J. S62027/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
JUSTIN BRENNER, :
:
Appellant : No. 95 MDA 2016
Appeal from the PCRA Order December 10, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0000656-2011
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 26, 2016
Appellant, Justin Brenner, appeals pro se from the Order entered in
the Lebanon County Court of Common Pleas dismissing his second Petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546, as untimely. After careful review, we affirm on the basis that
Appellant’s PCRA Petition is untimely and that this Court lacks jurisdiction to
review the Petition.
On April 20, 2012, Appellant entered an open guilty plea to one count
each of Involuntary Deviate Sexual Intercourse with a Child, Attempted
Involuntary Deviate Sexual Intercourse with a Child; Indecent Assault of a
J. S62027/16
Person Less Than 13 Years of Age, and Corruption of Minors.1 On
September 13, 2012, the trial court imposed an aggregate term of 10 to 20
years’ incarceration. Appellant did not file a direct appeal. His Judgment of
Sentence, therefore, became final on October 15, 2012.2 See 42 Pa.C.S. §
9545(b)(3).
Appellant filed his first PCRA Petition on September 16, 2013. On
January 15, 2014, the PCRA court denied Appellant’s first PCRA Petition
following a hearing. Appellant did not file a direct appeal.
Appellant filed the instant pro se PCRA Petition, his second, on
September 24, 2015, claiming his sentence is illegal. On October 19, 2015,
the Commonwealth filed a response. On November 5, 2015, the PCRA court
issued a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to dismiss
his Petition, noting that it lacked jurisdiction to consider Appellant’s
underlying claim because the Petition was not timely filed, and Appellant had
failed to plead and prove a timeliness exception. Appellant filed a pro se
Response on November 27, 2015.
1
18 Pa.C.S. § 3123(b); 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 3126(a)(7); 18
Pa.C.S. § 6301(a)(1), respectively.
2
October 13, 2012, was a Saturday. See 1 Pa.C.S. § 1908.
-2-
J. S62027/16
On December 10, 2015, the PCRA court dismissed Appellant’s Petition
without a hearing. Appellant filed a pro se Notice of Appeal on January 11,
2016.3 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents three issues for our review:
I. Did the P.C.R.A. Court err in denying the Post Conviction Relief
Act Petition without a hearing by misapprehending the
retrospective application in Commonwealth v. Hopkins, 117 A.3d
247 (2015) when it’s [sic] paradigm, Alleyne v. United States,
133 S.Ct. 2151 (2013) created a “substantive rule,” which “the
Constitution requires State Collateral Review Courts to give
retroactive effect to that rule?”
II. Did the P.C.R.A. Court err in denying the Post Conviction
Relief Act Petition without a hearing when [Appellant] filed the
instant Post Conviction Relief Act Petition timely by filing within
sixty (60) days of learning of the Supreme Court of
Pennsylvania’s decision in Commonwealth v. Hopkins, 117 A.3d
247 (2015)?
III. Did the P.C.R.A. Court err in denying the Post Conviction
Relief Act Petition without a hearing when [Appellant] contends
that through the Court’s inherent power, the P.C.R.A. Court
always retains jurisdiction to correct his patently
unconstitutional, and therefore illegal sentence?
Appellant’s Brief at 4.
3
Appellant avers that he delivered his Notice of Appeal to prison officials on
January 11, 2016, which would be timely. Although Appellant has not
submitted a cash slip, postmark, or other written verification, we note that
Appellant’s Notice of Appeal was received and docketed by the lower court
on January 14, 2016, which indicates that he did, in fact, deliver the Notice
of Appeal to prison officials several days earlier. Accordingly, we conclude
that Appellant’s Notice of Appeal was timely filed under the Prisoner Mailbox
Rule. See Pa.R.A.P. 121(a); Commonwealth v. Patterson, 931 A.2d 710,
714 (Pa. Super. 2007) (noting that even without a postmark definitively
noting the date of mailing, quashal may be avoided where the date of
receipt indicates that appellant likely placed the notice of appeal in the
hands of prison officials before the expiration of 30 days).
-3-
J. S62027/16
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). There is no right to a PCRA hearing; a hearing is unnecessary where
the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008).
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA Petition is a jurisdictional
requisite).
Under the PCRA, any Petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
The PCRA’s timeliness requirements are jurisdictional in nature, and a court
may not address the merits of the issues raised if the PCRA petition was not
timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010).
-4-
J. S62027/16
Here, Appellant’s Judgment of Sentence became final on October 15,
2012, upon expiration of the time to file a Notice of Appeal with the
Pennsylvania Superior Court. See 42 Pa.C.S. § 9545(b)(3). In order to be
timely, Appellant needed to submit his PCRA Petition by October 15, 2013.
Id. Appellant filed this PCRA Petition on September 24, 2015, well after the
one-year deadline. The PCRA court properly concluded that Appellant’s
Petition is facially untimely. PCRA Court Opinion, filed 12/10/15, at 4-5.
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b), which provides the following:
(b) Time for filing petition.
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
-5-
J. S62027/16
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have
been presented.
42 Pa.C.S. § 9545(b)(1)-(2). See, e.g., Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the
claim had been timely raised within 60-day timeframe).
Appellant attempts to invoke the timeliness exception under Section
9545(b)(1)(iii) in his challenge to the legality of his sentence, relying on
Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). As
long as this Court has jurisdiction over the matter, a legality of sentencing
issue is reviewable and cannot be waived. Commonwealth v. Jones, 932
A.2d 179, 182 (Pa. Super. 2007). However, a legality of sentencing issue
must be raised in a timely filed PCRA Petition. See 42 Pa.C.S. § 9545(b)(1);
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality
of sentence is always subject to review within the PCRA, claims must still
first satisfy the PCRA’s time limits or one of the exceptions thereto.”).
Appellant must present an illegal sentencing claim in a timely PCRA Petition
over which we have jurisdiction. See Fahy, supra at 223;
Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015);
Commonwealth v. Miller, 102 A.3d 988, 995-96 (Pa. Super. 2014)
(explaining that the decision in Alleyne does not invalidate a mandatory
minimum sentence when presented in an untimely PCRA Petition).
-6-
J. S62027/16
The United States Supreme Court decided Alleyne on June 17, 2013.
In order to invoke the “constitutional right” exception under 42 Pa.C.S. §
9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days
of June 17, 2013. See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.
Super. 2007) (stating that the 60-day period “begins to run upon the date of
the underlying judicial decision.”). Appellant filed this PCRA Petition on
September 24, 2015, well after 60 days of the Alleyne decision.
Because Appellant’s Judgment of Sentence was final when Alleyne
was decided and because he filed an untimely PCRA Petition, the instant
case is indistinguishable from Miller. Accordingly, the PCRA court properly
concluded that Appellant had failed to plead and prove any of the timeliness
exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly dismissed
Appellant’s Petition as untimely. PCRA Court Opinion, filed 12/10/15, at 4-5.
Moreover, our Supreme Court has recently reiterated that Alleyne
does not apply retroactively on post-conviction collateral review. See
Commonwealth v. Washington, ___ A.3d ___, 2016 WL 3909088 at *8,
No. 37 EAP 2015 (Pa. filed July 19, 2016).
In sum, Appellant’s PCRA Petition was facially untimely and he did not
plead and prove the applicability of any of the three statutory timeliness
exceptions. Accordingly, the PCRA court properly dismissed Appellant’s
PCRA Petition. We, thus, affirm the denial of PCRA relief.
Order affirmed.
-7-
J. S62027/16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2016
-8-
Com. v. Brenner, J.
Combined Opinion