J-S46041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES HENRY GREEN :
:
Appellant : No. 1848 MDA 2016
Appeal from the PCRA Order October 7, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002414-2003
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 07, 2017
Appellant James Henry Green appeals pro se the Order entered in the
Court of Common Pleas of Berks County on October 7, 2016, dismissing as
untimely his serial petition filed pursuant to the Post Conviction Relief Act
(PCRA). Because this petition is untimely without an applicable exception,
we affirm.
Following a jury trial, on March 11, 2004, Appellant was convicted of
third-degree murder, firearms not to be carried without a license, possessing
an instrument of crime and recklessly endangering another person.1 On
April 1, 2004, Appellant was sentenced to an aggregate term of twenty-
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(c), 6106, 907 and 2705, respectively.
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seven (27) years to fifty-four (54) years in prison. Appellant filed neither a
timely post-sentence motion nor a timely notice of direct appeal.
On April 22, 2004, Appellant filed an untimely Motion to Modify and
Reduce Sentence, pro se, and the trial court treated the filing as a timely,
first PCRA petition. New counsel was appointed and later filed a motion to
withdraw. The court granted counsel’s motion to withdraw, and following its
filing of a notice of its intent to dismiss Appellant’s Motion pursuant to
Pa.R.Crim.P. 907(1), the court dismissed the same on September 19, 2005.
This Court denied Appellant’s appeal on December 7, 2006, and the
Pennsylvania Supreme Court denied allowance of appeal on May 15, 2007.
Appellant filed numerous additional post-conviction petitions, each of which
was unsuccessful.
Appellant filed the instant PCRA petition, his fifth, on February 16,
2016. Therein, Appellant claimed he was serving an illegal sentence
because the trial court sentenced him “beyond the aggravated range.” On
June 17, 2016, the PCRA court issued its notice of its intent to dismiss the
petition as untimely. Appellant filed a response to the PCRA court’s notice
on July 18, 2016, wherein he asserted he was entitled to relief under the
United States Supreme Court’s decision in Alleyne v. United States,
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___U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)2 as that decision
announced a “new substantive rule of Constitutional law that applies
retroactively to Petitioner’s case” in light of the Court’s subsequent decision
in Montgomery v. Louisiana, ___ U.S. ____, 136 S.Ct. 718, 193 L.Ed.2d
599 (2016).3
The PCRA court dismissed the instant petition on October 7, 2016.
Appellant filed his Notice of Appeal on November 3, 2016.4
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2
In Alleyne, the United States Supreme Court held that any fact which
increases a mandatory minimum sentence is an “element” of the crime, and
not a “sentencing factor,” and, thus, must be submitted to the jury pursuant
to the Sixth Amendment to the United States Constitution.
3
In Montgomery, the United States Supreme Court declared its prior
holding in Miller v. Alabama, ___ U.S. ____, 132 S.Ct. 2455, 183 L.Ed. 2d
407 (2012), wherein the Court had held that mandatory sentences of life
imprisonment without parole are unconstitutional for juvenile offenders,
constitutes a substantive rule of constitutional law to which state collateral
review courts were required as a constitutional matter to give retroactive
effect. Montgomery v. Louisiana, ___ U.S. at ____, 136 S.Ct. at 736, 193
L.Ed.2d at ___.
4
In its Memorandum Opinion entered on January 20, 2017, the PCRA court
determined that because the PCRA petition had been denied on October 7,
2016, and Appellant did not file his notice of appeal until November 9, 2016,
more than thirty days later, the appeal was untimely filed and, therefore,
should be denied. Notwithstanding, Appellant dated his Notice of Appeal
November 3, 2016, and the certified docket entries list the appeal as having
been dated November 3, 2016, and filed on November 9, 2016. In addition,
the certified record contains a letter dated November 3, 2016, addressed to
the Clerk of Courts, along with a certificate of service bearing that same
date. These documents suggest Appellant’s Notice of Appeal was placed in
the hands of prison authorities on November 3, 2016; therefore, we deem
this appeal to be timely filed pursuant to the Prisoner Mailbox Rule. See
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.Super. 2011), appeal
denied, ___ Pa. ____, 46 A.3d 715 (2012)(pro se prisoner’s appeal deemed
(Footnote Continued Next Page)
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In his brief, Appellant presents the following Statement of the
Question Involved:
Whether the jury-trial guarantee in Alleyne v. United
States, 133 S.Ct. 2151 (2013), applies retroactively to
Appellant’s case and renders his sentence unconstitutional.
