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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KYLE KRIDER
Appellant No. 72 EDA 2016
Appeal from the PCRA Order Dated December 16, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007239-2009
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 21, 2016
Appellant, Kyle Krider, appeals pro se from the order dismissing as
untimely his third petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
On March 26, 2010, following a jury trial, Appellant was convicted of
burglarizing the home of Jenna Helmuth in Wallingford in the early morning
hours of September 16, 2009.1 On May 20, 2010, Appellant was sentenced
to 10-20 years’ incarceration. On July 28, 2010, the Trial Court denied
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3502(a). Police apprehended Appellant that evening. They
found several of Helmuth’s possessions in his pockets. See PCRA Court
Opinion, 4/15/16, at 1-2.
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Appellant’s motion for reconsideration of sentence. Appellant filed a timely
appeal, and this Court affirmed his judgment of sentence on February 8,
2012. Commonwealth v. Krider, No. 2442 EDA 2010 (Pa. Super. Feb. 8,
2012) (unpublished memorandum).
Appellant has twice before unsuccessfully sought post-conviction relief
in PCRA petitions, most recently in 2014. Appellant filed the instant PCRA
petition, his third, pro se on February 24, 2015, generally to assert
ineffective assistance of counsel with regard to the sentence he received.2
On April 14, 2015, the PCRA court notified Appellant, pursuant to
Pa.R.Crim.P. 907(1), that his PCRA petition would be dismissed on the basis
of untimeliness unless a response was filed within twenty (20) days. Rule
907(1) Notice, 4/14/15. On April 22, 2015, Appellant filed a pro se response
contending that his petition was timely, “because the court retains its
inherent power to correct an illegal sentence.” Appeal for Intent to Dismiss,
at 2. By order entered December 16, 2015, the PCRA court stated, “upon
consideration of [Appellant’s] Motion for Post Conviction Relief, and the court
concluding that it has no jurisdiction over the petition and following the
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2
While Appellant’s PCRA petition is time-stamped March 2, 2015, the
petition itself is dated February 24, 2015. Accordingly, we conclude that,
pursuant to the “prisoner mailbox rule,” Appellant filed his PCRA petition on
February 24, 2015. See Commonwealth v. Wilson, 911 A.2d 942, 944
(Pa. Super. 2006) (recognizing that under the “prisoner mailbox rule” a
document is deemed filed when placed in the hands of prison authorities for
mailing).
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court’s notice of intent to dismiss and the Petitioner’s responses thereto, the
court hereby ORDERS and DECREES that the motion is DENIED.” PCRA
Court Order, 12/16/15 (emphasis in original). In its opinion, the court
reiterated that Appellant’s petition is “patently untimely” and “does not fall
within any of the exceptions to the timeliness requirements under the
PCRA.” PCRA Court Opinion, 4/15/16, at 5-6. The PCRA court concluded,
“Ultimately, the untimeliness of Appellant’s petition precludes any
consideration of his claims by this court.” Id. at 6.
On December 22, 2015, Appellant filed a timely appeal, pro se, with
this Court. Appellant’s pro se brief does not include a Statement of
Questions Involved pursuant to Pa.R.A.P. 2116.3 As questions that are not
identified in a Statement of Questions Involved are waived,
Commonwealth v. Bryant, 57 A.3d 191, 196 n.7 (Pa. Super. 2014), we
could affirm on the basis that Appellant preserved no issues for appellate
review.
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3
The PCRA court did not order a statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Nevertheless, on April 29, 2016,
Appellant filed a Rule 1925(b) Statement in the lower court. That statement
cannot serve as a substitute for the Statement of Questions Involved that is
required under Rule 2116. See Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby”).
