J-S40028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CURTIS L. SELF, SR.
Appellant No. 3091 EDA 2015
Appeal from the PCRA Order September 15, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003439-2007
CP-15-CR-0004336-2007
CP-15-CR-0004337-2007
CP-15-CR-0004338-2007
CP-15-CR-0004339-2007
BEFORE: BOWES, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 07, 2016
Appellant, Curtis L. Self, Sr., files this counseled appeal from the
September 15, 2015, order dismissing his second petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, for lack of
jurisdiction. We affirm.
The PCRA court summarized the pertinent factual and procedural
history of this case as follows:
On January 5, 2009, Defendant pled guilty to 5 counts of
Possession with Intent to deliver Cocaine, 35 P.S. § 780 -
113-A-30 on Criminal Information Numbers CP-15-CR-
0003439-2007, CP-15-CR-0004336-2007, CP-15-CR-
0004337-2007; CP-15-CR-0004338-2007, and CP-15-CR-
0004339-2007. Given the amount of cocaine sold by
Defendant in these transactions, and the fact that each
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sale was a subsequent drug delivery, the Commonwealth
invoked the mandatory minimum of 5 years imprisonment
on dockets 4336-07, 4337-07, 4338-07 and 4339-07. The
2 year mandatory on 4339-07 for the drug sale within a
school zone was waived, and a 7 year mandatory minimum
was invoked on 3439-07 based on the weight of the drugs
exceeding 100 grams. The court imposed an aggregate
sentence of 17 to 34 years imprisonment.
***
On January 28, 2010, the Superior Court affirmed the
judgment of sentence and denied Defendant's motion for
remand for resentencing. Commonwealth v. Curtis Self,
616 EDA 2009. Defendant did not file a Petition for
Allowance of Appeal. Therefore, Defendant's judgment of
sentence became final on February 28, 2010, 30 days after
the time period for seeking allocatur expired. See
Pa.R.A.P. 1113(a); See also, Commonwealth v. Brown,
943 A.2d 264 (Pa., 2008). Although Defendant timely filed
his first PCRA petition on January 6, 2011, the trial court
dismissed the petition on September 30, 2011. On appeal
the Superior Court affirmed the dismissal of Defendant's
first PCRA petition. Commonwealth v. Curtis Self, 2868
EDA 2011 [Nov. 15, 2012; alloc. denied May 7, 2013].
Defendant's second PCRA petition was filed on July 5,
2013, three years and four months after his judgment of
sentence became final.
PCRA Court Order, 9/15/15, at 2-4 n.1.
Appellant’s second PCRA petition asserts ineffective assistance of his
direct appeal counsel. Appellant states that subsequent to his sentencing in
2009, he cooperated with the Chester County District Attorney’s Office in the
successful prosecution of Shamone Woods, who attempted to kill Appellant
in 2006. Appellant believed that the prosecutor in the matter informed him
and his direct appeal counsel that, in exchange, he would receive a new
sentencing hearing and a reduction in sentence, neither of which ultimately
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happened. Appellant argues that direct appeal counsel failed to pursue new
sentencing and/or sentence reduction on his behalf and that this constitutes
ineffective assistance of counsel. Second PCRA Petition, 7/5/13, at 2.
After several intermittent filings, the PCRA court issued a Rule 907(1)
Notice of Intent to Dismiss Appellant’s petition on March 19, 2014. The
PCRA court found Appellant’s argument lacked arguable merit because
Appellant’s counsel had unsuccessfully raised Appellant’s purported
cooperation with police regarding the attempt on his life at the time of his
sentencing. Notice of Intent to Dismiss, 3/19/14, at 11.
The PCRA court also found that Appellant presented no evidence of
any promise or agreement that Appellant’s sentence would be reconsidered
in exchange for testimony against Mr. Woods. Id. at 11-12. In addition,
the PCRA court said it would find that Appellant’s claims of cooperation with
police had been litigated in his first PCRA petition, which raised them in a
claim that the Commonwealth made misrepresentations to the trial court
under Brady v. Maryland, 373 A.2d 83 (1963), and that they therefore
could not be raised in a second petition. Notice of Intent to Dismiss at 11-
12, 14-15.
Thereafter, according to the PCRA court, on April 7, 2014, Appellant
filed a pro se "Petition for Extension of Time to File Objections" to the court’s
Dismissal Notice, seeking more time than the 20 days granted by Criminal
Rule 907. By an order entered on April 15, 2014, the court granted the
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extension and directed Appellant to file his response by June 6, 2014. No
such substantive response was filed. At that point, pursuant to Criminal
Rule 907, the PCRA court was empowered to dismiss the petition, grant
leave to file an amended petition, or direct that the proceedings continue. It
is unclear from the docket what happened next, but it appears the petition
was not dismissed at that time.
A year later, on June 15, 2015, Appellant, without leave of court, filed
a pro se "Amendment to Post-Conviction Relief Act Petition." In that filing,
he raised for the first time a challenge to the trial court's imposition of
mandatory minimum sentences under Alleyne v. United States, 133 S. Ct.
