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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM HOPKINS,
Appellant No. 1611 WDA 2015
Appeal from the PCRA Order September 17, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002705-2010
BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 7, 2016
Appellant, William Hopkins, appeals from the September 17, 2015
order denying his first petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
We previously summarized the facts of Appellant’s crimes and the
initial procedural history as follows:
At approximately 9:15 p.m. on December 23, 2009,
Detective Jason Moss, a trained narcotics detective
with the City of Pittsburgh Police Department,
observed an individual pacing around a grocery store
parking lot and making calls on a cellular phone.
Detective Moss recognized that man from a previous
encounter a month earlier as a drug user. Detective
Moss testified that, after making calls, the man
walked to the side of a building and began counting
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*
Retired Senior Judge assigned to the Superior Court.
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his money. Detective Moss then observed a car pull
up on a side street near the man and park against
traffic under a “No Parking” sign. The Detective
contacted his partners, who approached the vehicle.
Upon observing the police approaching, the known
drug user turned away from the car, fled the scene
and escaped apprehension.
Detective Charles Higgins, one of Detective
Moss’s partners that evening, testified that as he
approached the car, he observed a juvenile later
identified as T.H. throw an open brick of heroin to
the car floor with his right hand. Detective Edward
Fallert also observed T.H. throw a brick of heroin
onto the floor of the vehicle. T.H. was arrested and
the heroin was seized. As he approached the car,
Detective Higgins also observed a loaded Smith &
Wesson 0.38 caliber firearm between T.H.’s seat and
the center console.
Detective Mark Goob approached the driver’s
side of the vehicle and observed Appellant, the
driver, start to reach down between the console and
the driver’s seat and push his hand down into that
area. Detective Goob ordered Appellant out of the
vehicle. In the vehicle, between the driver’s seat
and the center armrest, Detective Goob recovered
two additional bricks of heroin. Counsel for
Appellant stipulated that whoever possessed the
heroin in the car did so with intent to distribute it,
and not for personal use. Detective Fallert recovered
$361.00 in cash and two cellular phones from
Appellant pursuant to a search incident to arrest.
Trial court opinion, 4/2/12 at 3–4. A total of 150 stamp bags of
heroin were found inside the vehicle; 50 were in the brick thrown
by T.H. onto the floor on the passenger side of the vehicle and
100 were in the two bricks located between the driver’s seat and
the center console.
Appellant was charged with one count each of person not
to possess a firearm, 18 Pa.C.S.A. § 6105(a)(1), carrying a
firearm without a license, 18 Pa.C.S.A. § 6106(a)(1), PWID
(heroin), 35 P.S. § 780–113(a)(30), and possession of a
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controlled substance (heroin), 35 P.S. § 780–113(a)(16).
Appellant was also charged with one summary traffic count of
prohibitions in specified places, 75 Pa.C.S.A. § 3353.
Subsequently, the trial court granted [A]ppellant’s motion to
sever the charge of person not to possess a firearm. On May 11,
2011, a jury trial was held; [A]ppellant failed to return to the
courthouse after jury selection and, as a result, was tried in
absentia. Appellant was found guilty of all counts, and the
Honorable Jill E. Rangos found [A]ppellant guilty of the summary
traffic count.
On October 17, 2011, a sentencing hearing was held in
absentia. The Commonwealth had provided notice of its
intention to seek the two separate mandatory minimum
sentences applicable to the PWID count. Specifically, the two-
year mandatory minimum sentencing enhancement pursuant to
18 Pa.C.S.A. § 7508(a)(7)(i) by virtue of the heroin weighing
more than one gram, and the five-year mandatory minimum
sentence pursuant to 42 Pa.C.S.A. § 9712.1 because a gun was
in close proximity to the drugs [were applied]. Appellant was
sentenced to 40 to 80 months’ imprisonment for carrying a
firearm without a license and a consecutive 7 to 15–year term
for PWID; no further penalties were imposed on the remaining
counts. Thereafter, on October 24, 2011, [A]ppellant was
resentenced to the same sentence but provided credit for 8 days
of time served.
Notice of appeal was filed on November 22, 2011.
Appellant complied with the trial court’s order to file a concise
statement of errors complained of on appeal within 21 days
pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial
court has filed an opinion.
Commonwealth v. Hopkins, 67 A.3d 817, 818–820 (Pa. Super. 2013).
We affirmed Appellant’s judgment of sentence, holding that the
evidence was sufficient to support his constructive possession of the heroin
and firearm found in the vehicle and that Appellant’s mandatory sentence
was proper. Id. Our Supreme Court denied Appellant’s petition for
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allowance of appeal on October 29, 2013. Commonwealth v. Hopkins, 78
A.3d 1090 (Pa. 2013).
Appellant, pro se, filed the instant PCRA petition on June 2, 2015. The
PCRA court appointed counsel, who filed an amended petition on July 20,
2015. On August 18, 2015, the PCRA court entered notice of its intent to
dismiss the petition as untimely pursuant to Pa.R.Crim.P. 907. On
September 17, 2015, relief was denied. Appellant filed a timely appeal to
this Court, and both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
Appellant raises the following issues on appeal:
I. The sentence violates the United States constitution
because it exceeds the lawful maximum.
II. The PCRA Petition was timely filed within 60 days of
Hopkins discovering that Alleyne applied to his case.
Appellant’s Brief at 5.
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the record
supports the determination of the PCRA court and whether the ruling is free
of legal error.” Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super.
2013) (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)).
We grant great deference to the PCRA court’s findings that are supported in
the record and will not disturb them unless they have no support in the
certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.
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2014). “There is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that no
genuine issues of material fact exist, then a hearing is not necessary.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting
Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a
decision is within the discretion of the PCRA court and will not be overturned
absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015).
