bar exist.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2016
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