J-S34026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL A. WASHINGTON
Appellant No. 3822 EDA 2016
Appeal from the PCRA Order Dated November 15, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003003-2005
CP-15-CR-0003130-2005
CP-15-CR-0005357-2005
CP-15-CR-0005974-2005
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 11, 2017
Appellant, Michael A. Washington, appeals pro se from the order
dismissing his second petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In our prior memorandum decision resolving Appellant’s first PCRA
petition, we set forth the following background:
In docket number 5357-2005, appellant was convicted by a jury
of one (1) count of Possession of a Controlled Substance with the
Intent to Deliver (“PWID”) cocaine, one count of Possession of a
Controlled Substance (cocaine), and one (1) count of Possession
of Drug Paraphernalia. On May 31, 2006, [Appellant] was
sentenced on the one count of PWID to three (3) to six (6)
years’ incarceration in a state correctional institution. No
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*
Retired Senior Judge assigned to the Superior Court.
J-S34026-17
sentence was imposed on the Possession of Drug Paraphernalia
or Possession of a Controlled Substance counts. Appellant
received credit for time served.
In docket number 5974-2005, appellant entered a negotiated
guilty plea to one (1) count of Persons Not to Possess a Firearm
and one (1) count of PWID (cocaine). On the one count of
Persons Not to Possess a Firearm, appellant was sentenced to
five (5) to ten (10) years’ incarceration in a state correctional
institution. This sentence was to run consecutive to the
sentence imposed in docket number 5357-2005. On the one
count of PWID, appellant received five (5) years of probation to
be served consecutive to the sentence imposed on the Persons
Not to Possess a Firearm charge. As part of this negotiated plea
agreement, the sentences imposed in docket numbers 3003-
2005 and 3130-2005 were to run concurrent with the sentences
imposed in this case and also with docket number 5357-2005.
In docket number 3003-2005, appellant plead guilty pursuant to
a negotiated guilty plea to two (2) counts of PWID (cocaine).
Appellant was sentenced on count one to two (2) to four (4)
years’ incarceration in a state correctional institution. On count
two of that same information, appellant was sentenced to two
(2) to four (4) years’ incarceration in a state correctional
institution. The second PWID count was imposed concurrent
with the first count. The sentences imposed in this docket
number were to run concurrent with the sentences imposed in
docket numbers 5357-2005 and 5974-2005.
In docket number 3130-2005, appellant plead guilty pursuant to
a negotiated guilty plea to one (1) count of PWID (cocaine).
Appellant was sentenced on the one count of PWID to two (2) to
four (4) years’ incarceration in a state correctional institution
followed by two (2) years of consecutive probation. The
sentence imposed in this docket number was to run concurrent
to the sentences imposed in docket numbers 5357-2005 and
5974-2005.
Commonwealth v. Washington, No. 1157 EDA 2016, at 1-2 (Pa. Super.
Sept. 23, 2016) (citation to the record omitted).
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Appellant never filed a direct appeal. Appellant completed his
sentence for Docket Number 3003-2005 in 2010 and his sentence for Docket
Number 5357-2005 in 2011. On August 20, 2015, Appellant was found in
violation of his probation for Docket Numbers 3150-2005 and 5974-2005
and was sentenced to two to five years’ incarceration.
On November 12, 2015, appellant filed a pro se PCRA petition
with this Court. On November 24, 2015, Robert P. Brendza,
Esquire, was appointed to represent appellant in all matters
pertaining to the Petition. On February 2, 2016, Attorney
Brendza petitioned the Court for leave to withdraw as PCRA
counsel, filing a “no-merit” letter pursuant to the procedures
outlined in Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988) (en banc).
* * *
On March 22, 2016, the PCRA court entered an order dismissing
appellant’s PCRA petition, rejecting appellant’s argument that
Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151
(2013), should be applied retroactively in his case. The PCRA
court also granted Attorney Brendza leave to withdraw as PCRA
counsel.
Washington, No. 1157 EDA 2016, at 2-4 (citation to the record omitted).
On September 23, 2016, this Court affirmed the dismissal of the first PCRA
petition. Id. at 1, 8.
Appellant then filed the current PCRA petition. The handwritten date
on the second PCRA petition is September 28, 2016; the date on its
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accompanying certificate of service is the same.1 On September 30, 2016,
this second PCRA petition was received by the Chester County Clerk of
Court. Pursuant to the “prisoner mailbox rule,” we will consider Appellant’s
current PCRA petition filed as of September 28, 2016. Commonwealth v.
Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016) (“under the ‘prisoner
mailbox rule’ a document is deemed filed when placed in the hands of prison
authorities for mailing”).
On October 21, 2016, the trial court entered a notice of its intent to
dismiss Appellant’s second PCRA petition pursuant to Pa.R.Crim.P. 907.
According to its accompanying certificate of service, on November 6, 2016,
Appellant mailed a response to that notice to the chambers of the Honorable
William P. Mahon and to the Chester County District Attorney’s Office, but
not to the Chester County Clerk of Courts. The response was postmarked on
November 8, 2016. Order, 11/15/16, at 1 n.1. Judge Mahon’s chambers
received the response on November 14, 2016. The record is unclear as to
how it was transferred to the Chester County Clerk of Courts, but, from the
notation on the docket, “Received in chambers 11-14-16 and filed with
Clerks on 11-15-2016,” we presume that Judge Mahon’s chambers
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1
Neither the Commonwealth nor the PCRA court have contended that the
PCRA court could not consider Appellant’s September 28, 2016 PCRA petition
until after the time expired for Appellant to seek Supreme Court review of
this Court’s September 23, 2016 affirmance of the dismissal of Appellant’s
first PCRA petition, and, in light of our disposition, we do not address that
question here. See generally Commonwealth v. Lark, 698 A.2d 43 (Pa.
1997).
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forwarded the response to the Chester County Clerk of Courts, where it was
officially filed on November 15, 2016.
On that same day, November 15, 2016, the trial court entered an
order dismissing Appellant’s second PCRA petition as “both untimely and
fail[ing] to establish one of the enumerated exceptions to the one year
requirement under the PCRA.” Order, 11/15/16, at 1 n.1.
On December 9, 2016, Appellant filed a notice of appeal to this Court.
He simultaneously filed a statement of matters complained of on appeal but
did not serve the PCRA court, in contravention of Pa.R.A.P. 1925(b)(1)
(“Appellant shall file of record the Statement and concurrently shall serve
the judge”). On December 19, 2016, the PCRA court ordered Appellant “to
file of record and serve upon” the PCRA court “a concise statement . . . of
errors complained of on appeal” within twenty-one days of the date of the
order. Appellant did not comply. Nevertheless, because Appellant did file a
Rule 1925 Statement on December 9, 2016, we will not find waiver on this
basis.
Appellant has raised the following issues for this court’s review, which
we repeat verbatim:
A. Does not the decision of the Pennsylvania Supreme Court
in Commonwealth v. Vasquez, 744 A.2d 128[0] (Pa. 2000),
which held that non-compliance with Pa.R.Crim.[P. 720] and [42
Pa.C.S. §] 5505 creates no bar to reviewing the application by
the trial court of 42 Pa. C.S. § 9714?
By relying upon the Pennsylvania Supreme Court’s interpretation
of the relevant law that non-compliance with [the Pennsylvania
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Rules of Criminal Procedure] creates no bar to reviewing the
application by the trial court, does not the Pennsylvania
Supreme Court in Commonwealth v. Vasquez, 744 A.2d [at]
1284[, and] in Commonwealth v. Barndt, 74 A.3d [185,] 196-
97 ([Pa. Super.] 2013), constitute illegal sentencing claims
exception to the time bar should accommodate claims of a post-
conviction petitioner’s proof, which is a central concern
underlying both the PCRA and traditional writ of habeas corpus
review?
By applying coexisting case law that trial courts never relinquish
their jurisdiction in its holding in Commonwealth v. Vasquez,
744 A.2d at 1284 [] (citing Commonwea[l]th v. Smith, [598
A.2d 268] (Pa. 1991) (same)[)], does not the Pennsylvania
Supreme Court establish an exception to the time constraints
under the Pennsylvania Post Conviction Relief Act, 42 Pa. C.S.
[§] 9542, action established in 42 Pa. C.S. pt. VIII, ch. 95,
subch. B shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for
the same purpose that exist when subch. B takes effect?
B. Does not the recent decision of the United States Supreme
Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), and
its progeny, Commonwealth v. Newman, 99 A.3d 86 (2014),
including Commonwealth v. Wately A.3d 108, 117 (Pa. Super.