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The PCRA court held, however, that it lacked jurisdiction to consider
any issues that Appellant sought to raise4 because Appellant failed to meet
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4
In his petition, Appellant identified the following issues:
ISSUE-(1). DEFENDANT SUBMITS AND MAINTAINS THAT HE
WAS DENIED HIS SIXTH UNITED STATES CONSTITUTIONAL
AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL FOR COUNSEL’S FAILURE IN NOT RAISING AN
OBJECTION TO THE TRIAL COURT’S FOURTEENTH UNITED
STATES CONSTITUTIONAL AMENDMENT RIGHT TO DUE
PROCESS OF LAW FOR THE COURT’S FAILURE IN NOT GIVING
ORAL AND WRITTEN NOTICE TO DEFENDANT THAT COURT
INTENDED TO IMPOSE EXECUTION OF JUDGMENT OF SENTENCE
UNDER (42 PA. C.S.A. § 9714), AND FOR THE TRIAL COURT’S
FAILURE IN NOT CONDUCTING A MANDATORY SENTENCE
HEARING AND FOR FAILURE IN NOT GIVING DEFENDANT THE
RIGHT TO CONTEST THE MANDATORY SENTENCE.
ISSUE-(2). DEFENDANT SUBMITS AND MAINTAINS THAT HE
WAS DENIED HIS SIXTH UNITED STATES CONSTITUTIONAL
AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL FOR COUNSEL’S FAILURE IN NOT RAISING AN
OBJECTION TO THE TRIAL COURT’S UNCONSTITUTIONAL
SENTENCE IN THAT THE MANDATORY MINIMUM AND MAXIMUM
SENTENCE OF 10 TO 20 YEARS, ABSENT PROPER NOTIFICATION
AND LACK OF A HEARING, ALLOWED THE TRIAL JUDGE TO
DETERMINE WHETHER THE EVIDENCE TRIGGERS THE
APPLICATION OF THE MANDATORY MINIMUM AND MAXIMUM
SENTENCE, THEREBY VIOLATING DEFENDANT’S SIXTH
AMENDMENT RIGHTS, AND RIGHT TO A TRIAL BY JURY
PURSUANT TO ARTICLE I, SECTION IX, OF THE PENNSYLVANIA
CONSTITUTION WHICH GUARANTEE DEFENDANT TO TRIAL BY
JURY AND A DETERMINATION OF GUILT BEYOND A REASONABLE
DOUBT IN VIOLATION OF DEFENDANT’S FOURTEENTH UNITED
STATES CONSTITUTIONAL AMENDMENT RIGHT TO DUE
PROCESS OF LAW.
PCRA Petition, 2/24/15, at 4(A).
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the jurisdictional deadlines in the PCRA. That holding by the PCRA court was
correct, and we affirm on that basis.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is “to determine 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, 191-192 (Pa. Super. 2013) (citations omitted).
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
exceptions to the time limitations for filing the petition set forth in Section
9545(b)(1) of the statute. See 42 Pa.C.S. § 9545(b).5 A PCRA petition
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5
The three 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.
(Footnote Continued Next Page)
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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
651-652; see 42 Pa.C.S. § 9545(b)(2). Asserted exceptions to the time
restrictions for the PCRA must be included in the petition and may not be
raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007).
Here, Appellant’s judgment of sentence became final on March 9,
2012, when the 30-day time period for filing an allocatur petition with our
Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3). As Appellant filed
the PCRA petition at issue here on February 24, 2015 — more than two
years after his judgment of sentence became final — it is patently untimely
unless he has satisfied his burden of pleading and proving that one of the
enumerated exceptions applies. See Hernandez, 79 A.3d at 651-652.
In his PCRA petition, Appellant acknowledged the statutory time bar
and conceded that his petition was untimely if no exception applies. PCRA
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(Footnote Continued)
(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.
42 Pa.C.S. § 9545(b)(1).
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Petition, 2/24/15, at 3. However, Appellant averred that he fell within the
exception to the time bar under 42 Pa.C.S. § 9545(b)(1)(ii), which provides
that a petitioner may seek relief when 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.” PCRA Petition, 2/24/15, at 3.
When Appellant sought to articulate the “facts” that were “previously
unknown to [him],” however, he stated only that he “submits and maintains
his illegal sentence is non-waivable and can be raised at any time where
[Appellant] was denied Due Process of Law in the imposition of his
Mandatory minimum and maximum sentence under 42 Pa. C.S.A. § 9714.”
PCRA Petition, 2/24/15, at 3. His petition thus failed to allege any newly-
discovered facts.