Brief for Appellant at 4.
This Court recently reiterated our well-settled standard of review
following the denial of PCRA relief:
When reviewing the propriety of an order denying PCRA
relief, this Court is limited to a determination of whether the
evidence of record supports the PCRA court's conclusions and
whether its ruling is free of legal error. Commonwealth v.
Robinson, ___ Pa. ____, ____, 139 A.3d 178, 185 (2016). This
Court will not disturb the PCRA court's findings unless there is no
support for them in the certified record. Commonwealth v.
Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).
At the outset, we consider whether this appeal is properly
before us. The question of whether a petition is timely raises a
question of law, and where a petitioner raises questions of law,
our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Callahan, 101 A.3d 118, 121
(Pa.Super. 2014).
All PCRA petitions must be filed within one year of the date
upon which the judgment of sentence became final, unless one
of the statutory exceptions set forth in 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii) applies. The petitioner bears the burden to
plead and prove an applicable statutory exception. If the petition
is untimely and the petitioner has not pled and proven an
exception, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider
the merits of the petition. Commonwealth v. Taylor, 65 A.3d
462, 468 (Pa.Super. 2013).
_______________________
(Footnote Continued)
filed on the date prisoner deposits appeal with prison authorities or places it
in prison mailbox under prisoner mailbox rule where appeal is received after
deadline for filing an appeal).
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:
(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 of sentence 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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). In addition, any petition
attempting to invoke one of these exceptions “shall be filed
within 60 days of the date the claim could have been presented.”
42 Pa.C.S.A. § 9545(b)(2).
Commonwealth v. Woods, ___ A.3d ____, 2017 WL 2536525, at *4
(Pa.Super. June 12, 2017).
As stated previously, Appellant was sentenced on April 1, 2004, and he
did not file a direct appeal. Thus, Appellant’s sentence became final thirty
days thereafter, on May 3, 2004.5 See Pa.R.A.P. 903(a)(stating notice of
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5
May 1, 2004, fell on a Saturday. Accordingly, Appellant had until Monday,
May 3, 2004, to file his notice of appeal. See 1 Pa.C.S.A. § 1908 (stating
that, for computations of time, whenever the last day of any such period
shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation.); Commonwealth v. Green, 862 A.2d 613,
618 (Pa.Super. 2004).
(Footnote Continued Next Page)
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appeal shall be filed within thirty days of the order from the appeal is
taken); 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final at
conclusion of direct review or at expiration of time for seeking that review).
Pursuant to 42 Pa.C.S.A. § 9545, a PCRA petition must be filed within one
year of the date the judgment becomes final, which would have been May 3,
2005. Since Appellant did not file the instant petition until February 16,
2016, almost eleven years later, it is patently untimely and the burden fell
upon Appellant to plead and prove one of the enumerated exceptions to the
one-year time-bar. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke a statutory
exception to the PCRA time-bar, a petitioner must properly plead and prove
all required elements of the exception).
Appellant attempts to invoke 42 Pa.C.S.A. § 9545(b)(1)(iii), the “newly
recognized constitutional right” exception to the PCRA time-bar. Appellant
contends that Alleyne, supra and Montgomery, supra, rendered his
sentence unconstitutional because “[t]he trial court imposed sentences
beyond the aggravated range based not on the jury’s verdict, but on the
judge’s own findings of fact that it was an intentional killing, caused by the
use of a deadly weapon upon a vital part of the body, and that it was
premeditated in that it took time—facts the jury found lacking in this case
_______________________
(Footnote Continued)
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and found Appellant not guilty of.” Brief for Appellant at 10. Appellant
further reasons that in light of Montgomery, the Alleyne decision applies
retroactively, qualifies as an exception to the PCRA time-bar, and dictates
that “any sentence in or beyond the aggravated range of the Sentencing
Guidelines based upon fact-finding beyond the scope of the jury verdict
violates the Sixth Amendment right to a jury trial.” Brief for Appellant at 11-
12.
