J-S96033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHINELLO ANDRE BLASKI
Appellant No. 900 WDA 2016
Appeal from the PCRA Order Dated May 19, 2016
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000006-2003
CP-43-CR-0000895-2003
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 9, 2017
Appellant, Chinello Andre Blaski, appeals from the order dismissing his
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
In its opinion, entered August 1, 2016, the PCRA court fully and
correctly set forth the relevant facts and procedural history of this case, as
follows:
At [Docket] No. [CP-43-CR-0000006-2003], [Appellant] pled
guilty on September 8, 2003, to Former Convict Not to Possess a
Firearm, a felony of the second degree. The charge arose out of
a search of [Appellant’s] residence in connection with a shooting
on September 24, 2002, that [Appellant] was involved in. The
gun found during the search was not the same gun used in the
shooting.
At [Docket] No. [CP-43-CR-0000895-2003], [Appellant] pled
guilty on October 15, 2003, to Aggravated Assault, a felony of
the second degree, and Criminal Trespass, a felony of the second
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degree. The charges arose out of an incident on September 25,
2002, where [Appellant] broke into a person’s home and shot
the homeowner after the owner discovered him. [Appellant], at
the time, was an inmate in the Community Corrections Center,
serving a sentence imposed for the crimes of Burglary and
Robbery.
[Appellant] was sentenced on November 5, 2003. At [Docket]
No. 6[-]2003, [Appellant] received a sentence of imprisonment
of not less than 27 months nor more than 120 months
consecutive to any existing sentence. The sentence is in the
aggravated range of the Sentencing Guidelines.1 At [Docket]
No. 895[-]2003, [Appellant] was sentenced to a term of
imprisonment of not less than 5 years nor more than 10 years,
consecutive to the sentence at [Docket] No. 6[-]2003. The
sentence is above the Sentencing Guidelines.2 [Appellant] was
sentenced to a term of imprisonment of not less than 1 year nor
more than 5 years on the charge of Criminal Trespass,
consecutive to the sentence for Aggravated Assault. The
sentence is in the standard range of the Sentencing Guidelines.3
1
The offense gravity score is 7 and the prior record
score is 3. The standard range is 15 to 21 months,
with the mitigated and aggravated ranges being plus
or minus 6 months.
2
The offense gravity score is 8 and the prior record
score is 3. The standard range is 18 to 24 months,
with the mitigated range and aggravated ranges
being plus or minus 9 months.
3
The offense gravity score is 4 and the prior record
score is 3. The standard range is 3 to 14 months.
None of the sentences involved a mandatory sentence.
A timely post-sentence motion was filed challenging the
sentence on the grounds it was manifestly excessive. It was
denied without a hearing on November 7, 2003.
In the appeal from the denial of the post-sentence motion at No.
2113 WDA 2003 on July 28, 2004, a panel of [t]he Superior
Court affirmed the judgment of sentence in a Memorandum
Opinion.
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On March [22], 2016, [Appellant] filed a pro se PCRA Petition.
. . . Counsel was appointed to represent the defendant.
A conference was held on April 25, 2016. Counsel indicated the
petition would not be amended.
That same date, this Court filed a Notice of Intention to Dismiss.
On May 19, 2016, an Order was entered denying the petition
without a hearing. This appeal followed.
PCRA Ct. Op., 8/1/16, at 1-3.
Appellant’s sole issue, as stated in his brief, is as follows:
Whether the Trial Court erred in denying the Appellant’s PCRA
petition alleging that the sentences he received were unlawful?
Appellant’s Brief at 4. However, we do not reach this issue, because
Appellant’s PCRA petition was filed beyond the time limits set forth in the
PCRA and, therefore, the PCRA court lacked jurisdiction to consider the
petition.
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, 191-92 (Pa. Super. 2013) (citations and internal quotation marks
omitted).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
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Generally, a petition for relief under the PCRA must be filed within one year
of the date the judgment of sentence 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) of the statute. See 42 Pa.C.S.
