J-S55003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAINE SHEPPARD PELZER, :
:
Appellant : No. 1927 MDA 2016
Appeal from the PCRA Order November 2, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001989-2001
BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 07, 2017
Caine Sheppard Pelzer appeals pro se from the Order entered on
November 2, 2016, in the Court of Common Pleas of Luzerne County,
denying his second Petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. We affirm.
On April 15, 2002, the court sentenced Appellant pursuant to 42
Pa.C.S. § 97121 to an aggregate term of 22 to 44 years’ incarceration after a
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. § 9712 pertains to sentences for offenses committed with
firearms and required a mandatory minimum sentence of at least 5 years’
imprisonment. On August 20, 2014, our Supreme Court found the
imposition of mandatory minimum sentences provided in Section 9712
unconstitutional pursuant to Alleyne v. United States, 133 S.Ct. 2151
(2013). See Commonwealth v. Newman, 99 A.3d 86, 103 (Pa. Super.
2014) (en banc). See also Commonwealth v. Valentine, 101 A.3d 801
(Pa. Super. 2014).
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jury convicted him of 22 offenses relating to a home invasion that took place
on February 17, 2001. This Court affirmed Appellant’s Judgment of
Sentence on May 7, 2003. Commonwealth v. Pelzer, No. 987 MDA 2002,
unpublished memorandum (Pa. Super. filed May 7, 2003). Appellant did not
petition the Pennsylvania Supreme Court for permission to appeal;
therefore, his Judgment of Sentence became final on June 6, 2003.2
Appellant filed his first PCRA Petition on April 1, 2008, in which he
acknowledged that his Petition was untimely, but claimed that his counsel
had abandoned him. Ultimately, on June 28, 2013, the PCRA court denied
Appellant’s Petition. This Court affirmed the PCRA court’s order on July 14,
2014. Commonwealth v. Pelzer, No. 1445 MDA 2013, unpublished
memorandum (Pa. Super. filed July 14, 2014).
On February 20, 2016, Appellant filed the instant PCRA Petition in
which he challenged the legality of his sentence and claimed that he was
entitled to relief pursuant to Alleyne v. United States,3 and Montgomery
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2
See 42 Pa.C.S. § 9545(b)(3) (mandating that a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking the review); Pa.R.A.P. 1113(a) (stating “a petition for
allowance of appeal shall be filed with the Prothonotary of the Supreme
Court within 30 days after the entry of the order of the Superior Court
sought to be reviewed”).
3
Alleyne v. United States, 133 S.Ct. 2151 (2013) (holding that any fact
that increases a mandatory minimum sentence for a crime is an element of
that crime that must be submitted to the jury).
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v. Louisiana.4 PCRA Petition, 2/20/16, at 2, 9. Following a hearing, on
November 2, 2016, the PCRA court dismissed the Petition as untimely. This
appeal followed.
Appellant raises the following two issues in his Brief:
1. Whether Pennsylvania’s mandatory minimum sentencing
act under 42 Pa.C.S. § 9712 is illegal, unconstitutionally
invalid, void and of no force and effective with retroactive
application to the Appellant at all turns where he was
charged, tried and acquitted of numerous firearms
violations but subsequently sentenced to a determinate
sentence of 44 years of incarceration where he is actually
innocent of his sentence enhancement in light of Alleyne
v. United States, [ ] 133 S.Ct. 2151 (2013);
Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa.
2015); Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
Thereby violating Appellant’s Sixth, Eighth and Fourteenth
Amendments to the Pennsylvania and United States
Constitutions going beyond the state[’]s power to impose
such illegal penalty?
2. Whether Pennsylvania courts are enforcing an illegal
penalty upon Appellant which automatically sentenced him
to 44 years under 42 Pa.C.S. § 9712 by refusing to give
Appellant retroactive effect of Alleyne v. United
States, [ ] 133 S.Ct. 2151 (2013); Commonwealth
v. Hopkins, 117 A.3d 247, 262 (Pa. 2015);
Montgomery v. Louisiana, 136 S.Ct. 718 (2016). For
substantive violations which he is actually innocent of that
automatically altered the range of conduct and punishment
for a class of people that is denied eligibility for probation,
parole, work release or furlough once sentenced under §
9712 in violation of the Sixth and Eighth Amendments to
the Pennsylvania and United States Constitutions?
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4
Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (concluding that the
Court’s holding in Miller v. Alabama, 132 S.Ct. 2455 (2012), prohibiting
mandatory life without parole sentences for juvenile offenders, applied
retroactively).
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Appellant’s Brief at 3.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014).
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA petition is a jurisdictional
requisite).
Under the PCRA, any Petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). As noted supra, Appellant’s Judgment of
Sentence became final on June 6, 2003. The statutory exceptions to the
timeliness provisions allow for very limited circumstances to excuse the late
filing of a petition;5 a petitioner asserting an exception must file a Petition
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5
(b) Time for filing petition.-
(1) Any petition under this sub-chapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment 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
(Footnote Continued Next Page)
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within 60 days of the date the claim could have been presented. See 42
Pa.C.S. § 9545(b)(1)-(2).
Because Appellant’s Judgment of Sentence became final on June 6,
2003, in order to be timely, Appellant must have submitted his PCRA Petition
by June 6, 2004. See 42 Pa.C.S. § 9545(b)(1). Appellant filed the instant
Petition on February 20, 2016, almost 13 years after his Judgment of
Sentence became final. The PCRA court properly concluded that Appellant’s
Petition is facially untimely.
In his Brief to this Court, Appellant attempts to invoke the timeliness
exception under Section 9545(b)(1)(iii), alleging that his illegal sentence
claim is based on a newly-recognized Constitutional right, which is
retroactive in application. See Appellant’s Brief at 17, 19 (citing Alleyne,
supra, Montgomery, supra.).
_______________________
(Footnote Continued)
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)(i)-(iii).
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As long as this court has jurisdiction over the matter, a legality of
sentence issue is reviewable and cannot be waived. Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA Petition over which
we have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (“Although 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. Miller,
102 A.3d 988, 995-96 (Pa. Super. 2014) (explaining that the decision in
Alleyne does not invalidate a mandatory minimum sentence when
presented in an untimely PCRA Petition).
Appellant argues that, pursuant to the holding in Montgomery,
supra, Alleyne is retroactive and his PCRA Petition, filed within 60 days of
Montgomery, is timely. Contrary to Appellant’s claim, however,
Montgomery only concerned the specific issue of the retroactive application
of Miller v. Alabama, supra,6 and not the retroactivity of Alleyne
generally. In fact, our Supreme Court has recently reiterated that Alleyne
does not apply retroactively on post-conviction collateral review. See
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).
Accordingly, the PCRA court properly concluded that Appellant failed to
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6
The Court in Miller held unconstitutional mandatory life without parole
sentences for juveniles .
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plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §
9545(b)(1), and properly dismissed Appellant’s Petition as untimely. Thus,
we affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
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