J-S05035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW D. WATKINS, III,
Appellant No. 740 MDA 2016
Appeal from the PCRA Order February 5, 2016
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0001965-2005
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 01, 2017
Appellant, Matthew D. Watkins, III, appeals pro se from the order
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
A previous panel of this Court set forth the factual and procedural
history of this case as follows.
. . . [F]ollowing a jury trial on January 19, 2007, [Appellant] was
convicted of one count each of Robbery, Criminal Conspiracy to
commit Robbery, Theft by Unlawful Taking or Disposition,
Receiving Stolen Property, Possessing Instruments of Crime, and
Simple Assault,[1] stemming from the robbery of [his] place of
employment, the Billtown Cab Company. On February 6, 2007,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3921(a), 3925(a), 907(b), and
2701(a)(3), respectively.
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the trial court sentenced [Appellant] to an aggregate term of 12
to 32 years [of] imprisonment, to be followed by 8 years [of]
probation.[2] Although [Appellant] initially pursued a direct
appeal with this Court, on December 17, 2007, [he]
subsequently filed a Praecipe to Withdraw his direct appeal,
which this Court granted by order dated December [19], 2007.
On January 8, 2008, [Appellant] filed his first [counseled]
PCRA petition raising, inter alia, claims of ineffective assistance
of counsel. Thereafter, [Appellant] filed amended PCRA petitions
on April 3, 2008, and May 9, 2008, respectively. Following an
evidentiary hearing, the PCRA court denied [Appellant’s] PCRA
petition by order dated December 31, 2008. . . .
(Commonwealth v. Watkins, No. 105 MDA 2009, unpublished
memorandum at *1-2 (Pa. Super. filed Jan. 22, 2010)) (footnotes omitted).
This Court affirmed the court’s denial of Appellant’s PCRA petition on January
22, 2010. (See id. at *1). Our Supreme Court denied Appellant’s petition
for allowance of appeal on July 26, 2010. (See Commonwealth v.
Watkins, 999 A.2d 1246 (Pa. 2010)).
Appellant filed the instant pro se PCRA petition on November 30,
2015,3 claiming that the mandatory minimum sentence imposed on him
____________________________________________
2
Relevant to this appeal, prior to sentencing, the Commonwealth gave
notice of its intention to seek at least the mandatory minimum term of
incarceration under 42 Pa.C.S.A. § 9712 (providing mandatory minimum
sentence of five years for persons who visibly possess firearm during
commission of crime of violence, including robbery). (See N.T. Trial,
1/19/07, at 55-56). The trial court sentenced Appellant to a minimum term
of six years’ incarceration on the robbery count. (See Sentencing Order,
2/06/07).
3
We deem Appellant’s pro se PCRA petition and his notice of appeal
(referenced infra) filed on the day they were dated rather than on the day
(Footnote Continued Next Page)
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pursuant to 42 Pa.C.S.A. § 9712 is unconstitutional under Alleyne v.
United States, 133 S.Ct. 2151 (2013), and Commonwealth v. Hopkins,
117 A.3d 247 (Pa. 2015).4 On January 8, 2016, the court issued an opinion
and notice of its intent to dismiss the PCRA petition without a hearing as
untimely. See Pa.R.Crim.P. 907(1). Appellant did not respond. On
February 5, 2016, the court entered its order dismissing Appellant’s PCRA
petition. This timely appeal followed.5
Appellant raises the following issues for our review:
I. Did the [PCRA] [c]ourt err in denying the [PCRA] [p]etition
without a hearing by misapprehending the retrospective
application in Commonwealth v. Hopkins, 117 A.3d 247 ([Pa.]
2015) when its 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 [PCRA] [c]ourt err in denying the [PCRA] [p]etition
when [Appellant] filed the instant [PCRA] [p]etition timely by
_______________________
(Footnote Continued)
they were docketed, pursuant to the prisoner mailbox rule. See
Commonwealth v. Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012).
4
In Alleyne, the United States Supreme Court held that under the Sixth
Amendment to the United States Constitution, a jury must find beyond a
reasonable doubt any facts that increase a mandatory minimum sentence.
See Alleyne, supra at 2158. In Hopkins, the Pennsylvania Supreme Court
held that 18 Pa.C.S.A. § 6317(a)—which imposes a mandatory minimum
sentence of two years’ incarceration on certain drug offenses—is
unconstitutional in light of Alleyne. See Hopkins, supra at 249, 262.
5
Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on April 7, 2016. See Pa.R.A.P.
1925(b). The court entered an opinion on May 25, 2016, in which it relied
on its opinion filed on January 8, 2016. See Pa.R.A.P. 1925(a).
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filing within sixty (60) days of learning of the Supreme Court of
Pennsylvania’s decision in Commonwealth v. Hopkins, 117
A.3d 247 ([Pa.] 2015)?
III. Did the [PCRA] [c]ourt err in denying the [PCRA] [p]etition
without a hearing when [Appellant] contends that through the
[c]ourt’s inherent power, the [PCRA] [c]ourt always retains
jurisdiction to correct [its] patently unconstitutional, and
therefore illegal sentence?
