J-S56044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN KEITH BENNER,
Appellant No. 227 EDA 2017
Appeal from the PCRA Order November 16, 2016
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0000320-2008
BEFORE: BOWES, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 29, 2017
Appellant, Brian Keith Benner, appeals, pro se, from the order of
November 16, 2016, dismissing, without a hearing, his first petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Because the petition is untimely without an applicable exception, we
affirm.
We take the underlying facts and procedural history in this matter
from this Court’s August 18, 2010 memorandum and our independent review
of the certified record.
[Appellant] was charged with over ninety counts relating to
child pornography. He entered an open plea of guilty to ten of
the counts on June 23, 2008. . . . [After an issue arose
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S56044-17
concerning the timeliness of the Commonwealth’s notice of
intent to seek the mandatory minimum sentence, the trial court
held a hearing on the issue].
* * *
. . . [Ultimately, the trial] court heard argument on the
issue of whether the notice was untimely under [42 Pa.C.S.A. §
9718.2(d)]. By order filed on February 2, 2009, [the trial] court
decreed that it would impose the mandatory minimum sentence
upon proof of the facts required by subsection 9718.2(a), but
also expressly granted [Appellant] leave to withdraw his guilty
plea if he so desired. Because sentencing was not scheduled
until [July 7], 2009, [Appellant] was given ample time to
withdraw his open plea if he wished to do so. When the date for
the sentencing hearing arrived, [Appellant] declined to withdraw
his plea, and [the trial] court imposed concurrent mandatory
minimum sentences.
(Commonwealth v. Benner No. 2329 EDA 2009, unpublished
memorandum at *2-3 (Pa. Super. filed Aug. 18, 2010) (quoting Trial Court
Opinion, 10/15/09, at 1-2) (footnote omitted)). On August 18, 2010, this
Court affirmed the judgment of sentence. The Pennsylvania Supreme Court
denied leave to appeal on February 9, 2011. (See Commonwealth v.
Benner, 17 A.3d 1250 (Pa. 2011)).
On June 16, 2016, Appellant, acting pro se, filed the instant PCRA
petition seeking to vacate his sentence pursuant to Alleyne v. United
States, 133 S.Ct. 2151 (2013). The PCRA court appointed counsel on July
29, 2016.
On October 20, 2016, the PCRA court issued notice of its intent to
dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure
907(1). On November 16, 2016, the PCRA court dismissed the petition as
-2-
J-S56044-17
untimely. On November 18, 2016, PCRA counsel submitted a petition to
withdraw as counsel, attached to it was a Turner/Finley1 letter.2 On
November 29, 2016, the PCRA court granted counsel’s request to withdraw.
On December 13, 2016,3 Appellant filed a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On January 3, 2017,4
Appellant filed a notice of appeal.5 On March 6, 2017, the PCRA court issued
an opinion. See Pa.R.A.P. 1925(a).
____________________________________________
1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
The Turner/Finley letter, which is addressed to the PCRA court is dated
September 26, 2016. It appears that PCRA counsel sent a copy of the letter
to Appellant that same day. (See Petition for Leave to Withdraw as Counsel,
11/18/16, at Exhibit A). It is not readily apparent why counsel, as is proper,
did not file the Turner/Finley letter prior to the dismissal of the PCRA
petition. However, it is clear that counsel did notify Appellant of his intent to
withdraw and explained why the petition was untimely with no exceptions
applying.
3
December 13, 2016, is the date Appellant delivered the document to prison
officials for mailing. “[T]he prisoner mailbox rule provides that a pro se
prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011) (citation omitted).
4
Again, this is the mailing date. See Chambers, supra at 38.
5
We note that while Appellant filed his Rule 1925(b) statement sua sponte,
he filed it within the thirty-day appeal period. He did not file his notice of
appeal within that period. However, the rules for filing notices of appeal
“shall be liberally construed to secure the just, speedy and inexpensive
determination of every matter to which they are applicable.” Pa.R.A.P.