§ 9545(b).1 A judgment is deemed 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 at the expiration of time for seeking
review.” Id. § 9545(b)(3). A PCRA petition invoking one of the statutory
exceptions must “be filed within 60 days of the date the claims could have
been presented.” Hernandez, 79 A.3d at 651-52; see also 42 Pa.C.S. §
9545(b)(2).
____________________________________________
1
The three 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
(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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Here, Appellant’s judgment of sentence became final on August 27,
2004, when the 30 days for filing a petition for allowance of appeal to the
Supreme Court of Pennsylvania expired. See Pa.R.A.P. 1113;
Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008). Thus,
generally, Appellant would have had to file a PCRA petition by August 29,
2005.2 This petition, filed on March 22, 2016, more than a decade after
Appellant’s judgment of sentence became final, was therefore patently
untimely unless Appellant pleaded and proved one of the three statutory
exceptions to the PCRA’s jurisdictional time-bar within “60 days of the date
the claim could have been presented.” Hernandez, 79 A.3d at 651-52; see
also 42 Pa.C.S. § 9545(b)(2).
In the PCRA court, Appellant attempted to avoid the time-bar by
asserting the “new constitutional right” exception under Section
9545(b)(1)(iii). See PCRA Pet., 3/22/16, at 2; Pet’r’s Br. in Supp. of
P.C.R.A. Pet., 3/22/16, at 2.3 Specifically, Appellant claimed that: “The
United States Supreme Court has recently made a definitive determination
that the Unconstitutionality of Mandatory and/or enhanced sentences
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2
While one year after the expiration of Appellant’s period to file a petition
for allowance of appeal to the Supreme Court of Pennsylvania expired
August 27, 2004, that day was a Saturday; therefore, Appellant had until
the end of the next business day thereafter, August 29, 2005, to file his
petition. 1 Pa.C.S. § 1908.
3
Appellant makes no timeliness argument in his brief to this Court.
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must be given retroactive effect on State Collateral review.” PCRA Pet.,
3/22/16, at 3 (emphasis in original) (citing Alleyne v. United States, 133
S.Ct. 2151 (2013) (mandatory minimum sentence is unconstitutional unless
all facts that increase the sentence are proven to a jury beyond a reasonable
doubt); and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (requiring
retroactive application of holding in Miller v. Alabama, 132 S. Ct. 2455,
2460 (2012), “that mandatory life without parole for those under the age of
18 at the time of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments’”)).
However, Appellant’s claim fails for three reasons. First, Alleyne was
decided on June 17, 2013, and Appellant did not file his current PCRA
petition until March 22, 2016 — more than two years later. Appellant
therefore failed to meet the requirement that he file his PCRA petition
“within 60 days of the date the claims could have been presented.” 42
Pa.C.S. § 9545(b)(2). Second, Alleyne does not apply retroactively to
cases such as Appellant’s, where the judgment of sentence became final
prior to the Alleyne decision. Commonwealth v. Washington, 142 A.3d
810, 820 (Pa. 2016) (“Alleyne does not apply retroactively to cases pending
on collateral review”). And third, even if Appellant had met the 60-day
requirement and even if Alleyne applied retroactively here, Appellant would
not qualify for an Alleyne challenge, because Appellant did not receive any
mandatory minimum sentences.
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The only United States Supreme Court decision upon which Appellant
relies that was decided less than 60 days prior to the filing of Appellant’s
current PCRA petition4 is Montgomery, 136 S. Ct. 718 (Jan. 25, 2016), as
revised, Jan. 27, 2016. Appellant argues that Montgomery held that all
rulings of a substantive nature must be given retroactive effect on collateral
review in all state cases. Appellant’s Brief at 8. Appellant continues that,
since the rulings in Alleyne are of a substantive nature, then Alleyne must
be given retroactive effect on collateral review. Id. This argument has
already been rejected by our Supreme Court. See Washington, 142 A.3d
at 813-15, 818, 820. Having discerned no abuse of discretion or error of law,
we affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2017
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4
Sixty days prior to the filing of Appellant’s PCRA petition was January 22,
2016.
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Com. v. Blaski, C.
Combined Opinion