J-S64019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER SINGLETARY
Appellant No. 382 EDA 2016
Appeal from the PCRA Order January 7, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0729881-1993
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 05, 2016
Appellant, Christopher Singletary, appeals pro se from the order
denying his fifth petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court denied relief on the
basis that Appellant’s petition was untimely, and therefore not within its
jurisdiction. Upon review, we affirm.
On April 4, 1994, a jury convicted Appellant of robbery, burglary,
conspiracy, and violation of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-
6126. On February 7, 1995, the trial court sentenced Appellant to an
aggregate 47½ to 95 years’ incarceration. In imposing the sentence, the
trial court relied in part on the mandatory minimum sentence prescribed for
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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firearms violations in the Sentencing Code, 42 Pa. C.S. § 9712(a). The
PCRA court summarized the subsequent procedural history as follows:
On January 19, 1996, following a direct appeal, the
Superior Court affirmed the judgment of sentence.
[Appellant] did not seek an allowance of appeal in
the Pennsylvania Supreme Court.
On September 13, 1996, [Appellant] filed his first
timely pro se PCRA petition and counsel was
appointed. On September 3, 1998, the PCRA court
denied his petition. On March 31, 2000, the Superior
Court affirmed the denial of relief. The Pennsylvania
Supreme Court denied allocatur on July 25, 2000.
Over the next twelve years, [Appellant] submitted
three additional petitions for collateral relief, all of
which were denied as meritless or untimely. On July
30, 2015, [Appellant] filed the instant pro se PCRA
petition, his fifth. Pursuant to Pennsylvania Rule of
Criminal Procedure 907, [Appellant] was served
notice of the lower court’s intention to dismiss his
petition on November 24, 2015. On January 7,
2016, the PCRA court dismissed his petition as
untimely. On January 29, 2016, the instant notice of
appeal was timely filed to the Superior Court.
PCRA Court Opinion, 2/23/16, at 1-2 (footnotes omitted).
In his current petition, his fifth, Appellant argues that his sentence
pursuant to the mandatory minimum requirements in Section 9712 of the
Sentencing Code was unconstitutional and “illegal.” The PCRA court
dismissed Appellant’s petition on the ground that it was untimely and outside
of the enumerated statutory exceptions to the PCRA’s jurisdictional time bar.
Id. at 2.
On appeal, Appellant presents the following issue:
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AS THE PENNSYLVANIA SUPERIOR AND SUPREME
COURTS HAVE FOUND SECTION 9712 TO BE
FACIALLY UNCONSTITUTIONAL IN ITS ENTIRETY, IS
THE APPELLANT ENTITLED TO RELIEF FROM HIS
ILLEGAL SENTENCE AS THE STATUTE HAS BEEN
UNCONSTITUTIONAL FROM THE DATE OF ITS
PASSAGE AND INEFFECTIVE FOR ANY PURPOSE?
Appellant’s Brief at 5.
In Alleyne v. United States, 133 S.Ct. 2151 (2013), the U.S.
Supreme Court held that any fact that increases a mandatory minimum
sentence for a crime is an element of the crime that must be proven before
a jury beyond a reasonable doubt. Appellant observes that several decisions
by the Supreme Court of Pennsylvania and this Court have held that various
provisions of Pennsylvania’s mandatory minimum sentence statutes are
unconstitutional in light of Alleyne. See Appellant’s Brief at 9-11, citing
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), and
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). He
argues that in light of these decisions, his sentence is now illegal and void ab
initio and must be vacated. Appellant’s Brief at 6, 10.
Our review of the PCRA court’s order dismissing Appellant’s claim is
limited to ascertaining whether the record supports the determination of the
PCRA court and whether that court’s ruling is free of legal error.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We defer to
the factual findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id. The PCRA court has discretion to
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dismiss a petition without a hearing when the court is satisfied that no
genuine issues of material fact have been raised, no legitimate purpose
would be served by further proceedings, and the petitioner is not entitled on
the merits to post-conviction relief. Pa.R.Crim.P. 909(B)(2). Where the
PCRA court denies a petition without a hearing, we “must examine the issues
raised in the PCRA petition in light of the record in order to determine
whether the PCRA court erred in concluding there were no genuine issues of
material fact and in denying relief without an evidentiary hearing.”
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).
The PCRA court dismissed Appellant’s petition as untimely. 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 three exceptions to the time
limitations for filing the petition set forth in Section 9545(b)(1) of the
statute.1 42 Pa.C.S. § 9545(b). A PCRA petition invoking one of these
____________________________________________
1
The three exceptions to the timeliness requirement are:
(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.
(Footnote Continued Next Page)
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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).