The PCRA court recognized that Appellant’s petition cited a number of
cases that Appellant appeared to be trying to use to invoke the PCRA’s third
exception, for “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.” See PCRA Court Opinion at 5-6.6 Appellant repeats many of
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6
The PCRA court incorrectly identified this exception as falling under Section
9545(b)(1)(ii) of the PCRA, but the correct provision is 9545(b)(1)(iii). The
Supreme Court of Pennsylvania has held that any claim to a timeliness
exception based on new case law must meet the requirements of paragraph
(Footnote Continued Next Page)
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those citations in his brief to this Court. Nevertheless, a petition claiming
application of the “new constitutional right” exception (and the other two
exceptions as well) must be filed “within 60 days of the date the claims
could have been presented,” 42 Pa.C.S. § 9545(b)(2), and most of the court
decisions on which Appellant relies were filed well more than 60 days before
Appellant filed his petition.7
As the PCRA court observed, Appellant’s main argument appears to be
that he received a mandatory minimum sentence that should be held invalid
under Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that a
mandatory minimum sentence is unconstitutional unless all facts that
increase the sentence are proven to a jury beyond a reasonable doubt. In
this Court, Appellant bolsters that argument by citing Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015), which examined the impact of Alleyne
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(Footnote Continued)
(iii) of this section of the PCRA, not paragraph (ii). See Commonwealth v.
Watts, 23 A.3d 980, 987 (Pa. 2011) (“subsequent decisional law does not
amount to a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA”).
7
In his brief, Appellant cites the following U.S. and Pennsylvania Supreme
Court decisions: Alleyne v. United States, 133 S. Ct. 2151 (2013);
Commonwealth v. Fields, 107 A.3d 738 (Pa. 2014); Commonwealth v.
Vasquez, 744 A.2d 1280 (Pa. 2000); and Commonwealth v. Butler, 760
A.2d 384 (Pa. 2000). None of these cases was decided within 60 days prior
to when Appellant filed his February 24, 2015 petition. Appellant also cites
in his brief to Commonwealth v. Akbar, 111 A.3d 168 (Pa. 2015), and
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), each of which was
decided after Appellant filed his petition. Appellant raises no claim under
Akbar, which is not a decision recognizing a new constitutional right.
Appellant’s reliance on Hopkins fails for the reasons discussed in the text.
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on Pennsylvania’s mandatory sentencing statutes. But even if we assume
that Appellant’s claim under Hopkins would not be barred by Section
9545(b)(2)’s 60-day requirement, as Hopkins was decided after Appellant
filed his petition (although Appellant did not seek to amend his petition to
invoke Hopkins), Appellant’s citation to Hopkins still cannot cure
Appellant’s jurisdictional defect. This is because Alleyne and Hopkins have
not been held to apply retroactively to cases on collateral review. See
Commonwealth v. Washington, 142 A.3d 810, 818–819 (Pa. July 19,
2016). Therefore, these cases do not qualify as decisions recognizing the
type of new constitutional right that gives rise to an exception to the
jurisdictional time requirements in the PCRA. See 42 Pa.C.S.
§ 9545(b)(1)(iii) (new constitutional right must have been “held by [the U.S.
Supreme Court or the Supreme Court of Pennsylvania] to apply
retroactively”).8
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8
In addition, as the trial court noted, PCRA Court Opinion at 1-2, 6,
Appellant was sentenced to a mandatory minimum sentence of ten years
because it was his second conviction for burglary, which the Sentencing
Code lists as a crime of violence. See 42 Pa.C.S. § 9714(a); see also id. §
9714(g) (defining “crime of violence” to include burglary). The courts of the
Commonwealth have taken the position that Alleyne does not require that a
prior conviction be proven before a jury to support a mandatory minimum
sentence. See Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.
2013) (en banc) (“[t]he Alleyne decision, therefore, renders those
Pennsylvania mandatory minimum sentencing statutes that do not pertain
to prior convictions constitutionally infirm insofar as they permit a judge
to automatically increase a defendant's sentence based on a preponderance
(Footnote Continued Next Page)
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Based on the foregoing, the PCRA court correctly concluded that it
lacked jurisdiction to consider Appellant’s untimely PCRA petition. We
therefore affirm the PCRA court’s order denying Appellant post-conviction
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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(Footnote Continued)
of the evidence standard” (emphasis added)); see also Apprendi v. N.J.,
530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt” (emphasis added)); Commonwealth v. Aponte, 855
A.2d 800, 804 (Pa. 2004).
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