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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GABRIEL ISHAM PITTMAN :
:
Appellant : No. 1977 EDA 2017
Appeal from the PCRA Order June 6, 2017
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000304-1998
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 20, 2018
Appellant Gabriel Isham Pittman appeals pro se from the order
dismissing as untimely his seventh petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant claims that he properly
raised exceptions to the PCRA time bar by alleging the previously unknown
facts and newly-recognized constitutional rights under 42 Pa.C.S. §
9545(b)(1)(ii) and (iii).1 He also claims that the PCRA time bar is
unconstitutional. We affirm.
On July 6, 1998, Appellant entered an open guilty plea to third-degree
murder, recklessly endangering another person, and firearms not to be carried
without a license, as well as a nolo contendere plea to aggravated assault.2
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1 We have reordered Appellant’s arguments for the purpose of this disposition.
2 18 Pa.C.S. §§ 2502(c), 2705, 6106(a), and 2702(a)(6) respectively.
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On July 24, 1998, the Commonwealth filed a notice of its intent to seek a
mandatory minimum sentence under 42 Pa.C.S. § 9172 (sentences for
offenses committed with firearms). On August 19, 1998, the trial court
sentenced Appellant to an aggregate of twenty-six to fifty-nine years’
incarceration.3
After this Court affirmed the judgment of sentence and the Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal in 1999,
Appellant filed numerous PCRA and habeas corpus petitions. Appellant’s sixth
PCRA petition was filed in September of 2015. This Court affirmed the
dismissal of Appellant’s sixth PCRA petition on January 6, 2017. See
Commonwealth v. Pittman, 3393 EDA 2015 (Pa. Super. filed Jan. 6, 2017)
(unpublished memorandum).
Appellant filed the instant PCRA petition, his seventh, on February 14,
2017. In his petition, Appellant argued that several cases, including Johnson
v. United States, 135 S. Ct. 2551 (2015), Alleyne v. United States, 570
U.S. 99 (2013), and Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016),
recognized new constitutional rights held to apply retroactively on collateral
review. Appellant also claimed that his trial counsel was ineffective for
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3 Of relevance to this appeal, the trial court sentenced Appellant to twenty to
forty years’ imprisonment for third-degree murder and five to ten years’
imprisonment for aggravated assault. Although the Commonwealth sought a
five-year mandatory minimum sentence for murder of the third-degree, the
trial court imposed a statutory maximum sentence on that count. See
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).
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permitting him to plead guilty. According to Appellant, his conviction and
sentence violated the Tenth Amendment because Pennsylvania amended the
penalties for third-degree murder to obtain federal grants under the Violent
Offender Incarceration and Truth-in-Sentencing (VOI/TIS) program.4
On April 5, 2017, the PCRA court filed a notice of its intent to dismiss,
pursuant to Pa.R.Crim.P. 907. In its notice of intent, the court concluded that
Appellant’s reliance on several cases was misplaced. The court explained that
Johnson “held that imposing an increased sentence under the residual clause
of the Armed Career Criminal Act (ACCA) violates the Constitution’s guarantee
of due process[;]” however, Appellant was not sentenced pursuant to the
ACCA. Order, 4/5/17, at n.1. It further stated that Martinez was also
inapplicable to Appellant as it “dealt with certain registration requirements
under the Sex Offender Registration and Notification Act (SORNA).” Id.
Finally, the PCRA court suggested that Alleyne did not apply because
Appellant was not sentenced to a mandatory minimum sentence. Id.
On May 5, 2017, Appellant filed a nunc pro tunc response to the PCRA
court’s notice of intent to dismiss. Appellant asserted that the intended
dismissal of his petition would violate his substantive and procedural due
process rights because the court did not require the Commonwealth to file an
answer. Appellant further asserted that the PCRA time bar violated the
Supremacy Clause of the United States Constitution because it conflicted with
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4 34 U.S.C. §§ 12101-12124.
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the Antiterrorism and Effective Death Penalty Act (AEDPA) and United States
Supreme Court decisions construing the time limitations under the AEDPA.
Appellant also averred that the Commonwealth invoked five-year
mandatory minimum sentences based on his use of a firearm. He claimed
that the United States Supreme Court decision in Hurst v. Florida, 136 S.
Ct. 616 (2016), recognized that Alleyne applied retroactively to his case. He
suggested that the Pennsylvania Supreme Court decision in Commonwealth
v. Washington, 142 A.3d 810 (Pa. 2016), which held that Alleyne does not
apply retroactively to cases pending on collateral review, was wrongly
decided.