(Appellant’s Brief, at 4).
As an initial matter, we must address the timeliness of Appellant’s
PCRA petition.
In reviewing an order denying post-conviction relief, we
examine whether the trial court’s determination is supported by
evidence of record and whether it is free of legal error. Where
an issue presents a question of law, the appellate court’s
standard of review is de novo, and its scope of review is plenary.
...
The PCRA provides eligibility for relief in conjunction with
cognizable claims, . . . and requires petitioners to comply with
the timeliness restrictions. . . . [A] PCRA petition, including a
second or subsequent petition, must be filed within one year of
the date that judgment becomes final. A judgment becomes
final for purposes of the PCRA 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 the review.
It is well-settled that the PCRA’s time restrictions are
jurisdictional in nature. As such, this statutory time-bar
implicates the court’s very power to adjudicate a controversy
and prohibits a court from extending filing periods except as the
statute permits. Accordingly, the period for filing a PCRA
petition is not subject to the doctrine of equitable tolling;
instead, the time for filing a PCRA petition can be extended only
by operation of one of the statutorily enumerated exceptions to
the PCRA time-bar.
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The exceptions to the PCRA time-bar are found in Section
9545(b)(1)(i)–(iii) (relating to governmental interference, newly
discovered facts, and newly recognized constitutional rights),
and it is the petitioner’s burden to allege and prove that one of
the timeliness exceptions applies. Whether a petitioner has
carried his burden is a threshold inquiry that must be resolved
prior to considering the merits of any claim. . . .
Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016)
(quotation marks and citations omitted).
In this case, Appellant’s judgment of sentence became final on
December 19, 2007, the date this Court permitted him to voluntarily
withdraw his direct appeal. See 42 Pa.C.S.A. § 9545(b)(3). Therefore,
Appellant had until December 19, 2008, to file a timely PCRA petition. See
id. at § 9545(b)(1). Because Appellant filed the instant petition on
November 30, 2015, it is untimely on its face, and the PCRA court lacked
jurisdiction to review it unless he pleaded and proved one of the statutory
exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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
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this section and has been held by that court to apply
retroactively.
Id.
Any petition invoking an exception must “be filed within [sixty] days of
the date the claim could have been presented.” Id. at § 9545(b)(2). “If the
[PCRA] petition is determined to be untimely, and no exception has been
pled and proven, the petition must be dismissed without a hearing because
Pennsylvania courts are without jurisdiction to consider the merits of the
petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.
2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
Here, Appellant invokes the newly recognized and retroactively applied
constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii) by reference
to Alleyne, and Hopkins, supra. (See Appellant’s Brief, at 8-16).
Appellant argues that Alleyne created a new rule of constitutional law that
must be applied retroactively to his case on collateral review because he is
serving an invalid mandatory minimum sentence. (See id. at 8, 11, 15-16,
26). However, as the Commonwealth noted, Alleyne is not applicable in
this case because Appellant is not serving a mandatory minimum sentence.
(See Commonwealth’s Brief, at 4-5; see also Sentencing Order, 2/06/07).
While the Commonwealth gave notice of its intent to seek at least the
mandatory minimum five-year sentence, the court did not impose this
sentence, and instead imposed a sentence above the mandatory minimum
term of incarceration. (See N.T. Trial, 1/19/07, at 55-56; see also
Sentencing Order, 2/06/07).
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Moreover, “our Supreme Court recently filed an opinion in
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) wherein it
addressed the retroactive effect of Alleyne and held ‘that Alleyne does not
apply retroactively to cases pending on collateral review. . . .’”
Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa. Super. 2016)
(internal citation formatting provided). Therefore, Alleyne does not apply
to Appellant’s case for this reason as well.
Finally, we address Appellant’s contention that his sentence imposed
pursuant to section 9712 is illegal under Alleyne and must be corrected
because “the [PCRA] [c]ourt and this . . . Court never relinquish their
jurisdiction to correct an illegal sentence and always retain the inherent
power to do so.” (Appellant’s Brief, at 23; see id. at 21-26) (emphasis
omitted). This claim is meritless because, as discussed above, Appellant is
not serving a mandatory minimum sentence under section 9712 and, even if
he were, Alleyne does not apply retroactively to cases such as his on
collateral review. Furthermore, as previously noted, “the period for filing a
PCRA petition is not subject to the doctrine of equitable tolling; instead, the
time for filing a PCRA petition can be extended only by operation of one of
the statutorily enumerated exceptions to the PCRA time-bar.” Robinson,
supra at 185 (citation and quotation marks omitted). It is well-settled that
“[a]lthough 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.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.
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Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008) (citations omitted)
(emphasis added). Therefore, Appellant’s claims premised on Alleyne fail.
In sum, Appellant’s petition is untimely and he has failed to plead or
prove the applicability of any of the three limited exceptions to the PCRA’s
jurisdictional time-bar. Therefore, we conclude that the PCRA court properly
dismissed Appellant’s PCRA petition without a hearing as untimely with no
exception to the time-bar pleaded or proven. See Robinson, supra at 185;
Jackson, supra at 519. Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
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Com. v. Watkins, M.
Combined Opinion