The timeliness of a PCRA petition is a jurisdictional threshold that may
not be disregarded in order to reach the merits of the claims raised in a
PCRA petition that is untimely. Commonwealth v. Cintora, 69 A.3d 759,
762 (Pa. Super. 2013). “We have repeatedly stated it is the [petitioner’s]
burden to allege and prove that one of the timeliness exceptions applies.
See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
Whether [a petitioner] has carried his burden is a threshold inquiry prior to
considering the merits of any claim.” Commonwealth v. Edmiston, 65
A.3d 339, 346 (Pa. 2013).
In order to be considered timely, a first, or any subsequent PCRA
petition, must be filed within one year of the date the petitioner’s judgment
of sentence 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
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Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3). As noted supra, our Supreme Court
denied Appellant’s petition for allowance of appeal on October 29, 2013.
Thus, Appellant’s judgment of sentence became final on January 27, 2014,
when the time for seeking certiorari from the United States Supreme Court
expired. Id.1 Therefore, Appellant had until January 27, 2015, to file a
timely petition. Appellant’s PCRA petition, filed June 2, 2015, was untimely
filed.
Nevertheless, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.2 “That burden necessarily entails an acknowledgment by
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1
Appellant had ninety days from the date of the Pennsylvania Supreme
Court’s denial of his petition for allowance of appeal to file a petition for a
writ of certiorari with the United States Supreme Court. Commonwealth v.
Hackett, 956 A.2d 978, 980 n.4 (Pa. 2008); United States Supreme Court
Rule 13.
2
The exceptions to the timeliness requirement 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
(Footnote Continued Next Page)
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the petitioner that the PCRA petition under review is untimely but that one
or more of the exceptions apply.” Beasley, 741 A.2d at 1261. “However,
the PCRA limits the reach of the exceptions by providing that a petition
invoking any of the exceptions must be filed within 60 days of the date the
claim first could have been presented.” Commonwealth v. Walters, 135
A.3d 589, 592 (Pa. Super. 2016) (citing Commonwealth v. Leggett, 16
A.3d 1144, 1146 (Pa. Super. 2011), and 42 Pa.C.S. § 9545(b)(2)). In order
to be entitled to the exceptions to the PCRA’s one-year filing deadline, “the
petitioner must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame” under section 9545(b)(2).
Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).
Appellant admits that his petition was untimely filed, Appellant’s Brief
at 19, but he claims applicability of the “new constitutional right” exception
to the PCRA time-bar based on Alleyne v. United States, 133 S.Ct. 2151
(2013). Id.
In Alleyne, the Supreme Court held that the constitutional jury
trial right requires any fact, other than a prior conviction, that
triggers a mandatory minimum sentence to be proven beyond a
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(Footnote Continued)
(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)(i), (ii), and (iii).
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reasonable doubt before the finder of fact. Alleyne is an
application of the Court’s prior pronouncement in Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), which ruled that any fact that increases a maximum
sentence must be found by the factfinder beyond a reasonable
doubt or admitted by the defendant during his guilty plea. In
Alleyne, the United States Supreme Court expressly overruled
Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
L.Ed.2d 524 (2002), which held that a fact that involves a
mandatory minimum sentence does not implicate jury trial
rights. Alleyne also implicitly abrogated McMillan v.
Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67
(1986), which withstood an Apprendi attack in the Harris
decision.
In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (relying upon Commonwealth v. Watley, 81 A.3d 108,
118 (Pa. Super. 2013) (en banc)), we noted that Alleyne will be
applied to cases pending on direct appeal when Alleyne was
issued.
Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)
(emphasis added).
Appellant also suggests that he filed his petition within sixty days of
discovering the applicability of Alleyne and Commonwealth v. Newman,
99 A.3d 86 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.
2015) (concluding that 42 Pa.C.S. § 9712.1, regarding the distance between
drugs and guns, is unconstitutional in light of Alleyne, as its subsections are
not severable). This allegation lacks merit. Appellant must establish that
the exception was raised within sixty days of the date the claim could have
been first presented. 42 Pa.C.S. § 9545(b)(2). Alleyne was decided two
years before Appellant filed his petition and Newman was filed ten months
before Appellant’s pro se petition. See Leggett, 16 A.3d at 1146 (stating
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that “[w]ith regard to an after-recognized constitutional right, . . . the sixty-
day period begins to run upon the date of the underlying judicial decision.”).
While this Court has held that Alleyne applies to cases that were on
direct appeal when Alleyne was issued, we have declined to construe that
decision as applying retroactively to cases in which the judgment of
sentence has become final.
In concluding Alleyne does not satisfy the new retroactive
constitutional right exception to the PCRA’s one year time bar,
42 Pa.C.S. § 9545(b)(1)(iii), the Commonwealth v. Miller, 102
A.3d 988, 995 (Pa. Super. 2014) Court explained:
Even assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor
the United States Supreme Court has held that
Alleyne is to be applied retroactively to cases in
which the judgment of sentence had become
final. This is fatal to Appellant’s argument regarding
the PCRA time-bar. This Court has recognized that a
new rule of constitutional law is applied retroactively
to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.
Id. at 995 (citations omitted) (emphasis supplied).
Commonwealth v. Ruiz, 131 A.3d. 54, 58 (Pa. Super. 2015) (emphasis in
original). Indeed, our Supreme Court recently held that “Alleyne does not
apply retroactively to cases pending on collateral review.” Commonwealth
v. Washington, 142 A.3d 810, 820 (Pa. 2016).
In conclusion, because Appellant’s PCRA petition was untimely and no
exceptions apply, the PCRA court correctly determined that it lacked
jurisdiction to address the claim presented and grant relief. See
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Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we
lack the authority to address the merits of any substantive claims raised in
the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency
to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2016
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