J-S48009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VAUGHN E. JAMES
Appellant No. 1012 WDA 2015
Appeal from the PCRA Order May 18, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000990-2011
CP-02-CR-0004395-2011
CP-02-CR-0015955-2008
BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J: FILED AUGUST 19, 2016
Vaughn E. James appeals from the May 18, 2015 order dismissing his
second PCRA petition. We affirm.
This appeal encompasses three underlying criminal cases. At criminal
action 15955 of 2008, on March 15, 2011, Appellant tendered a negotiated
guilty plea. In exchange for a two to six year term, Appellant pled guilty to
one count each of possession of a controlled substance with intent to deliver
(“PWID), obstruction of justice, possession of marijuana, and resisting arrest
and two counts of possession of a controlled substance. On July 18, 2011,
at case number 990 of 2011, which was initiated by the Office of the
Attorney General of Pennsylvania, Appellant entered a negotiated guilty plea
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to two counts of corrupt organizations, thirteen counts of delivery of a
controlled substance (including cocaine, heroin, and marijuana), eight counts
of PWID, and one count each of conspiracy, prohibited sale or transfer of a
firearm, carrying an unlicensed firearm, and receiving stolen property. The
negotiated sentence in that case was eleven to twenty-two years of
incarceration followed by a probationary term of a maximum of three
months. There was also a five-year mandatory term of imprisonment that
was to be imposed in that action, but it had to run concurrently to the
above-described sentence.
That same day, July 18, 2011, at action number 4395 of 2011,
Appellant pled guilty to two counts of PWID (cocaine) in return for imposition
of a mandatory minimum term and withdrawal of two other offenses. The
sentence at this matter was to be imposed concurrently with that at 990 of
2011. Appellant accepted the mandatory minimum sentences to protect his
girlfriend, his co-defendant, from a jail term.
On July 18, 2011, Appellant was sentenced in all three cases in
accordance with the above-negotiated agreement with the exception that his
maximum sentence in the 2008 case was reduced as it was set at four
rather than six years. In addition, the court granted the Commonwealth
restitution for the amount that it expended to purchase drugs pursuant to
controlled buys, which amounted to $14,440 in the 2011 cases and
$12,864.96 in the 2008 action.
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Appellant did not file a direct appeal. On March 2, 2012, Appellant
filed a timely pro se PCRA petition at all three docket numbers. Counsel was
appointed and filed a petition to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc). Counsel was allowed to withdraw and
PCRA relief was denied. Appellant filed a pro se notice of appeal and raised
numerous issues on appeal, including a claim that the restitution award was
improper. We agreed with that position on the basis that the imposition of
restitution violated the terms of the plea agreement. Upon remand, the trial
court struck all restitution.
On April 14, 2015, Appellant filed his second petition seeking post-
conviction relief by arguing that his sentence was unconstitutional as it
included application of mandatory minimum sentences that were
unconstitutional under Alleyne v. United States, 133 S.Ct. 2151 (2013).
In Alleyne, the United States Supreme Court held that any fact, other than
the existence of a prior conviction, that invokes application of a mandatory
minimum sentence must be submitted to a jury and proven beyond a
reasonable doubt. Various mandatory minimum sentencing provisions,
including the one applied herein, have been declared void and
unconstitutional under Alleyne, but the cases were direct appeals from
imposition of a judgment of sentence.
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On April 22, 2015, the PCRA court herein issued notice of its intent to
dismiss the petition without a hearing, and, on May 19, 2015, it denied PCRA
relief. This pro se appeal followed. Appellant raises these positions for our
review:
1. Is Appellant's sentence illegal and unconstitutional pursuant to
recent decisions declaring 18 Pa.C.S.A. §7508 unconstitutional
[under Alleyne, supra]?
2. Since Appellant's sentence is unconstitutional is Appellant
entitled to resentencing in that his sentence is illegal?
Appellant’s brief at 4.
We first outline our standard of review:
Under the applicable standard of review, we must determine
whether the ruling of the PCRA court is supported by the record
and is free of legal error. Commonwealth v. Marshall, 596 Pa.