Alternatively, Appellant asserted that his petition should be converted
to a petition to enforce a plea agreement or a petition for a writ of habeas
corpus. He concluded that he was entitled to discharge from his unlawful
confinement.
On June 7, 2017, the PCRA court dismissed Appellant’s PCRA petition.
The PCRA court adopted the reasoning it set forth in the April 5, 2017 notice
of intent to dismiss. The court opined that Appellant continued to cite
authority that was not relevant to this case, “including [AEDPA]—in an attempt
to argue that the PCRA’s time limitations are unconstitutional.” Order, 6/7/17,
at n.1. The court concluded that Appellant previously litigated a challenge to
the constitutionality of the PCRA time bar. Id.
The PCRA court acknowledged that it incorrectly indicated in its notice
of intent to dismiss that Appellant was not sentenced to a mandatory
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minimum. Id. The court explained, however, that Hurst did not hold that
Alleyne applied retroactively to cases on collateral review and that Appellant
was not entitled to relief in light of Washington. Id.
On June 20, 2017, Appellant timely filed a notice of appeal as well as a
concise statement of errors complained of on appeal. The trial court issued a
Pa.R.A.P. 1925(a) opinion. The court relied on its reasons for dismissing
Appellant’s petition and added that Appellant’s claim that it erred by failing to
order the Commonwealth to file an answer was meritless because the issue of
timeliness was jurisdictional.
Appellant raises the four questions on appeal, which we have reordered
as follows:
1. Do the newly discovered facts of public records, and
understanding of public records, regarding [VOI/TIS], a fatally
defective bill of information, and plea colloquy and sentencing
transcripts evincing that Appellant[’]s judgments of conviction
and sentence are void ab initio, do not meet the terms of the
agreement and violate the tenth and fourteenth amendments
and the contracts clauses at article I, section 10, and article 1,
section 17 of the federal and state constitutions satisfy the
[Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017)]-newly
discovered facts test, and did the PCRA court deprive Appellant
of due process and equal protection of the law by not allowing
amendment to the PCRA petition to assert these issues under
subsection 9545(b)(1)(ii)?
2. Where Appellant’s sentence is unconstitutional under Alleyne
. . . which is retroactive under Tyler v. Cain, [533 U.S. 656
(2001)] and/or has been held and/or made retroactive by
Hurst . . . and where the essential element of malice, as
defined by state law, has been retroactively been [sic] held to
be unconstitutionally void for vagueness under Johnson . . .
and Welch v. [United States, 136 S. Ct. 1257 (2016)], are
Appellant’s conviction and mandatory minimum sentence for
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third degree murder void, and aggravated mandatory
statutory/guideline sentences for related offenses void, and did
the PCRA court deprive Appellant of due process and equal
protection of the law by finding that the timeliness exception
at subsection 9545(b)(1)(iii) was not met?
3. Did the PCRA court err in dismissing the PCRA petition as
untimely where the Commonwealth did not file a motion to
dismiss on timeliness grounds, has the Commonwealth
forfeited and/or waived the affirmative defense of untimeliness
on appeal by not raising the defense in the lower court?
4. Do the 1995 procedural amendments to the PCRA render PCRA
proceedings violative of the 10th amendment?
Appellant’s Brief at 2 (full capitalization omitted).
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).
It is well settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)
(citation omitted). A PCRA 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). A judgment is final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3).
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Courts may consider a PCRA petition filed more than one year after a
judgment of sentence became final only if the petitioner pleads and proves
one of the following three statutory exceptions:
(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. § 9545(b)(1)(i)-(iii). To invoke one of these exceptions, however,
petitioner must also file his petition within sixty days of the date the claim
could have been presented. See 42 Pa.C.S. § 9545(b)(2). “Asserted
exceptions to the time restrictions for the PCRA must be included in the
petition, and may not be raised for the first time on appeal.” Commonwealth
v. Furgess, 149 A.3d 90, 93 (Pa. Super. 2016) (citation omitted).
There is no dispute here that Appellant’s conviction became final in
2000, and that Appellant’s current PCRA petition, filed on February 14, 2017,
was facially untimely. Because Appellant failed to file the instant PCRA petition
within one year after his judgment of sentence became final, he must satisfy
one of the exceptions to the PCRA time bar.
Appellant first claims that he recently discovered the VOI/TIS program
and alleges that Pennsylvania’s decision to obtain VOI/TIS grants by amending
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its laws violates the Tenth Amendment. He contends that the PCRA court
erred in failing to grant leave to amend his petition to assert a timeliness
exception under section 9545(b)(1)(ii).
