J-S75014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY LEWIS STROTHER
Appellant No. 1260 EDA 2016
Appeal from the PCRA Order March 4, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000971-2013
BEFORE: BOWES, MOULTON AND MUSMANNO JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 18, 2016
Anthony Lewis Strother appeals from the March 4, 2016 order denying
his PCRA petition as untimely. We affirm.
Appellant pled guilty to rape of an unconscious victim and sexual
assault on October 2, 2013, and was sentenced to six to twenty years
incarceration. The facts giving rise to the charges are gleaned from the
affidavit of probable cause of Detective Kevin Cornish of the Bensalem
Township Police Department. On December 2, 2011, a female reported to
police that at approximately 6:00 a.m., Appellant penetrated her sexually
while she was sleeping. When she realized what was happening, she
jumped up, alerted another resident of the apartment of what had occurred,
and went to the hospital.
J-S75014-16
Appellant was originally represented by the public defender’s office,
but due to a conflict of interest, outside counsel was appointed to assume
his defense on July 5, 2013. Counsel was unsuccessful in dismissing the
charges based on Pa.R.Crim.P. 600. Thereafter, on October 2, 2013,
following both a written and oral colloquy, Appellant pled guilty and was
sentenced to six to twenty years of imprisonment.1 He also was advised
that he would be required to register as a sex offender under SORNA, 42
Pa.C.S. § 9799, and the court ordered that he undergo a sexually violent
predator (“SVP”) assessment.
Appellant filed a pro se motion to reconsider the sentence. The Clerk
of Courts forwarded the motion to counsel and notified Appellant that it was
doing so. Counsel did not file a counseled motion or a direct appeal.
Following a hearing on January 24, 2014, Appellant was determined to be an
SVP.
Appellant filed the within pro se PCRA petition on December 3, 2015
challenging the legality of his sentence under Alleyne v. United States,
133 S.Ct. 2151 (2013). Stuart Wilder, Esquire, was appointed as counsel.
The Commonwealth filed a motion to dismiss Appellant’s petition as time
barred, since more than one year had elapsed since judgment of sentence
became final and Appellant had not alleged or offered proof of a valid
____________________________________________
1
The sentences merged on the two offenses.
-2-
J-S75014-16
statutory exception under 42 Pa.C.S. § 9542(b). On February 2, 2016, the
PCRA court issued Rule 907 notice of its intent to dismiss the petition as
untimely.
On February 11, 2016, Appellant filed a pro se objection to the
dismissal. On February 25, 2016, counsel filed a no-merit letter seeking
leave to withdraw as counsel pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) ("Turner/Finley"), addressing the issues Appellant
submitted in his pro se petition. Counsel represented therein that Alleyne
was decided prior to the expiration of the time for Appellant to file a timely
PCRA petition, and thus, he could not plead that it changed the law, citing
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). Counsel
represented that his review of the record did not reveal any further grounds
for relief due to the untimeliness of the petition. He forwarded a copy of his
no-merit letter and petition to Appellant. On March 4, 2016, the court
dismissed Appellant’s PCRA petition as untimely and granted counsel’s
request to withdraw.
Appellant timely filed the within pro se appeal raising one issue for our
review: “Did the trial Court err in not correcting an illegal sentence?”
-3-
J-S75014-16
Appellant’s brief at iii. Appellant claims that he was sentenced under a
mandatory minimum statute that is facially unconstitutional.2
Our "standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court's
determination and whether its decision is free of legal error."
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before
we may proceed to the merits of Appellant's contentions, however, we must
determine whether Appellant's PCRA petition was timely filed as that issue
implicates our jurisdiction. Miller, supra. If a PCRA petition is untimely,
"neither this Court nor the trial court has jurisdiction over the petition.” Id.
at 992 (citation omitted); see Commonwealth v. Chester, 895 A.2d 520,
522 (Pa. 2006).
Appellant’s judgment of sentence became final on November 1, 2013,
and, he had one year from that date to file a timely PCRA petition, or
November 1, 2014.3 Hence, the instant petition filed on December 3, 2015
____________________________________________
2
The record does not support Appellant’s contention that he was sentenced
to a mandatory minimum sentence that would be implicated by Alleyne v.
United States, 133 S.Ct. 2151 (2013).
3
In Commonwealth v. Schrader, 141 A.3d 558 (Pa.Super. 2016), this
Court recently held that judgment of sentence in a case in which defendant
pled guilty and waived a pre-sentence SVP determination does not become a
final and appealable judgment until after the SVP determination is made.
The record herein does not contain a waiver of a pre-sentence SVP
determination. However, even under Schrader, the within petition which
(Footnote Continued Next Page)
-4-
J-S75014-16
is facially untimely. We recognize that there are three exceptions to the
one-year time bar of § 9545:
(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). "Any petition invoking an exception provided
in paragraph (1) shall be filed within 60 days of the date the claim could
have been presented." 42 Pa.C.S. § 9545(b)(2). The petitioner has the
burden of pleading and proving that an exception is applicable.
Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).
Appellant has not pled or proved a timeliness exception. Moreover,
any attempt to rely upon Alleyne as the basis for the newly-recognized
constitutional right exception fails. Our Supreme Court recently held in
_______________________
(Footnote Continued)
was filed on December 3, 2015, is untimely. Appellant was determined to be
an SVP on January 24, 2014, and his judgment of sentence would have
become final thirty days later on February 23, 2014, when he did not file a
direct appeal. Thus, Appellant’s petition filed more than year after February
23, 2015, was untimely.
-5-
J-S75014-16
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), that Alleyne
does not apply retroactively to attacks upon mandatory minimum sentences
advanced on collateral review. Finally, Appellant’s contention that an illegal
sentence cannot be waived and is always subject to review was rejected by
our Supreme Court in Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (recognizing that although legality of sentence is subject to review
within the PCRA, the claim must first satisfy the PCRA's time limit or one of
the exceptions); see also Commonwealth v. Jackson, 30 A.3d 516
(Pa.Super. 2011).
Since Appellant’s PCRA petition was untimely filed, and no exception to
the time-bar was pled or proven, we affirm the trial court’s dismissal of
Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
-6-
J-S75014-16
-7-
Com. v. Strother, A.
Combined Opinion