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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MCARTHUR FRANK HICKSON
Appellant No. 529 MDA 2016
Appeal from the PCRA Order March 17, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004746-2009
BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 07, 2016
McArthur Hickson appeals from the denial of his “application for
clarification”, which the court treated as his third petition under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.
On or about February 19, 2009, the Commonwealth filed an
information at CP-06-CR-0000606-2009 charging Hickson with drug-related
offenses. On November 12, 2009, the Commonwealth filed a second
information at CP-06-CR-0004746-2009 charging Hickson with additional
drug-related offenses.
On September 9, 2010, Hickson entered a negotiated guilty plea at
both caption numbers to possession with intent to deliver a controlled
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substance - cocaine and persons not to use, manufacture, control, sell or
transfer firearms.1 At each caption number, the court sentenced Hickson to
8 - 20 years’ imprisonment. The sentences at each caption number ran
concurrently. Hickson filed a timely direct appeal, which this Court
dismissed on September 29, 2011 due to his failure to file a brief.
On December 21, 2011, Hickson filed a PCRA petition. The court
appointed PCRA counsel, who filed a no-merit letter and requested leave to
withdraw as counsel. On February 15, 2012, the PCRA court granted
counsel leave to withdraw and issued a notice of intent to dismiss the
petition without a hearing. On March 12, 2012, the PCRA court dismissed
the petition. On September 14, 2012, this Court affirmed at 619-620 MDA
2012.
On January 6, 2015, Hickson filed a petition for writ of habeas corpus,
which the court treated as a second PCRA petition. On February 4, 2015,
Hickson filed a supplement to this petition. On February 18, 2015, the PCRA
court issued a notice of intent to dismiss the petition without a hearing.
Although Hickson filed an objection to this dismissal on March 12, 2015, the
PCRA court dismissed the petition on March 17, 2015. On September 24,
2015, this Court affirmed, and on February 8, 2016, our Supreme Court
denied Hickson’s petition for allowance of appeal.
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1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 6105, respectively.
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On March 7, 2016, Hickson filed the petition presently in question, an
“application for clarification” asserting that the maximum portion of his
sentence should be ten years instead of twenty years. On March 17, 2016,
the court dismissed this petition. Hickson filed a timely notice of appeal, and
both Hickson and the PCRA court complied with Pa.R.A.P. 1925. The court
observed in its Rule 1925 opinion that it treated Hickson’s petition as a
request for relief under the PCRA.
Hickson raises one issue in this appeal:
The trial court abused its discretion in dismissing [Hickson’s]
application for clarification seeking the statute under
Pennsylvania law that it received statutory authority from to
impose the (20) year maximum sentence for possession with
intent to distribute a controlled substance 35 P.S. § 780-
113(a)(30) where the maximum possible sentence is 10 years.
Brief For Appellant, at 8. Simply put, Hickson claims that his maximum
sentence of twenty years is illegal under Pennsylvania law.
The trial court properly treated Hickson’s petition for clarification as a
PCRA petition, because it challenges the legality of his sentence, an issue
squarely within the confines of the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vii)
(relief available under PCRA for “the imposition of a sentence greater than
the lawful maximum”).
Before we address the merits of Hickson’s argument, we must
determine whether his PCRA petition was timely. The timeliness of a PCRA
petition implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
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denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord
finality to the collateral review process[,]” the PCRA “confers no authority
upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA
timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With
respect to jurisdiction under the PCRA, this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. 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
time for seeking the review.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed
more than one year after the judgment of sentence becomes final only if the
claim falls within one of the following three statutory exceptions, which the
petitioner must plead and prove:
(i) the failure to raise the claim was the result of
interference by 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
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(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). Further, if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Hickson’s judgment of sentence became final on Monday,
October 31, 2011,2 his deadline for filing a petition for allowance of appeal
with our Supreme Court in his direct appeal. See 42 Pa.C.S. § 9545(b)(3).
Accordingly, he had until October 31, 2012 to file a timely PCRA petition.
See 42 Pa.C.S. § 9545(b)(1). He filed the present PCRA petition on March
7, 2016. Thus, his petition is patently untimely, and we must determine
whether he has pled and proved any of the exceptions to the PCRA time
limitation. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Hickson fails to satisfy any of these exceptions. His claim that he
received an illegal sentence does not implicate government interference or
constitute newly discovered evidence (sections 9545(b)(1)(i)-(ii)). Nor does
Hickson contend that his sentence violates a constitutional right that the
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2
The thirtieth day after this Court dismissed Hickson’s direct appeal,
October 29, 2011, fell on a Saturday, thus extending the time for appealing
to the Supreme Court to Monday, October 31, 2011.
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United States Supreme Court or Pennsylvania Supreme Court has held to
apply retroactively (section 9545(b)(1)(iii)).3
Because Hickson failed to plead and prove any of the statutory
exceptions to the PCRA time limitation, the PCRA court correctly determined
that it lacked jurisdiction to hear this untimely PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
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3
Although petitioners cannot waive illegal sentence claims, they must still
raise such claims in a timely PCRA petition. Commonwealth v. Taylor, 5
A.3d 462, 465 (Pa.Super.2013). Hickson failed to do so here.
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