2151 (2013) (holding that facts that increase a mandatory minimum
sentence are elements of the offense and must be proven to the jury beyond
a reasonable doubt).
The PCRA court ultimately dismissed Appellant’s second PCRA petition
for lack of jurisdiction, holding that the petition failed to meet the PCRA’s
jurisdictional filing deadlines. The court’s September 15, 2015, order
observed that Appellant “has not alleged in his second Petition that he meets
an exception to the time-bar,” but added that Appellant’s June 15, 2015
“amendment” to his second PCRA petition “implicitly” invoked one of the
exceptions by seeking relief under the Alleyne decision. PCRA Court Order,
9/15/15, at 4. The court interpreted the reference to Alleyne as an
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invocation of the PCRA time bar’s “newly recognized constitutional right”
exception under 42 Pa.C.S. § 9545(b)(1)(iii).
The PCRA court held that both the July 5, 2013, PCRA petition and the
June 15, 2015, pro se amendment to that petition were untimely, as neither
were filed within 60 days of the date the claims set forth could have been
presented. See 42 Pa.C.S. § 9545(b)(2). PCRA Court Order, 9/15/15, at 4.
The court added that Appellant’s reliance on Alleyne did not trigger the
“new constitutional right” exception to the PCRA’s jurisdictional time bar
because Alleyne had not been held to apply retroactively. Id. at 5. The
court observed that illegal sentence claims under Alleyne are subject to the
same jurisdictional limitations as other claims. Id. (quoting
Commonwealth v. Seskey, 86 A.3d 237, 241-42 (Pa. Super. 2014)).
On this appeal, Appellant raises the following issues, as stated:
1. Whether the PCRA Court erred when it found that
the second PCRA petition was untimely?
2. Whether [Commonwealth v. Hopkins, 117 A.3d
247 (Pa. 2015),] is automatically retroactive to
collateral review because it is the first
interpretation by the State’s highest court of the
constitutionality of criminal statutes authorizing
the imposition of mandatory sentences on a class
of criminal defendants?
3. Whether the PCRA Court must exercise
jurisdiction to vacate a sentence that is illegal,
unconstitutional, and void?
Appellant’s Brief at 1-2. In a December 10, 2015, Rule 1925 Opinion, the
Court variously referenced both its March 2014 Notice of Intent to Dismiss
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and its September 2015 Order, both of which provided the court’s
substantive explanations for its determinations. PCRA Ct. Op., 12/10/15.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is “whether the determination of the PCRA court is
supported by the evidence of record and 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. Barndt, 74 A.3d 185,
191-92 (Pa. Super. 2013) (internal citations omitted).
As the PCRA court correctly held, the timeliness of a post-conviction
petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651
(Pa. Super. 2013). Generally, a petition for relief under the PCRA, including
a second or subsequent petition, must be filed within one year of the date
the judgment is final unless the petition alleges, and the petitioner proves,
one of the three statutory exceptions to these time limitations set forth in
Section 9545(b)(1) of the statute. See 42 Pa.C.S. § 9545(b).1 A PCRA
____________________________________________
1
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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
(Footnote Continued Next Page)
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petition invoking one of these statutory exceptions must “be filed within 60
days of the date the claims could have been presented.” Hernandez, 79
A.3d at 651-52; see also 42 Pa.C.S. § 9545(b)(2). Any asserted exceptions
to the time limitations must be alleged in the petition to the PCRA court;
they may not be raised for the first time on appeal. Commonwealth v.
Burton, 936 A.2d 521, 525 (Pa. Super. 2007).
Appellant’s petition did not meet these requirements. The petition,
filed on July 5, 2013, asserted that his direct appeal counsel was ineffective
for failure to pursue a sentence reduction based on Appellant’s purported
“cooperation” with law enforcement in another crime. But the PCRA court
found that Appellant’s trial-level counsel did raise that issue at sentencing,
and, in addition, that Appellant raised a variation on that same theme in his
first PCRA petition. In the court’s words, the claims raised in Appellant’s
current petition “are nothing more than a new slant on the Brady claims
decided adversely to Appellant by [the] Superior Court in his first PCRA
appeal.” PCRA Op., 12/10/15, at 11. Generally, a defendant should wait to
raise claims of ineffective assistance of counsel until collateral review,
_______________________
(Footnote Continued)
(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. § 9545(b)(1).
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Commonwealth v. Grant, 13 A.2d 726 (Pa. 2002), but Appellant has
pleaded no reason why he could not have raised his claim of ineffective
assistance of direct appeal counsel at the same time as he made his related
arguments in his first PCRA petition regarding sentence reduction for
cooperation with law enforcement. The claim therefore is time-barred and
the PCRA court correctly held that it lacked jurisdiction to hear it.