2013), Commonwealth v. Valentine, 2014 Pa. Super 220,
2014 WL-4942256, 2014 Pa. Super. Lexis 3420 (2014);
Commonwealth v. [Hopkins,] 117 A.3d 247 (Pa. 2015), and
Commonwealth v. Wolfe, [140 A.3d 651] (Pa. 2016),
constitute illegal sentencing claims that any fact that, by law,
increases the penalty for a crime is an “element” that must be
submitted to the jury and found beyond a reasonable doubt?
By relying upon the recent developments in the area of the Sixth
Amendment, and the Due Process Clause in Alleyne v. United
States, 133. U.S. 2151 (2013), and its progeny,
Commonwealth v. Newman, 99 A.3d 86 (2014), including
Commonwealth v. Wolfe, [140 A.3d 651] (Pa. 2016), does not
the Pennsylvania Supreme Court’s state law conclusion pursuant
to 1 Pa. C.S. § 1925 Constitutional Construction of Statutes,
extrapolates from the holding in Alleyne rendering those
Pennsylvania mandatory sentencing statutes that do not pertain
to prior convictions constitutionally infirm insofar as they permit
a judge to automatically increase a defendant’s sentence based
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on a preponderance of the evidence standard, constitute that
non-compliance with Pa.R.Crim. Proc’s creates no bar to
reviewing the application by the trial court?
C. Does not the PCRA Court’s Answer fail to address
Petitioner’s illegal sentencing claims that non-compliance with
Pa.R.Crim. Proc’s create no bar to reviewing the application by
the trial court in any meaningful way, for it also fails to even
mention the applicability of 42 Pa. C.S. § 9542 action established
in 42 Pa. C.S. pt. VIII, ch. 95, subch. B shall be the sole means
of obtaining collateral relief and encompasses all other common
law and statutory remedies for the same purpose that exist
when subch. B takes effect, before denying the PCRA motion as
without merit and untimely filed?
Appellant’s Brief at 1-3 (some formatting altered).
Our standard of review of an order dismissing a petition under the
PCRA requires that we determinate whether the order is supported by the
evidence of record and is free of legal error. Commonwealth v. Halley,
870 A.2d 795, 799 n.2 (Pa. 2005).
Preliminarily, we note that Appellant is no longer serving sentences at
Docket Numbers 3003-2005 and 5357-2005. To be eligible for relief
pursuant to the PCRA, a petitioner must be currently serving a sentence of
imprisonment, probation, or parole. 42 Pa.C.S. § 9543(a)(1)(i);
Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997). Because
Appellant is not currently serving a sentence at either of these two docket
numbers, he is not entitled to relief pursuant to the PCRA for any convictions
under these two dockets. We therefore only examine his PCRA petition
claims with respect to Docket Numbers 3150-2005 and 5974-2005, under
which he is still serving a sentence.
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The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges and the petitioner proves one of the
following three exceptions to the time limitations set forth in Section
9545(b)(1) of the statute:
(i) the failure to raise the claim previously was the result of
interference of 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.
A PCRA petition invoking one of these statutory exceptions must “be filed
within 60 days of the date the claims could have been presented.”
Hernandez, 79 A.3d at 651-52 (citing 42 Pa.C.S. § 9545(b)(2)). Asserted
exceptions to the time restrictions in the PCRA must be included in the
petition “and may not be raised for the first time on appeal.”
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal
denied, 959 A.2d 927 (Pa. 2008).
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A probation revocation proceeding may give rise to a limited PCRA
remedy, but only in limited situations will a probation revocation “reset the
clock” on a PCRA petition. Commonwealth v. Garcia, 23 A.3d 1059, 1062
n.3 (Pa. Super. 2011), appeal denied, 38 A.3d 823 (Pa. 2012). While an
offender may file a PCRA petition within one year following the conclusion of
the direct review of any new sentence imposed following a revocation of
probation, the only issues that may be raised in such a PCRA petition relate
to the validity of the revocation proceeding and the legality of any new
sentence that was imposed. Commonwealth v. Fowler, 930 A.2d 586,
592 (Pa. Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008);
Commonwealth v. Ballard, 814 A.2d 1242, 1244 (Pa. Super. 2003).
Here, we cannot tell from his brief whether Appellant is challenging the
legality of his initial sentence or of the sentence imposed pursuant to his
probation revocation.2 If Appellant is challenging the legality of his original
sentence, entered on May 31, 2006, then his judgment of sentence became
final on June 30, 2006, when the 30-day period for filing a direct appeal
expired. Pa.R.A.P. 903(a). Thus, Appellant would have had to file any PCRA
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2
Because Appellant’s brief does not make any mention of his probation
revocation but does reference his mandatory minimum sentence, we believe
that he is likely challenging his original sentence imposed on May 31, 2006.
