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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
AHMAAD RASHAD HOLTON
Appellant No. 1756 MDA 2015
Appeal from the PCRA Order September 22, 2015
in the Court of Common Pleas of Dauphin County Criminal Division
at No(s): CP-22-CR-0001297-2011
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 15, 2016
Appellant, Ahmaad Rashad Holton, appeals pro se from the order
entered in the Dauphin County Court of Common Pleas dismissing his second
Post Conviction Relief Act1 (“PCRA”) petition. Appellant contends that his
guilty plea counsel was ineffective and also avers that the trial court erred
by failing to apply Alleyne v. United States, 133 S. Ct. 2151 (2013)
retroactively. We affirm.
On September 21, 2011, Appellant entered a negotiated guilty plea to
robbery, criminal conspiracy, person not to possess firearms, and carrying a
firearm without a license. That same day, the trial court sentenced him to
an aggregate term of eleven to twenty-two years of imprisonment.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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Appellant did not file a post-sentence motion or direct appeal. On October
3, 2011, Appellant filed a timely pro se PCRA petition. Counsel was
appointed on October 5, 2011, and was subsequently granted leave to file a
supplemental PCRA petition on behalf of Appellant. However, PCRA counsel
filed a motion 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), which the PCRA court granted by order dated
December 2, 2011. On December 28, 2011, the PCRA court issued an order
dismissing Appellant’s first PCRA petition. Appellant filed a timely appeal,
which this Court dismissed on May 8, 2012.
Over two years later, on December 12, 2014, Appellant filed the
instant, pro se PCRA petition. After the PCRA court denied Appellant’s
motion for the assignment of counsel but granted him an extension of time,
Appellant ultimately filed a supplemental PCRA petition on April 6, 2015. On
July 2, 2015, the PCRA court issued a memorandum opinion and order
containing the court’s Pa.R.Crim.P. 907 notice of intent to dismiss
Appellant’s second PCRA petition. On September 22, 2015, the PCRA court
dismissed Appellant’s petition. Appellant filed a timely appeal and a court-
2
ordered Pa.R.A.P. 1925(b) statement. On December 29, 2015, the PCRA
2
We note that the PCRA court found Appellant’s instant claims to be waived
due to his failure to file a timely Pa.R.A.P. 1925(b) statement of matters
complained of on appeal. Trial Ct. Op., 12/28/15. Conversely, Appellant
contends that he did file a timely Rule 1925(b) statement, based upon the
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court filed a Pa.R.A.P. 1925(a) opinion incorporating the analysis set forth in
its Rule 907 notice of intent to dismiss.
This appeal followed wherein Appellant raises the following issues for
our review:
1. Whether plea counsel (Deanna Muller, Esq. and Royce
Morris, Esq.) rendered ineffective assistance of counsel by
inducing Appellant to plead guilty to an aggregated
sentence that ran consecutively which created a sentence
that was manifestly excessive and clearly unreasonable.?
2. Whether plea counsel (supra) were ineffective for failing
to conduct an independent inquiry as to whether
Appellant’s plea colloquy was knowing, voluntary and
intelligent?
3. Did the trial court err in asserting that Alleyne v.
United States did not apply retroactively to those on
collateral review, where the Supreme Court’s ruling is
clearly one of a “substantial nature” pursuant to Schriro
v. Summerline, 542 US 348 (2004)[?]
Appellant’s Brief at 3.
Appellant argues that his plea counsel was ineffective for inducing him
to plead guilty to a manifestly excessive sentence and for failing to ensure
that his guilty plea was knowing, voluntary, and intelligent. Id. Appellant
also contends that his sentence is illegal pursuant to Alleyne, 133 S. Ct. at
2163 (holding that any fact that invokes application of a mandatory
timing in which he received the PCRA court’s order directing him to file such
statement from the SCI-Houtzdale institutional mail. Appellant’s Letter to
Prothonotary, filed 6/06/16. For purposes of this appeal, we assume that
Appellant’s Rule 1925(b) statement was timely.
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minimum sentence must be proven beyond a reasonable doubt and
submitted to a jury). Id.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
However, it is well established that the timeliness requirements of the PCRA
are jurisdictional in nature as our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 ([Pa.]
2000) (stating that “given the fact that the PCRA’s
timeliness requirements are mandatory and jurisdictional
in nature, no court may properly disregard or alter them in
order to reach the merits of the claims raised in a PCRA
petition that is filed in an untimely manner”);
Commonwealth v. Fahy, 737 A.2d 214, 220 ([Pa.] 1999)
(holding that where a petitioner fails to satisfy the PCRA
time requirements, this Court has no jurisdiction to
entertain the petition). We have also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e] Court will consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the
requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (some
citations and parallel citations omitted).
A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
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could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (some citations and footnote omitted). Pursuant to 42
Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of
direct review by this Court or the United States Supreme Court, or at the
expiration of the time seeking such review.” Commonwealth v. Jones, 54
A.3d 14, 17 (Pa. 2012) (citations omitted).
When a petition is filed outside the one-year time limit, petitioners
must plead and prove the applicability of one of the three exceptions to the
PCRA timing requirements. Commonwealth v. Johnston, 42 A.3d 1120,
1126 (Pa. Super. 2012) (“If the petition is determined to be untimely, and
no exception has been pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are without jurisdiction to
consider the merits of the petition.” (citation omitted)). The three
exceptions to the general one-year time limitation are:
(i) the failure to raise the claim previously 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
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii).
In the case sub judice, Appellant did not file a direct appeal and
therefore his judgment of sentence became final thirty days after his
September 2011 sentencing. See Jones, 54 A.3d at 17; 42 Pa.C.S. §
9545(b)(3). Thus, his instant PCRA petition, which was filed in December
2014, is untimely on its face. Appellant does not assert that any of the
exceptions in Section 9545(b)(i)-(iii) apply to this case. Accordingly, the
PCRA court lacked jurisdiction to consider the merits of Appellant’s claim and
we cannot address his PCRA petition. See Johnston, 42 A.3d at 1126.
Further, it is of no moment that the PCRA court did not specifically address
the untimely nature of Appellant’s PCRA petition, because this Court will
address this threshold question sua sponte. See Whitney, 817 A.2d at
477-78.
We note that even had Appellant argued that his Alleyne claim
constituted an after-discovered constitutional right pursuant to the PCRA
time-bar exception 42 Pa.C.S. § 9545(b)(1)(iii), his claim would lack merit.
Neither the United States Supreme Court nor the Pennsylvania Supreme
Court has held that Alleyne applies retroactively to untimely PCRA petitions.
Indeed, our Supreme Court recently held that Alleyne does not apply
retroactively to cases pending on collateral review. Commonwealth v.
Washington, ___ A.3d ___ , ___ , 2016 WL 3909088 at *8 (Pa. July 19,
2016). Accordingly, because Appellant has not established any of the
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timeliness exceptions to the PCRA time-bar, the PCRA court lacked
jurisdiction to address his claims and we affirm the dismissal of Appellant’s
instant untimely PCRA petition. See Johnston, 42 A.3d at 1126.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2016
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