Upon review, we conclude that the Honorable Jeffrey P. Minehart,
sitting as the PCRA court, ably addressed the untimeliness of Appellant’s
PCRA petition. See PCRA Court Opinion, 2/23/16, at 1-4. His opinion
explained the well-settled legal principle that neither claims challenging
sentence legality nor the finding that a statute is unconstitutional can negate
the PCRA’s jurisdictional time restrictions. Id. at 4 (citing Commonwealth
v. Grafton, 928 A.2d 1112 (Pa. Super. 2007); see also Commonwealth v.
Fahy, 737 A.2d 214 (Pa. 1999). His opinion holds that Appellant’s “failure
to plead specifically the applicability of any of the exceptions to the time
_______________________
(Footnote Continued)
(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).
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requirements of the PCRA was fatal to his petition.” PCRA Court Opinion at
4. We agree, and we adopt the PCRA court’s February 23, 2016 opinion with
regard to the timeliness issue.
Appellant insists that he should be entitled to relief regardless of
whether or not his petition was timely under the PCRA. In his brief, he
recognizes that constitutional arguments based on Alleyne could be
presented as an exception to the PCRA’s time bar only if Alleyne had been
held by the Supreme Court to apply retroactively to cases on collateral
review, see 42 Pa.C.S. § 9545(b)(1)(iii), and that Alleyne has been held
not to apply retroactively. Appellant’s Brief at 10; see also
Commonwealth v. Washington, No. 37 EAP 2015, 2016 WL 3909088, at
*8 (Pa. July 19, 2016) (confirming that Alleyne does not apply retroactively
to cases on collateral review). Appellant emphasizes that he “is not arguing
this issue.” Appellant’s Brief at 10. Rather, he argues that the invalidity of
the mandatory minimum sentencing statutes under Alleyne makes such
statutes “illegal” and “a nullity” and that this illegality dates back to the
dates of the statutes’ enactment. This defect, he claims, “renders any time
bar null and void as the statute is, in its entirety, void ab initio.” Id. at 10-
11.
As the PCRA court held, Appellant’s argument has “erroneously
conflated the validity of [the] mandatory minimum statute . . . with that of
the PCRA time bar.” PCRA Court Op. at 4. The Post Conviction Relief Act
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makes clear that compliance with the time limits set forth in that Act is a
jurisdictional prerequisite to bringing a claim. There is no exception to the
Act’s time limits for claims asserting that a sentence was “illegal.”2 Rather,
as the Supreme Court explained in Commonwealth v. Fahy, 737 A.2d at
223, “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.” Appellant’s failure to file his claim within those time
limits therefore deprived the PCRA court of jurisdiction to hear his claim.
In sum, the PCRA court correctly concluded that it lacked jurisdiction
to consider Appellant’s untimely PCRA petition, and we affirm its order in this
regard. In the event of further proceedings in this matter, the parties shall
attach a copy of the PCRA court’s February 23, 2016 opinion, as well as this
memorandum.
Order affirmed.
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2
We add that Appellant is mistaken in his contention that his sentence
pursuant to the mandatory minimum sentencing statute was “illegal.” As
the Supreme Court of Pennsylvania recently explained, the sentence would
be “illegal” only if Alleyne applied retroactively to the statute at the time of
Appellant’s sentencing. Because Alleyne does not apply retroactively, this
is not the case. Commonwealth v. Washington, 2016 WL 3909088, at 3-
4.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2016
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Circulated 09/09/2016 04:13 PM
. '
IN THE COURT OF CO:M:M:ON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMJNAL TRIAL DIVISION
COJ:v1MONWEALTH OF
PENNSYLVANIA CP-51-CR-0729881-1993
vs. FILED
FEB 2· S .2Q16
CHRISTOPHER SINGLETARY, Criminal ARpeals Unit
Petitioner First Judicial District of PA
OPINION
MINEHART,J
The lower court dismissed the Post-Conviction Relief Act ("PCRA") petition filed on July 30~
2015, for the reasons set forth below.1
PROCEDURAL IIlSTORY
On April 4, 1994, following a jury trial, Petitioner was convicted of robbery (3 counts), burglary,
conspiracy, and violation of the Uniform Firearms Act. On February 7, 1995, Petitioner was sentencedto
an aggregate term of forty-seven and one half to ninety-five years' imprisonl'nent. On January 19, 1996,
following a direct appeal, the Superior Court affirmed the judgment of sentence.2 Petitioner did not seek
an allowance of appeal in the Penns~lvania Supreme Court.
· On September 13, 1996, Petitioner filed his first timely pro se PCRA petition and counsel was
appointed. On September 3, 1998, the PCRA,courtdenied his petition. On March 31, 2000,'the Superior
Court affirmed the denial of relief.3 The Pennsylvania Supreme Court denied allocatur on July 25, 2000.4
I
The Order was issued more than twenty days after Petitioner was served with notice of the forthcoming dismissal
of hisPost Conviction Relief Act petition, Pa.RiCrim.P. 907. ·
2
Commonwealth v. Singletary, 676 A.2d 286 (Pa. Super. l 996)(unpublished memorandum).
