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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EDWARD GALLOWAY SCHWARTZ, JR., : No. 977 EDA 2016
:
Appellant :
Appeal from the PCRA Order, March 9, 2016,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0001551-2009
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 23, 2016
Edward Galloway Schwartz, Jr. appeals, pro se, from the order of
March 9, 2016, dismissing his second PCRA1 petition as untimely. We affirm.
On December 22, 2009, appellant entered a negotiated guilty plea to
eight counts of sexual abuse of children -- possession of child pornography,
and one count of criminal use of a communication facility. On May 5, 2010,
the trial court imposed the agreed-upon sentence of 12½ to 25 years’
incarceration, followed by 5 years of probation. The remaining charges were
nolle prossed. The trial court found that appellant was a sexually violent
* Former Justice specially assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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predator (“SVP”) under Megan’s Law. Appellant did not file post-sentence
motions or a direct appeal.
On February 9, 2012, appellant filed a pro se PCRA petition alleging
that trial counsel was ineffective for failing to file a direct appeal, despite his
request. Counsel was appointed and filed a Turner/Finley2 “no merit”
letter, explaining why the petition was untimely. In addition to being
untimely, appellant failed to present any evidence that he requested counsel
to file an appeal or that there were non-frivolous grounds for appeal.
(Turner/Finley letter, 4/17/12 at 3; Docket #33.) On July 5, 2012,
following 20-day notice pursuant to Pa.R.Crim.P. 907, the petition was
dismissed and counsel was permitted to withdraw. No appeal was taken
from that order.
On May 27, 2014, appellant filed a pro se motion for reconsideration
of sentence, which was dismissed as untimely on June 3, 2014. Appellant
filed the instant PCRA petition, his second, on August 31, 2015, alleging that
his sentence was illegal under Alleyne v. United States, U.S. , 133
S.Ct. 2151 (2013) (holding that any fact that, by law, increases the penalty
for a crime is required to be treated as an element of the offense, submitted
to a jury, rather than a judge, and found beyond a reasonable doubt).
Counsel was appointed and filed a petition to withdraw and Turner/Finley
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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“no merit” letter on February 1, 2016. On February 5, 2016, the PCRA court
issued Rule 907 notice, and counsel was permitted to withdraw. On
March 9, 2016, appellant’s petition was dismissed. Appellant filed a timely
pro se notice of appeal on March 28, 2016. On March 29, 2016, appellant
was ordered to file a concise statement of errors complained of on appeal
within 21 days pursuant to Pa.R.A.P. 1925(b). Appellant complied on
April 14, 2016; and on April 18, 2016, the PCRA court filed a Rule 1925(a)
opinion.
This Court’s standard of review regarding an order
denying 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.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super. 2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the
petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. Id.
It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
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Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, 1239-
1240 (Pa.Super. 2004).
Here, appellant’s judgment of sentence became final on June 4, 2010,
when the deadline passed for filing a notice of appeal. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P., Rule 903, 42 Pa.C.S.A. As such, the instant
petition, appellant’s second, is manifestly untimely unless one of the three
statutory exceptions to the PCRA’s one-year jurisdictional time-bar applies.
Appellant asserts that his sentence is illegal under Alleyne and its progeny.
However, “even claims that a sentence was illegal, an issue deemed
incapable of being waived, are not beyond the jurisdictional time
restrictions.” Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa.Super.
2007), citing Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999);
Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004). Therefore,
appellant’s illegal sentencing claim does not operate as an independent
exception to the PCRA’s jurisdictional time-bar.
To the extent that appellant is arguing that the after-recognized
constitutional right exception applies, enumerated at 42 Pa.C.S.A.
§ 9545(b)(1)(iii), he is mistaken. Recently, our supreme court decided that
Alleyne does not apply retroactively to collateral attacks on mandatory
minimum sentences advanced in post-conviction relief proceedings.
Commonwealth v. Washington, A.3d , 2016 WL 3909088 (Pa.
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July 19, 2016). Furthermore, it is well settled that Alleyne does not
invalidate a mandatory minimum sentence when presented in an untimely
PCRA petition. Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).
Appellant also appears to challenge the trial court’s SVP designation.
(Appellant’s brief at 4.) This issue was not raised in his PCRA petition and
cannot be raised for the first time on appeal. See Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (“It is well-settled that issues
not raised in a PCRA petition cannot be considered on appeal.” (quotation
marks and citations omitted)); 42 Pa.C.S.A. § 9544(b). At any rate, the
PCRA does not provide relief from collateral consequences of a criminal
conviction. 42 Pa.C.S.A. § 9542. Because the registration requirements of
Megan’s Law are collateral consequences of appellant’s conviction and are
not considered part of his sentence, appellant’s challenge to his SVP
classification falls outside the ambit of the PCRA. See Commonwealth v.
Masker, 34 A.3d 841 (Pa.Super. 2011) (en banc), appeal denied, 47 A.3d
846 (Pa. 2012) (a challenge to the classification of the defendant as an SVP
is not a challenge to the conviction or sentence and, therefore, is not
cognizable under the PCRA).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2016
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