J-S86004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT WILLIAM PINKNEY :
:
Appellant : No. 1091 WDA 2015
Appeal from the PCRA Order July 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012620-1996
BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 19, 2017
Vincent William Pinkney (“Appellant”) appeals from the order entered
in the Court of Common Pleas of Allegheny County dismissing as untimely
his fourth petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
On November 20, 1996, a jury found Appellant guilty of involuntary
manslaughter and robbery1 in connection with the fatal shooting of his
robbery victim. On January 17, 1997, the trial court incorporated a five-year
mandatory minimum sentence for the robbery conviction in imposing a six to
20 year sentence on the count, which ran consecutively to the one to five
year sentence for involuntary manslaughter to form an aggregate seven to
____________________________________________
1
18 Pa.C.s.A. §§ 2501 and 3701(a)(1)(i) or (ii), respectively.
*Former Justice specially assigned to the Superior Court.
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25 year sentence. This Court affirmed judgment of sentence on February 9,
1999, and the Pennsylvania Supreme Court denied allowance of appeal on
August 19, 1999.
Appellant filed a timely first petition on October 18, 1999, deemed
meritless by both the PCRA court and this Court on appeal. Appellant’s
second and third petitions, filed in 2003 and 2005, respectively, were each
deemed time-barred by the PCRA court. Appellant took no appeal from
either order.
On September 17, 2013, Appellant filed the present PCRA petition, his
fourth. On December 23, 2015, the PCRA court, again, declared it time-
barred and denied relief. This timely appeal followed.
Appellant presents one question for our review:
DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S PCRA
PETITION SINCE APPELLANT’S SIX YEAR MANDATORY MINIMUM
SENTENCE FOR ROBBERY WAS UNCONSTITUTIONAL, PURSUANT
TO ALLEYNE V. UNITED STATES, 133 S.CT. 2151 (2013) AND
COMMONWEALTH V. NEWMAN, 99 A.3d [86] (Pa.Super.
2014) [(en banc)], THE AFOREMENTIONED HOLDINGS SHOULD
BE RETROACTIVELY APPLIED, BUT, ARGUENDO, EVEN IF THOSE
HOLDINGS ARE NOT RETROACTIVE, NEWMAN AND OTHER
RECENT CASES HAVE HELD THAT 42 PA.C.S. § 9712(A) IS
FACIALLY UNCONSTITUTIONAL, FROM THE DATE OF ITS
ENACTMENT, AND THEREFORE APPELLANT MUST BE
RESENTENCED?
Appellant’s brief at 3.
Our standard of review of a PCRA court's dismissal of a PCRA petition
is limited to examining whether the PCRA court's determination is supported
by the record evidence and free of legal error. Commonwealth v. Wilson,
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824 A.2d 331, 333 (Pa.Super. 2003) (en banc). Before addressing the
merits of Appellant's claims, we must first determine whether we have
jurisdiction to entertain the underlying PCRA petition. See Commonwealth
v. Hackett, 598 Pa. 350, 956 A.2d 978, 983 (2008) (explaining that the
timeliness of a PCRA petition is a jurisdictional requisite).
The most recent amendments to the PCRA, effective January 19, 1996,
provide that 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. § 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 the
time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the PCRA’s timeliness provisions
allow for very limited circumstances under which we may excuse the late
filing of a petition. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or the law of this
Commonwealth or the Constitution or law 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 Pennsylvania after the time
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period provided in this section and has been held by that court
to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). “We emphasize that it is the petitioner
who bears the burden to allege and prove that one of the timeliness
exceptions applies.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947
A.2d 714, 719 (2008) (citations omitted).
Instantly, Appellant’s judgment of sentence became final on November
17, 1999, at the expiration of 90 days after the Supreme Court of
Pennsylvania denied his petition for allowance of appeal. See 42 Pa.C.S.A. §
9545(b)(3) (providing “a judgment becomes 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[ ]”). As such, Appellant had until November 17,
2000, to file a timely petition for post-conviction relief. The filing date of the
present PCRA petition, Appellant’s fourth, falls nearly 13 years after the one-
year deadline, making it patently untimely. Therefore, the PCRA court could
not address the merits of Appellant's petition unless a timeliness exception
applies.
Appellant argues his petition is not time-barred because the United
States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013)
created a “new rule” of substantive law “that an aggravating factor must be
proven beyond a reasonable doubt, and if not, a defendant is denied due
process of law.” Appellant’s brief at 12. As such, Appellant contends,
Alleyne must be applied retroactively to cases on collateral review.
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Appellant’s brief at 11-13. Appellant posits, moreover, that “issues relating
to Alleyne relate to the legality of a sentence, and therefore cannot be
defeated pursuant to the PCRA time-bar.” Appellant’s brief at 11. We
disagree.
Initially, it is well-settled that this Court’s jurisdiction over a PCRA
claim challenging the legality of sentence is subject to the timeliness
provisions of the PCRA:
As long as this Court has jurisdiction over a matter, a legality of
sentencing issue is reviewable and cannot be waived.
Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super.
2007). However, a legality of sentencing issue must be raised in
a timely filed PCRA petition. See 42 Pa.C.S.A. § 9545(b)(2);
Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 214, 223
(1999) (holding that “[a]lthough a 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”). Thus,
an appellant must present an illegal sentencing claim in a timely
PCRA petition over which this Court has jurisdiction. See Fahy
supra, and Commonwealth v. Miller, 102 A.3d 988, 994
(Pa.Super. 2014) (observing Alleyne does not invalidate a
mandatory minimum sentence challenged in an untimely PCRA
petition).
Commonwealth v. Whitehawk, 146 A.3d 266, 270-71 (Pa.Super. 2016).
Furthermore, in a recent en banc decision, this Court addressed the
very issues and corresponding authority raised in the present appeal and
clarified that Alleyne applies only to cases pending on direct appeal as of
the date of the decision:
In Alleyne, the United States Supreme Court held “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a
reasonable doubt.” Alleyne, 133 S.Ct. at 2155. In applying
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that mandate, an en banc panel of this Court, in
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en
banc), appeal denied, ––– Pa. ––––, 121 A.3d 496 (2015),
held that Alleyne rendered the mandatory minimum sentencing
provision at 42 Pa.C.S. § 9712.1—the same provision applied
herein—unconstitutional. Section 9712.1, which provides for a
five-year mandatory minimum prison term for PWID convictions
when a firearm is in close proximity to the illegal drugs, includes
a provision that permits the trial court to determine at
sentencing whether the elements necessary to increase the
mandatory minimum sentence were proven by a preponderance
of the evidence. See 42 Pa.C.S. § 9712.1(c). The Newman
Court held that, under Alleyne, Section 9712.1 “can no longer
pass constitutional muster [because] [i]t permits the trial court,
as opposed to the jury, to increase a defendant's minimum
sentence based upon a preponderance of the evidence”
standard. Newman, supra, 99 A.3d at 98.
Further, the Newman Court found the unconstitutional
provisions in Section 9712.1 were not severable from the statute
as a whole. See id. at 101 (“We find Subsections (a) and (c) of
Section 9712.1 are essentially and inseparably connected.”).
Recently, the Pennsylvania Supreme Court in Commonwealth
v. Hopkins, ––– Pa. ––––, 117 A.3d 247 (2015), applied the
same reasoning when it determined that another mandatory
minimum sentencing statute, 18 Pa.C.S. § 6317, was
unconstitutional under Alleyne. The Supreme Court opined:
In conclusion, we hold ... that numerous provisions
of Section 6317 are constitutionally infirm under
Alleyne. Moreover, the remaining provisions of
Section 6317, standing alone, are incomplete and
are incapable of being vindicated in accord with the
intent of the General Assembly. 1 Pa.C.S. § 1925.
Because of the significant provisions found to violate
the Constitution, which clearly express the intent of
the legislature that Section 6317 is a mandatory
minimum sentencing statute, and not a substantive
offense, we find the remaining unoffending
provisions of Section 6317 are incapable of being
severed, and we will not judicially usurp the
legislative function and rewrite Section 6317 or
create a substantive offense which the General
Assembly clearly did not desire. Rather, we leave it
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to our sister branch for an appropriate statutory
response to the United States Supreme Court's
decision in Alleyne.
Id. at 262 (footnote omitted).
We note the Newman Court instructed that Alleyne applies
only to cases pending on direct appeal as of June 27, 2013, the
date of the Alleyne decision. See Newman, 99 A.3d at 90.
It is also settled that Alleyne does not invalidate a mandatory
minimum sentence when presented in an untimely PCRA
petition. See Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014). In concluding Alleyne does not satisfy the
new retroactive constitutional right exception to the PCRA's one
year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Miller Court
explained:
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. This is fatal to Appellant's argument regarding
the PCRA time-bar. This Court has recognized that a
new rule of constitutional law is applied retroactively
to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.
Id. at 995 (citations omitted) (emphasis supplied).
Furthermore, this Court also recently declined to give Alleyne
retroactive effect to cases on timely collateral review when the
defendant's judgment of sentence was finalized before Alleyne
was decided. See Commonwealth v. Riggle, 119 A.3d 1058
(Pa.Super. 2015).
Commonwealth v. Ruiz, 131 A.3d 54, 57–58 (Pa.Super. 2015) (en banc)
(emphasis in original).
Contrary to Appellant’s assertions, therefore, it is clear he gains no
relief from Alleyne and Newman because his judgment of sentence
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became final prior to the date of the Alleyne decision. Moreover, this
Court’s holding in Miller clarified that a petitioner may not vindicate Alleyne
rights through an untimely PCRA petition. For these reasons, Appellant’s
argument fails.
Therefore, the PCRA court lacked jurisdiction to consider the merits of
Appellant's illegality of sentence claim couched, as it was, within an untimely
serial PCRA petition. Accordingly, we affirm the PCRA court's order invoking
the statutory time-bar and denying collateral relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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Com. v. Pinkney, V.
Combined Opinion