3
Commonwealth v. Singletary, 757 A.2d 997 (Pa. Super. 2000)(unpublished memorandum).
4 Commonwealth v. Singletary, 759 A.2d 922 (Pa. 2000). . ·· ·:· · · , ·. ···· _ ·
. CP-!i1-CIH>n9BB1·1ij93 Corrm. v. S,igletary, Chrlstophe · ·
• Me~r11ndum Opollon
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1111 IHII II 11111
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Over the next twelve years, Petitioner submitted three additional petitions for collateral relief, all
of which were denied as meritless or untimely. On July 30, 2015, Petitioner filed the instant prose PCRA
petition, his fifth. Pursuant to Pennsylvania Rule of Criminal Procedure 907, Petitioner was served notice.
of the lower court's intention to dismiss his petition on November 21J, 2015. On January 7, 2016, the
PCRA court dismissed his petition as untimely. On January 29, 2016, the instant notice of appeal was·
timely filed to .the Superior Court.
DISCUSSION
Petitioner's current PCRA petition was untimely filed and none of the exceptions to the time-bar
are applicable. As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Robinson, 12 A.3d 477 (Pa. Super. 2011). A PCRA petition, including a second or
subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9S45(b)(l). A judgment is deemed 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.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in. the PCRA allow for very limited
circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(l). To
invoke an exception, a petition must allege and the petitioner must prove:
(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.A. § 9545(b)(l)(i)-(iii). Subsection 9545(b)(1)(iii) is the newly-recognized, and retroactively-
applied, constitutional fight exception.
2
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Subsection (iii) of Section 9545[(b)(l)] has two requirements. First, 'it provides that 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 provided in this section. Second, it provides
that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner must prove
. that there is a "new" constitutional right.and that the rightv'has been held" by that court to apply
retroactively. The language "has been held" is in the past tense. These words mean that the action
has already occurred, i.e., "that court" has already held the new constitutional right to be
retroactive to cases on collateral review. By employing the past tense in writing this provision, the
legislature clearly intended that the right was already recognized at the time the petition was filed.
Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007) (quoting Commonwealth v.
Abdul-Salaam, 812A.2d 497, 501 (Pa. 2002)). ·
Additionally, a PCRA petitioner must present his claimed exception within sixty days of the date
the claim first could have been presented. 42 PaC.S.A. § 9545(b)(2). "As such, when a PCRA petition is
not filed within one year of the expiration of direct review, or not eligible for one of the three limited ·
exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim
could have been first brought, the PCRA court has no power to address the substantive merits of a
petitioner's PCRA claims." Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa 2000).
Petitioner's instant petition challenged the legality of his sentence in light of Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014). Petitioner's judgment of sentence became final for PCRA
purposed on February 18, 1996, thirty days after the Superior Court affirmed the judgment of sentence.
His current petition, filed on July 30, 2015 was therefore untimely .by approximately eighteen years.
Rather than complying with 42 Pa.C.S.A. § 9545(b)(l), Petitioner repudiated his obligation to establish
timeliness, arguing that the time-bar is .inapplicable due to the illegality of his sentence.5 See 907
5
It is readily apparent that the only exception to the time requirements of the Actthat could conceivably apply is
the exception enumerated at§ 9545(b)(l)(iii), which Petitioner explicitly disavowed. See PCRA petition, 7/30/15,
at 6. Nonetheless, his petition referencing Alleyne was deficient in two distinct, but equally fatal ways. Firstly, his
petition failed to invoke the exception within sixty days of the date the claim could have been presented, namely
June 17, 2013, the date the United States Supreme Court decided Alleyne. His petition was not filed until 2015,
well beyond the sixty-day mandate. Secondly, in the recent decision Commonwealth v. Miller, 102 A.3d 988, 995
(Pa. Super. 2014), 'the Superior Court concluded that "even assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor the United States Supreme Court has held that Alleyne is to be
applied retroactively to cases in which the judgment of sentence had become final."
3
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•· response, 12/10/15 at 2. Petitioner's argument erroneously conflated the validity of mandatory minimum
statute 42 Pa.C.S.A. § 9712.1 with that ofthe PCRA time-bar, Furthermore, a claim of sentence illegality
is not an exception to the PCRA court's timeliness requirement. Commonwealth v. Pate, 2014 WL
10790083, at *1 (Pa Super. 2014) (citing Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa. Super.
· 2007)("even claims that a sentence is illegal ... are not beyond the jurisdictional time restrictions.t'j).
Petitioner's failure to plead specifically the applicability of any of the exceptions to the time requirements
of the PCRA was fatal to his petition. Accordingly, for the reasons stated herein, it is suggested that the
decision of the court dismissing the PCRA petition be affirmed.
BY1HE
HQN. JEFFREY;P . INEHAR T
4
Com. v. Singletary, C.
Combined Opinion