See Appellant’s Brief at 2, 4-6, 8, 10.
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petition one year thereafter, i.e., by July 2, 2007.3 If Appellant is
challenging the legality of his revocation-of-probation sentence, his
probation revocation “reset the clock” for his PCRA petition. See Garcia, 23
A.3d at 1062 n.3; Fowler, 930 A.2d at 592; Ballard, 814 A.2d at 1244. He
did not file a direct appeal of his probation revocation, and his sentence
therefore became final on September 21, 2015.4 Pa.R.A.P. 903(a).
Therefore, Appellant would have had to file any PCRA petition one year
thereafter, i.e., by September 21, 2016. Appellant’s second PCRA petition,
filed on September 28, 2016, was therefore patently untimely for either
sentence unless Appellant pleaded and proved one of the three time-bar
exceptions.
Appellant did not plead any of the time-bar exceptions for his first and
third issues.5 For his second challenge, relating to Alleyne and its progeny,
Appellant relies on the third exception – that “the right asserted is a
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3
One year after June 30, 2006, was Saturday, June 30, 2007; the next
business day thereafter was Monday, July 2, 2007. 1 Pa.C.S. § 1908.
4
Thirty days after Appellant’s sentence for violation of his probation was
Saturday, September 19, 2015; the next business day thereafter was
Monday, September 21, 2015. 1 Pa.C.S. § 1908.
5
“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. Infante, 63 A.3d 358, 365 (Pa. Super. 2013)
(citing Fowler, 930 A.2d at 592). “[E]ven claims that a sentence was
illegal, an issue deemed incapable of being waived, are not beyond the
jurisdictional time restrictions.” Commonwealth v. Grafton, 928 A.2d
1112, 1114 (Pa. Super. 2007).
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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)(iii). See Appellant’s Brief at 2-4, 9, 12. In response,
the Commonwealth, along with the PCRA court, notes that Appellant did not
file his second PCRA petition within sixty days of the date that Alleyne was
decided. Commonwealth’s Brief at 7, 12; Notice of Intent to Dismiss PCRA
Pet. Pursuant to Pa.R.Crim.P. 907(1), 10/21/26, at 4-5 n.1.6
We agree with the PCRA court that Appellant’s petition is untimely.
Alleyne was decided on June 17, 2013, and Appellant did not file his current
PCRA petition until September 28, 2016 – more than “60 days [after] the
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6
The Commonwealth further argues that Appellant is not eligible for relief
because he is no longer serving the original sentences of imprisonment;
rather, he is currently serving the violation-of-probation sentences that were
imposed after he violated the probation on his original sentences. See
Commonwealth’s Brief at 12-13. However, a violation of probation is not
considered a separate offense, but an element of the original sentence. See
Commonwealth v. Pierce, 441 A.2d 1218, 1220 (Pa. 1982) (“The
imposition of total confinement upon revocation of appellant’s probation was
not a second punishment for his robbery conviction, but was an integral
element of the original conditional sentence”); Commonwealth v. Colding,
393 A.2d 404, 405-06 (Pa. 1978) (the revocation of probation and the
imposition of a term of total confinement did not violate the double jeopardy
clause, since the defendant was given one conditional sentence which
merely deferred sentencing the defendant to a fixed term of total
confinement until such time as he violated the conditions of probation); see
also 42 Pa.C.S. § 9771(b) (“Upon revocation the sentencing alternatives
available to the court shall be the same as were available at the time of
initial sentencing, due consideration being given to the time spent serving
the order of probation”).
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date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). 7
Based on the foregoing, the PCRA court correctly concluded that it lacked
jurisdiction to consider Appellant’s second PCRA petition because it is time-
barred. We therefore affirm the PCRA court’s order denying Appellant post-
conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
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7
Assuming this allegation of error were timely, it still would not entitle
Appellant to relief because it was previously litigated and rejected by this
Court. 42 Pa.C.S. § 9544(a)(3) (an issue has been previously litigated if “it
has been raised and decided in a proceeding collaterally attacking the
conviction or sentence”); see Washington, No. 1157 EDA 2016, at 4-5
(raising following issue in Appellant’s first PCRA Petition: “Does Not A
Challenge To A Sentence Pursuant to Alleyne v. United States, 133 S.Ct.
2151 (2013), implicate[] the legality of the sentence and is therefore non-
waivable?”).
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