J-S55037-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EDWARD NICHOLAS WRIGHT, JR., :
:
Appellant : No. 70 MDA 2017
Appeal from the PCRA Order November 23, 2016
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000490-1997,
CP-36-CR-0002538-1997, CP-36-CR-0002539-1997
BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 19, 2017
Edward Nicholas Wright, Jr. (Appellant) appeals from the November
23, 2016 order that dismissed his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In 1998, after a jury trial, Appellant was found guilty of six counts of
robbery, two counts of aggravated assault, and seven counts of criminal
conspiracy. He was sentenced to an aggregate term of 35 to 70 years of
incarceration.1 This Court denied Appellant relief on direct appeal, and his
judgment of sentence became final in 2000 after our Supreme Court denied
his petition for allowance of appeal. Commonwealth v. Wright, 739 A.2d
1
Appellant was sentenced pursuant to mandatory minimum sentences for
committing a crime while possessing a firearm. See 42 Pa.C.S. § 9712(a).
See also Commonwealth v. Valentine, 101 A.3d 801, 811 (Pa. Super.
2014) (en banc) (holding this statute unconstitutional).
*Retired Senior Judge assigned to the Superior Court.
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573 (Pa. Super. 1999) (unpublished memorandum), appeal denied, 747
A.2d 368 (Pa. 1999).
On March 18, 2016, Appellant pro se filed the PCRA petition at issue in
this appeal, claiming that his sentence is illegal under Alleyne v. United
States, 133 S.Ct. 2151 (2013) (holding that a fact which triggers the
imposition of a mandatory minimum sentence is an element of the crime and
must, therefore, be determined beyond a reasonable doubt by a jury).
Counsel was appointed, and on September 13, 2016, counsel filed a motion
to withdraw and a no-merit letter pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc).
On October 18, 2016, the PCRA court issued a notice of its intent to
dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907, concluding that
Appellant’s petition was filed untimely and that this Court’s holding to
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),2 precluded the
application of any exception to the timeliness requirements of the PCRA
based upon the Alleyne decision. Thus, the PCRA court granted counsel’s
petition to withdraw and permitted Appellant 20 days to file a response.
Appellant filed a response, and on November 23, 2016, the PCRA court
dismissed Appellant’s PCRA petition.
2
In Washington, our Supreme Court held that Alleyne does not apply
retroactively to cases on collateral review.
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Appellant timely filed a notice of appeal.3 The PCRA court did not
order that Appellant file a Pa.R.A.P. 1925(b) statement, but issued a
Pa.R.A.P. 1925(a) statement, which relied on the reasoning of its October
18, 2016 notice and order.
On appeal, Appellant claims that the Alleyne decision should apply
retroactively to invalidate his sentence for two reasons: 1) because pursuant
to Montgomery v. Louisiana, 136 S.Ct. 718 (2016), section “9712 is void
ab initio;” and 2) because his situation is distinguishable from
Washington.4 Appellant’s Brief at 17.
The timeliness of a post-conviction petition is jurisdictional. See,
e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f
3
The order denying Appellant’s petition was entered on the docket on
November 23, 2016. He had 30 days, or until December 23, 2016, to file
timely a notice of appeal. See Pa.R.A.P. 903(a). Appellant’s notice of appeal
was not docketed until December 27, 2016. However, pursuant to the
prisoner mailbox rule, a pro se filing submitted by a prisoner incarcerated in
a correctional facility is deemed filed as of the date it is delivered to the
prison authorities for purposes of mailing or placed in the institutional
mailbox. Commonwealth v. Wilson, 911 A.2d 942 (Pa. Super. 2006).
Instantly, Appellant dated his notice of appeal December 18, 2016.
Moreover, December 23, 2016 was a Friday, and due to the holiday
schedule, the next business day for the courts was December 27, 2016.
Thus, because it is plausible that the notice of appeal was in the hands of
prison authorities earlier than December 23, 2016, we decline to quash this
appeal. See Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super.
1998) (“Where … the opposing party does not challenge the timeliness of the
appeal and the prisoner’s assertion of timeliness is plausible, we may find
the appeal timely[.]”).
4
The Commonwealth has declined to file a brief.
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a PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition. Without jurisdiction, we simply do not have
the legal authority to address the substantive claims.”).
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
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b) and (c).
It is clear that Appellant’s petition is facially untimely: his judgment of
sentence became final in 2000. Appellant believes his petition satisfies the
following timeliness exception: “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)(iii); Appellant’s Brief at 10-11.
However, our Supreme Court has held specifically that Alleyne does
not apply retroactively to cases on collateral review. See Washington,
supra. Even if it did apply retroactively, Appellant’s 2016 petition was not
filed within 60 days of the 2013 Alleyne decision. See Commonwealth v.
Secreti, 134 A.3d 77, 82-83 (Pa. Super. 2016) (noting petitions filed within
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60 days of Supreme Court decision recognizing retroactive application of
new constitutional right satisfied requirement of 42 Pa.C.S. § 9545(b)(2)).
In an attempt to circumvent the Washington holding, Appellant
invokes the United States Supreme Court’s decision in Montgomery, which
held that its decision in Miller v. Alabama, 567 U.S. 460 (2012),5
announced a new substantive rule of law that applies retroactively.
Montgomery, 136 S.Ct. at 736. However, as Washington made clear,
Alleyne is a procedural rule, not a substantive rule. Accordingly, the
rationale of Montgomery, which dealt with a substantive rule, cannot apply
here. In addition, Appellant was neither convicted of murder nor sentenced
to life without parole; thus, neither Miller nor Montgomery applies to him.
Because Appellant failed to establish the applicability of a timeliness
exception, the PCRA court properly dismissed the petition for lack of
jurisdiction.
Order affirmed.
5
In Miller, the Supreme Court held 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.’” 567 U.S. at
465.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
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Com. v. Wright, E., Jr.
Combined Opinion