Appellant’s analysis ignores the Pennsylvania Supreme Court’s decision
in Commonwealth v. Washington, ___ Pa. ____, 142 A.3d 810 (2016),
wherein the Court addressed a situation in which the defendant raised an
Alleyne claim in a timely PCRA petition, but his judgment of sentence had
become final prior to the Alleyne decision. The Washington Court held that
“Alleyne does not apply retroactively to cases pending on collateral review,
and that [a]ppellant's judgment of sentence, therefore, is not illegal on
account of Alleyne.” Id. at ___, 142 A.3d at 815. In addition, Alleyne was
decided in 2013, and Appellant did not file the instant PCRA petition until
February 16, 2016. Accordingly, Appellant failed to comply with 42
Pa.C.S.A. § 9545(b)(2) (stating “Any petition invoking an exception provided
in paragraph (1) shall be filed within 60 days of the date the claim could
have been presented”).
Moreover, Alleyne pertained to factors that a trial court must apply if
certain conditions are met and which increase the mandatory minimum
sentence and held these factors to be elements of the offense that must be
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submitted to the jury. As such, the parameters of Alleyne are limited to the
imposition of mandatory minimum sentences. However, the instant matter
does not involve such a situation, for while a trial court must consider the
ranges set forth in the Sentencing Guidelines, the Guidelines are not binding
upon it. Indeed, it is well-settled that the Sentencing Guidelines ultimately
are advisory only. Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super.
2002).6 Thus, Appellant is not entitled to relief under Alleyne.
To the extent Appellant attempts to evoke the newly-recognized
constitutional right exception when averring his sentence also is illegal in
light of Montgomery, and Miller, supra, it is true that the United States
Supreme Court in Montgomery declared its prior holding in Miller
constitutes a substantive rule of constitutional law to which state collateral
review courts were required as a constitutional matter to give retroactive
effect. Montgomery v. Louisiana, ___ U.S. at ____, 136 S.Ct. at 736,
193 L.Ed.2d at ___. In addition, Appellant filed the instant PCRA petition
within sixty days of the Supreme Court’s decision in Montgomery, and the
High Court held that the new rule of law announced in Miller applies
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6
The trial court’s reasoning for its sentence is found on pages 27-31 of the
notes of testimony of the sentencing hearing at which time the court
specifically articulated the factors it had considered in formulating
Appellant’s sentence. See N.T. Sentencing Hearing, 4/1/04, at 27-31.
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retroactively to cases on collateral review.7 See Montgomery, ___ U.S. at
____, 136 S.Ct. at 732, 193 L.Ed.2d at ___. Thus, if the right announced in
Miller applies to Appellant's claim, the instant PCRA petition is timely. See
Woods, supra at * 5, (citing Commonwealth v. Abdul–Salaam, 571 Pa.
219, 227, 812 A.2d 497, 501-02 (2002) (stating ruling regarding retroactive
application of new constitutional right must be made prior to filing of PCRA
petition)); see also Commonwealth v. Porter, 613 Pa. 510, 526, 35 A.3d
4, 13-14 (2012) (provisions in 42 Pa.C.S.A. § 9545(b)(1), (2) relating to
PCRA's time-bar exceptions are necessarily claim-specific given sixty-day
filing restriction and fact that the statute addresses “exceptional” claims).
However, since Appellant was over eighteen years of age when he
committed the murder and did not receive a mandatory sentence of life
imprisonment without the possibility of parole, Miller does not apply to his
case. Therefore, despite Appellant’s assertions to the contrary, the right
recognized by Miller and held to be retroactive in Montgomery does not
provide Appellant a basis for relief from the PCRA time-bar. See Miller, ___
U.S. at ____, 132 S. Ct. at 2469, ___ L.Ed.2d at ____ (holding “the Eighth
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7
The United States Supreme Court decided Montgomery on January 25,
2016, and Appellant filed the current PCRA petition on February 16, 2016. In
Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this Court
held that the date upon which Montgomery had been decided is to be used
when calculating whether a petition is timely filed under the sixty-day rule of
42 Pa.C.S.A. § 9545(b)(2).
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Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders.”) See also
Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013) (deciding
Miller is not an exception under Section 9545(b)(1)(iii) to those over the
age of eighteen at the time crimes were committed) see also Woods,
supra, at *6.
In light of the foregoing, we find Appellant’s fifth PCRA petition is
untimely and that he has failed to plead and prove an exception to the PCRA
time-bar; therefore, the PCRA court lacked jurisdiction to review the merits
of Appellant's petition and properly dismissed it. 8
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
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8
Although the PCRA court based its decision on an erroneous finding that
Appellant had not timely filed his notice of appeal, this Court is not bound by
the rationale of the lower court, and we may affirm it on any basis.
Commonwealth v. Williams, 73 A.3d 609, 617 (Pa.Super. 2013).
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