J-S47020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD STUART KAMARER
Appellant No. 1594 MDA 2015
Appeal from the Order Entered July 15, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000696-2005
BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JUNE 09, 2016
Ronald Kamarer appeals from an order dismissing his petition under
the Post Conviction Relief Act (“PCRA”), which he styled as a habeas corpus
petition. We affirm.
On December 12, 2006, Kamarer pled guilty to possession with intent
to deliver a controlled substance (“PWID”)1 and other drug-related offenses.
On May 16, 2007, the court sentenced Kamarer to 5-10 years’ imprisonment
for PWID; it did not impose any further sentence on the other charges. The
court stated in its sentencing order that Kamarer’s sentence for PWID was a
mandatory minimum. On May 25, 2007, Kamarer filed a motion to modify
his sentence. On May 30, 2007, the court denied his post-sentence motion.
____________________________________________
1
35 P.S. § 780-113(a)(30).
J-S47020-16
Kamarer filed a direct appeal, and this Court affirmed on July 10, 2008.
Kamarer filed a petition for allowance of appeal, which the Supreme Court
denied on May 6, 2009. Kamarer did not appeal to the United States
Supreme Court, so his sentence became final on August 4, 2009.
In 2010, Kamarer filed a timely PCRA petition. The PCRA court
appointed counsel to represent Kamarer but ultimately denied the petition
after a hearing. On September 30, 2011, this Court affirmed.
On November 10, 2014, Kamarer filed a PCRA petition alleging that his
mandatory minimum sentence was unconstitutional under Alleyne v.
United States, 133 S.Ct. 2151 (2013), and requesting appointment of
counsel. On December 9, 2014, the PCRA court denied Kamarer’s request
for the appointment of counsel and directed him to file a supplemental
petition within thirty days. Kamarer did not comply with this order. On
February 9, 2015, the court filed an opinion and order stating its intent to
dismiss Kamarer’s petition without a hearing. On March 30, 2015, the court
dismissed Kamarer’s PCRA petition.
On June 18, 2015, Kamarer filed what he labeled a “habeas corpus”
petition, again claiming that his sentence was unconstitutional under
Alleyne. On July 15, 2015, the court filed an opinion and order dismissing
Kamarer’s petition. Kamarer filed a timely appeal from this order, and both
Kamarer and the court complied with Pa.R.A.P. 1925.
-2-
J-S47020-16
In this appeal, Kamarer argues that the court erred in dismissing his
“habeas corpus” petition because his sentence was unconstitutional under
Alleyne. At the outset, we agree with the PCRA court that it properly
treated Kamarer’s petition as a PCRA petition instead of a habeas corpus
petition. The PCRA provides: “The action established in this subchapter 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
this subchapter takes effect, including habeas corpus and coram nobis.” 42
Pa.C.S.A. § 9542. Thus, where a petitioner's claim is cognizable under the
PCRA, the petitioner must proceed thereunder. Commonwealth v. Taylor,
65 A.3d 462, 465–66 (Pa.Super.2013). A court must treat such a petition as
a PCRA petition regardless of its title. Id.
This Court has held that Alleyne claims implicate the legality of a
sentence. Accordingly, Kamarer’s Alleyne argument is cognizable under the
PCRA, not under habeas corpus law. See Commonwealth v. Newman, 99
A.3d 86, 90 (Pa.Super.2014) (en banc); Commonwealth v. Ruiz, 131 A.3d
54, 60 (Pa.Super.2015) (Alleyne claim is challenge to legality of sentence;
petitioner could raise Alleyne in timely filed PCRA petition where his direct
appeal was still pending when Alleyne was decided).
Alleyne held that, other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
minimum must be submitted to a jury and proved beyond a reasonable
-3-
J-S47020-16
doubt. Id., 131 S.Ct. at 2160-61. Kamarer claims that his sentence is an
unconstitutional mandatory minimum sentence because the court imposed
sentence without a jury and under a preponderance of the evidence
standard.
The PCRA court lacked jurisdiction to review Kamarer’s Alleyne
argument under the PCRA’s one-year statute of limitations, 42 Pa.C.S. §
9545(b). Section 9545 provides that a 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); accord Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to
hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d
1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837
A.2d 1157, 1161 (Pa.2003)). 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). The court cannot excuse
the late filing of a PCRA petition unless the petitioner alleges and proves:
(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
-4-
J-S47020-16
(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). A petition invoking one or more of these
exceptions must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Kamarer’s judgment of sentence became final on August 4, 2009, his
last day to appeal to the United States Supreme Court. The statute of
limitations for filing a PCRA petition expired on August 4, 2010. The present
PCRA petition, filed on June 18, 2015, almost five years after expiration of
the statute, is untimely on its face.
Nor does any exception in section 9545(b)(1)(i-iii) apply to this case.
Kamarer does not allege that the government interference or newly acquired
evidence exceptions in subsections (b)(1)(i-ii) apply to his case. Subsection
(b)(1)(iii) does not apply, because neither the United States Supreme Court
nor the Pennsylvania Supreme Court has held that Alleyne applies
retroactively. See Commonwealth v. Miller, 102 A.3d 988, 995
(Pa.Super.2014) (Alleyne does not apply retroactively to untimely PCRA
petition).
For these reasons, the court properly dismissed Kamarer’s petition
seeking relief under Alleyne.
-5-
J-S47020-16
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2016
-6-