To escape this result, Appellant relies on Commonwealth v. Lark,
746 A.2d 585 (Pa. 2000), in which the Supreme Court of Pennsylvania held
that a new PCRA petition may not be filed while an appeal from an earlier
PCRA petition is pending. Appellant argues that, under Lark, a pending
PCRA petition “’tolls’ the PCRA time clock until appeals have been exhausted,
and the record has been sent back to the trial court.” Appellant’s Br. at 4
(emphasis deleted).
Appellant claims that his first PCRA petition was filed 54 days before
the PCRA time deadline for filing that petition.2 According to Appellant, Lark
entitles him to make use of those 54 days to file a second PCRA petition in
which he can make any additional PCRA argument that he could have made
when he filed his first petition, so long as he files that second petition within
54 days after the close of appellate proceedings on the first petition. Thus,
____________________________________________
2
According to Appellant, the judgment became final when this Court
affirmed on February 28, 2010. Under the PCRA, Appellant had one year
within which to file his first PCRA petition, but he instead filed it 54 days
earlier, on January 6, 2011.
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Appellant contends that because he filed his second PCRA petition less than
54 days after appellate proceedings in his first PCRA appeal ended, his
second PCRA petition was timely filed.3
Neither Lark nor any other decision cited by Appellant supports this
novel argument, and we reject it. In Lark, the petitioner sought to file a
new PCRA petition based on facts that were not known to him and could not
have been discovered prior to or during the time his earlier petition was
pending on appeal. Thus, the new petition was based on the “new evidence”
exception to the PCRA’s time deadlines in Section 9545(b)(1)(ii) of the
statute. The Court in Lark held that any petition raising that new ground for
relief would be premature until the proceedings on the prior petition were
completed, and it therefore tolled the time for filing the new petition until
completion of that earlier proceeding. But Lark did not hold that a claim
that could have been filed earlier, and was otherwise time-barred under the
statute, could be filed late just because an earlier PCRA petition in which
that claim could have been (but was not) raised remained on appeal.
Rather than Lark, the controlling precedent here is Commonwealth
v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008), in which the petitioner sought to
bring a new claim that was found untimely because it did not qualify under
____________________________________________
3
Appellant contends that proceedings on his first PCRA petition ended
on June 6, 2013 (30 days after the May 7, 2013 denial of allocatur by the
Supreme Court). Appellant filed his second petition 29 days later, on July 5,
2013.
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any of the exceptions to the PCRA’s time bar in 42 Pa.C.S. § 9545(b)(1).
Specifically, the subsequent petition in Abu-Jamal did little more than
reiterate the claims in his prior petitions and did not posit truly new evidence
or facts “unknown to the petitioner [that] could not have been ascertained
by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii). Accordingly,
the new petition was time-barred, despite its filing after proceedings on an
earlier petition were completed.
Here, as in Abu-Jamal, Appellant’s petition does not present new
evidence or facts sufficient to meet any of the exceptions set forth in Section
9545(b)(1). Appellant argues that his June 2015 pro se “amendment” to the
petition4 in which he cited Alleyne was sufficient to meet the timeliness
exception applicable to a “new constitutional rule” under Section
9545(b)(1)(iii). But that exception applies only if “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. § 9545(b)(1)(iii) (emphasis added). As the PCRA court explained
in its September 15, 2015 order, Alleyne has not been held to be
retroactively applicable to cases where a judgment of sentence has already
____________________________________________
4
The PCRA court noted that this “amendment” was not filed with leave of
court and was itself untimely. It therefore would be insufficient to meet the
statute’s jurisdictional requirements even if it had raised a valid exception
under Section 9545(b)(1).
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become final. PCRA Order, 9/15/15, at 4 (citing Commonwealth v. Miller,
102 A.3d 988 (Pa. Super. 2014)). Indeed, after the PCRA court issued its
order, the Supreme Court of Pennsylvania, in Commonwealth v.
Washington, 2016 WL 3909088 (Pa. July 19, 2016), confirmed that
“Alleyne does not apply retroactively to cases pending on collateral review.”
Id. at *7.
In his brief, Appellant also relies on Commonwealth v. Hopkins, 117
A.3d 247 (Pa. 2015), which declared Pennsylvania mandatory minimum
sentencing statutes unconstitutional. But Appellant notes in his brief,
Hopkins “was based on Alleyne,” Appellant’s Br. at 10. Like Alleyne,
Hopkins has not been held to apply retroactively, and, in light of Miller and
Washington, Appellant’s invocation of Hopkins therefore does not compel
a different result. Thus, Appellant may not assert a claim based on Alleyne
or Hopkins and may not invoke a new constitutional rule under those
decisions to excuse the untimeliness of his petition.
The PCRA court thus correctly held that it had no jurisdiction over this
untimely pro se amendment to Appellant’s second PCRA petition and that
this lack of jurisdiction also precluded consideration of any claims
challenging the legality of Appellant’s sentence. Accordingly, the PCRA court
correctly dismissed Appellant’s latest PCRA petition. We therefore affirm the
PCRA court’s order denying Appellant post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
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