105(a). It is evident that Appellant sought to obtain relief from the
dismissal of his PCRA petition and thought that by filing the Rule 1925(b)
(Footnote Continued Next Page)
-3-
J-S56044-17
On appeal, Appellant raises the following questions for our review:
I. Did the [PCRA] court, Court of Common Pleas of
Montgomery County, err as a matter of law when it determined
that a new rule of law announced by the United States Supreme
Court was not applicable to Appellant’s judgement of sentence?
II. Was Appellant denied due process of law during
collateral proceedings challenging the judgement of sentence?
III. Is [Appellant] serving illegal and unconstitutional
sentences?
IV. [Are Appellant’s] illegal and unconstitutional sentences
subject to correction?
V. Does the sentencing court retain the power
(jurisdiction) to correct illegal and unconstitutional sentences
[Appellant] is serving?
(Appellant’s Brief, at 5) (unnecessary capitalization omitted).
Our standard of review for an order denying PCRA relief is well-settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record. . . .
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
_______________________
(Footnote Continued)
statement he was so doing, yet lacked the legal knowledge to realize that he
first needed to file a notice of appeal. In the interest of judicial economy we
will regard as done what ought to have been done and deem Appellant’s
Pa.R.A.P. 1925(b) statement as a timely filed notice of appeal. See id.; see
also Zitney v. Appalachian Timber Products, Inc., 72 A.3d 281, 285
(Pa. Super. 2013).
-4-
J-S56044-17
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his PCRA petition on June 16, 2016. The PCRA
provides that “[a]ny petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s judgment of
sentence as to these matters became final on May 10, 2011, ninety days
after the Pennsylvania Supreme Court denied leave to appeal and Appellant
did not file a petition for a writ of certiorari with the United States Supreme
Court. See U.S.Sup.Ct.R. 13. Because Appellant did not file his current
petition until June 16, 2016, the petition is facially untimely. See 42
Pa.C.S.A. § 9545(b)(1). Thus, he must plead and prove that he falls under
one of the exceptions at Section 9545(b) of the PCRA. See id.
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully 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.
-5-
J-S56044-17
Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any
of the above exceptions must file the petition “within [sixty] days of the date
the claim could have been presented.” Id. at § 9545(b)(2). The
Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s
burden to plead and prove that one of the above-enumerated exceptions
applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008), cert. denied, 555 U.S. 916 (2008).
In the instant matter, Appellant appears to contend that his petition is
timely under Section 9545(b)(1)(iii), specifically that the United States
Supreme Court’s decision in Alleyne, supra renders his sentence illegal.
(See Appellant’s Brief, at 8-14). Further, Appellant contends that the U.S.
Supreme Court’s decisions in Montgomery v. Louisiana, 136 S.Ct. 718
(2016), and Welch v. United States, 136 S.Ct. 1257 (2016) render his
PCRA petition timely. (See id.). We disagree.
Initially, we note that the fact that Appellant challenges the legality of
his sentence does not allow him to evade the PCRA’s timeliness
requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the
Pennsylvania Supreme Court rejected this contention. The Fahy Court
stated, “[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.” Id. at 223 (citation omitted). Thus, Appellant cannot
-6-
J-S56044-17
elude the PCRA’s timeliness requirements based on a claim of an illegal
sentence. See id.
Moreover, “a new rule of constitutional law is applied retroactively to
cases on collateral review only if the United States Supreme Court or the
Pennsylvania Supreme Court specifically holds it to be retroactively
applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266,
271 (Pa. Super. 2016) (citation omitted). Neither Court has held that
Alleyne is applied retroactively. Further, in a decision that post-dates
Montgomery and Welch,6 our Supreme Court has unequivocally held that
Alleyne does not apply retroactively to cases pending on collateral review.
See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).
Here, Appellant was sentenced in 2009. His judgment of sentence
became final in 2011. Thus, this matter is clearly on collateral review, and
his PCRA petition is facially untimely. Because Alleyne does not apply
retroactively to cases on collateral review, it cannot afford Appellant relief.
See id.; see also Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.
Super. 2015); Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014).
____________________________________________
6
Appellant does not point to any cases that have held that the decision in
Montgomery or Welch renders Alleyne retroactive to cases on collateral
review. (See Appellant’s Brief, at 8-14).
-7-
J-S56044-17
Thus, Appellant’s PCRA petition is untimely with no statutory exception
to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly,
we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
-8-