587, 947 A.2d 714, 719 (2008). The PCRA court's credibility
determinations, when supported by the record, are binding on
this Court. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d
523, 532, 539 (2009). However, this Court applies a de novo
standard of review to the PCRA court's legal conclusions.
Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810
(2007).
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). Accord
Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“If supported by
the record, the PCRA court's credibility determinations and factual findings
are binding on this Court; however, we apply a de novo standard of review
to the PCRA court's legal conclusions.”).
Before we can address the merits of any of Appellant’s positions, we
must determine whether Appellant’s April 14, 2015 PCRA petition was timely
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filed as that issue implicates our jurisdiction. Commonwealth v. Miller,
102 A.3d 988 (Pa.Super. 2014). If a PCRA petition is untimely, “neither this
Court nor the trial court has jurisdiction over the petition.” Id. at 992
(citation omitted); see Commonwealth v. Chester, 895 A.2d 520, 522
(Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the trial
court has jurisdiction over the petition. Without jurisdiction, we simply do
not have the legal authority to address the substantive claims.”).
Any PCRA petition has to be filed within one year of the date the
defendant’s judgment becomes final unless an exception to the one-year
time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must
determine when Appellant’s judgment of sentence became final. “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.” 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not file a
direct appeal from his July 18, 2011 judgment of sentence, that sentence
became final thirty days later, or on August 17, 2011. Appellant had until
August 17, 2012, to file a timely PCRA petition, and his April 14, 2015
petition is untimely.
There are three exceptions to the one-year time bar of § 9545: 1)
governmental officials interfered with presentation of the claim; 2) the facts
underlying the claim were unknown to the defendant and could not have
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been discovered by the exercise of due diligence; and 3) the right asserted
is a constitutional right that was recognized by our Supreme Court or the
United States Supreme Court after a defendant’s judgment of sentence
became final and the Supreme Court or the United States Supreme Court
has held that right to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i-iii). To
invoke an exception, the petitioner must plead and prove it.
Commonwealth v. Beasley, 741 A.2d 1258, 1261-62 (Pa. 1999)
(petitioner has burden to plead and prove exceptions). In addition, any
exception must be raised within sixty days of the date the claim could have
been presented. 42 Pa.C.S. § 9545(b)(2).
Herein, Appellant does not specifically invoke the newly-recognized
constitutional right exception to the PCRA time requirements. He simply
notes that the mandatory minimum sentencing provision in question, as well
as others, have been struck down in their entirety as unconstitutional under
Alleyne and that his sentence is unconstitutional and illegal. He also
observes that legality of sentence issues cannot be waived.
Our Supreme Court recently ruled that Alleyne does not apply
retroactively to attacks upon mandatory minimum sentences advanced on
collateral review. Commonwealth v. Washington, 2016 WL 3909088 (Pa.
July 19, 2016). Under Washington, Appellant cannot, by means of a PCRA
petition, attack the validity of his sentence on the bases that it included
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imposition of mandatory minimum sentences that were rendered
unconstitutional under Alleyne.
Additionally, an attack to the legality of a sentence, even though non-
waivable, still must be brought pursuant to a timely PCRA petition. See
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (although legality
of sentence is always subject to review within PCRA, claims must still first
satisfy the PCRA’s time limits or a statutory exception). Thus, Appellant’s
assertion that he is serving an illegal sentence fails to overcome the PCRA’s
time bar.
Moreover, even to the extent that we treat Appellant’s citation to
Alleyne as leveling a basis to circumvent the time bar, his claim fails for
another reason. Appellant failed to satisfy the threshold requirement of
asserting the statutory exception within sixty days of the date the claim
could be presented. See 42 Pa.C.S. § 9545(b)(2). The United States
Supreme Court decided Alleyne on June 17, 2013, and Appellant did not
filed his petition seeking relief under its provisions until April 14, 2015,
nearly two years after that case was decided. Appellant cannot obtain relief
under Alleyne under this untimely filed PCRA petition. Hence, we affirm the
denial of relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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