However, Appellant did not plead VOI/TIS as a “previously unknown
fact” in his PCRA petition or his response to the PCRA court’s notice of intent
to dismiss his petition. Moreover, Appellant did not seek leave to amend his
petition. Therefore, this claim is waived.5 See Furgess, 149 A.3d at 93; see
also Pa.R.A.P. 302(a).
Appellant next contends that the United States Supreme Court in Hurst
recognized that Alleyne applies retroactively in a collateral proceeding. He
further claims that the Pennsylvania Supreme Court wrongly decided
Washington.
The PCRA court concluded:
First, the Pennsylvania Supreme Court has specifically held that
Alleyne does not apply retroactively to cases pending on
collateral review. Commonwealth v. Washington, 142 A.3d
810 (Pa. 2016). Second, Hurst v. Florida, 136 S. Ct. 616
(2016)—cited by [Appellant] to support his clam—did not hold that
Alleyne applies retroactively to cases on collateral review.
Order, 6/7/17, at n.1. We agree.
It is well settled that in order to establish an exception to the PCRA time
bar under section 9545(b)(1)(iii), the petitioner must establish: (1) “the right
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5Moreover, Appellant failed to establish that VOI/TIS constitutes a “fact,” see
Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011) (distinguishing
between “law” and “facts” under section 9545(b)(1)(ii)), or that he exercised
due diligence in discovering this alleged fact.
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asserted is a constitutional right that was recognized by the Supreme Court
of the United States or [the Supreme Court of Pennsylvania;]” and (2) “the
right has been held by that court to apply retroactively.” Commonwealth v.
Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (quotation marks omitted). The
asserted right must be recognized at the time the petition was filed. Id.
The Pennsylvania Supreme Court has held that Alleyne does not apply
retroactively on collateral review. Washington, 142 A.3d at 820. Appellant’s
contention that Washington was wrongly decided is unpersuasive, but also
asks this Court to disregard or overturn a controlling precedent issued by a
higher court, neither of which is within this Court’s province. See
Commonwealth v. Edwards, ___ A.3d ___, 2018 WL 487404 at *4 n.15
(Pa. Super. filed Jan. 19, 2018) (“We, of course, are duty-bound to effectuate
[our Supreme] Court’s decisional law” (citation omitted)).
Moreover, Appellant’s reliance on Hurst is unavailing.6 In Hurst, the
petitioner challenged Florida’s “hybrid” procedures for the imposition of the
death penalty after he was resentenced to death. See Hurst, 136 S. Ct. at
620. The United States Supreme Court held that Florida’s death penalty
procedures violated the Sixth Amendment. Id. at 624. The Court did not
expressly engage in a retroactivity analysis with respect to Alleyne and the
procedural history did not suggest that the Court intended Alleyne to apply
retroactively on collateral review. Therefore, Appellant’s contention that
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6 Hurst was decided on January 12, 2016, while Appellant’s appeal from his
sixth PCRA petition was pending.
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Hurst held that Alleyne applies retroactively for the purposes of section
9545(b)(1)(iii), or should alter the holding in Washington, lacks any support.
Thus, the PCRA court properly rejected Appellant’s alleged discovery of a new
constitutional right.
Appellant further contends that Johnson renders the third-degree
murder statute unconstitutionally vague. However, Johnson was decided on
June 15, 2015, approximately three months before Appellant filed his sixth
PCRA petition. Therefore, Appellant could have raised his claim in his prior
petition, and he cannot establish that the instant seventh petition was filed
within sixty days of the Johnson decision.7 See 42 Pa.C.S. § 9545(b)(2).
Appellant next argues that the PCRA court erred in dismissing his
petition as untimely without requiring the Commonwealth to file an answer.
According to Appellant, the Commonwealth’s failure to object to the timeliness
of his petition constitutes waiver of an affirmative defense. This claim is
frivolous as it is well settled that the timeliness requirements of PCRA are
jurisdictional and may be raised by a court sua sponte. See Commonwealth
v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
Lastly, Appellant claims that the PCRA time bar violates the Tenth
Amendment. However, Appellant’s claim in this regard contravenes the claim
he raised in his response to the PCRA court’s notice of its intent to dismiss the
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7In any event, we agree with the PCRA court that Johnson did not announce
a new constitutional rule held to be retroactive, but merely applied due
process principles to invalidate the “residual clause” of the ACCA.
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petition. Therefore, we will not entertain a novel legal theory raised for the
first time on appeal. See Furgess, 149 A.3d at 93; see also Pa.R.A.P.
302(a).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/18
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