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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DWAYNE HARRIS
Appellant No. 3638 EDA 2015
Appeal from the PCRA Order November 3, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0603681-2005
BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED MAY 23, 2017
Dwayne Harris appeals pro se1 from the order entered November 3,
2015, in the Court of Common Pleas of Philadelphia County, that dismissed
as untimely his first petition filed pursuant to the Pennsylvania Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Harris seeks relief
from the judgment of sentence of an aggregate term of 20 to 40 years’
imprisonment, followed by 15 years’ probation.2 Based upon the following,
we affirm.
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*
Former Justice specially assigned to the Superior Court.
1
As will be more fully discussed below, the PCRA court vacated PCRA
counsel’s appointment after counsel filed a no-merit letter and a motion to
withdraw from representation.
2
The trial court, following a Megan’s Law hearing, determined Harris was a
sexually violent predator (SVP).
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On September 29, 2005, Harris entered an open guilty plea to charges
of rape, involuntary deviate sexual intercourse (IDSI), incest, and corruption
of minors.3 Sentencing followed on June 22, 2007, and no direct appeal was
filed. Over seven and one-half years later, on February 18, 2015, Harris
filed this first PCRA petition pro se, asserting he was “challenging the legality
of his sentence pursuant to a New Constitutional Rule,” and further stating,
“[t]he mandatory minimum statute that the Petitioner has been sentenced to
has been struck down as facially unconstitutional.” Harris’s PCRA Petition,
2/18/2015, at 9, citing, inter alia, Alleyne v. United States, 133 S. Ct.
2151 (2013),4 and Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
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3
See 18 Pa.C.S. §§ 3121(1), 3123(a)(1), 4302, and 6301(a), respectively.
4
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, supra, 133 S. Ct.
at 2155. Subsequently, in Commonwealth v. Newman, 99 A.3d 86, 90
(Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015), this
Court noted that Alleyne will be applied to cases pending on direct appeal
as of June 27, 2013, the date of the Alleyne decision.
“The effect [of Alleyne] was to invalidate a range of Pennsylvania
sentencing statutes predicating mandatory minimum penalties upon non-
elemental facts and requiring such facts to be determined by a
preponderance of the evidence at sentencing.” Commonwealth v.
Washington, 142 A.3d 810, 812 (Pa. 2016).
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2014) (invalidating 42 Pa.C.S. § 9718 (“Sentences for offenses against
infant persons”) as unconstitutional).5
Counsel was appointed, and subsequently filed a petition to withdraw,
together with a no-merit letter.6 The no-merit letter advised that the
petition was untimely and no exception to the PCRA’s statutory time-bar
applied in this case. See No-Merit Letter, 8/5/2015, at 1. The no-merit
letter further advised that even if the petition was timely, Harris was not
sentenced under any unconstitutional mandatory sentencing provision. See
id. at 3.
On October 1, 2015, the PCRA court issued notice of intent to dismiss
the petition pursuant to Pa.R.Crim.P. 907, and permitted Harris 20 days to
respond to the proposed dismissal. Harris filed a timely response to the
PCRA court’s Rule 907 notice on October 19, 2015.7 Thereafter, on
November 3, 2015, the PCRA court issued a final order that dismissed
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5
On June 20, 2016, the Pennsylvania Supreme Court affirmed this Court’s
decision in Wolfe. See Commonwealth v. Wolfe, 140 A.3d 651 (Pa.
2016).
6
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
7
Harris’s Rule 907 response was mailed from prison in an envelope post-
marked October 19, 2015. According to the “prisoner mailbox rule,” a
document will be deemed filed on the date that the appellant deposits the
appeal with prison authorities and/or places it in the prison mailbox. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).
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Harris’s pro se petition without a hearing, and vacated PCRA counsel’s
appointment. See Order, 11/3/2015. This appeal followed.8
Harris contends that he is serving a mandatory minimum sentence
imposed pursuant to 42 Pa.C.S. § 9718, and that the sentence is illegal in
light of Alleyne and Wolfe. See Harris’s Brief at 11. The court’s
sentencing order, however, attaches a form that indicates the sentence
imposed was not a mandatory sentence. See Court Commitment, attached
to Sentencing Order, 6/22/2007 (Docket #2).9 In any event, for the reasons
set forth below, even if Harris did receive a mandatory minimum sentence
pursuant to Section 9718, he would not be entitled to PCRA relief.
Preliminarily, we state our standard of review:
“In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination ‘is supported by the record and free
of legal error.’” Commonwealth v. Taylor, 620 Pa. 429, 67
A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).
Commonwealth v. Mitchell, 141 A.3d 1277, 1283-1284 (Pa. 2016).
“It is well-settled that the PCRA’s time restrictions are jurisdictional in
nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A
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8
On December 4, 2015, the PCRA court issued an order for Harris to file a
Pa.R.A.P. 1925(b) statement within 21 days of the court’s order. Harris
complied by filing a Rule 1925(b) statement, which was entered on the
docket on December 18, 2015.
9
The notes of testimony of the sentencing hearing are not included in the
certified record.
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PCRA petition must be filed within one year of the date the judgment of
sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “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.” 42 Pa.C.S. § 9545(b)(3).
There are three statutory exceptions to the PCRA’s timeliness
provisions that allow for limited circumstances under which an otherwise
untimely PCRA petition may be reviewed. 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 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). Furthermore, a petitioner invoking a
timeliness exception must file a petition within 60 days of the date the claim
could have been presented. 42 Pa.C.S. § 9545(b)(2).
Here, Harris was sentenced on June 22, 2007, and because no appeal
was filed, his judgment of sentence became final on Monday, July 23, 2007,
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following the expiration of the 30-day appeal period. See 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 903(a). See also 1 Pa.C.S. § 1908 (“Computation of
time”). Therefore, applying the PCRA’s one year time limitation, Harris had
until July 23, 2008, to file a timely PCRA petition. See 42 Pa.C.S. §
9545(b)(1). However, because Harris filed this first PCRA petition on
February 18, 2015, it is patently untimely. See 42 Pa.C.S. § 9545(b)(1).
In this regard, it is important to note that “although illegal sentencing
issues cannot be waived, they still must be presented in a timely PCRA
petition.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).
Accordingly, in this case, there is no jurisdiction to review the present
petition unless a timeliness exception applies. See 42 Pa.C.S. 9545(b)(1)(i)-
(iii). The PCRA court determined no timeliness exception applied, and we
agree.
Harris’s assertion that his sentence is illegal in light of the United
States Supreme Court’s decision in Alleyne invokes the PCRA’s statutory
exception for a newly recognized constitutional right that has been held to
apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(iii), supra. However, the
Pennsylvania Supreme Court, in Commonwealth v. Washington, 142 A.3d
810 (Pa. 2016), held that the new constitutional rule announced in Alleyne
— decided by the United States Supreme Court on June 17, 2013 — is not a
new substantive or watershed procedural rule that warrants retroactive
application to cases on collateral review where the petitioner’s judgment of
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sentence had already become final before Alleyne was decided. Accord
Commonwealth v. Ciccone, 152 A.3d 1004 (Pa. Super. 2016) (en banc).
Moreover, to date, there is no United States Supreme Court decision holding
that Alleyne applies retroactively to untimely PCRA petitions. As such,
Harris’s claim does not satisfy the “new constitutional right” exception based
upon Alleyne. Furthermore, in this regard, Harris’s reliance on Wolfe is
misplaced as Wolfe did not announce a new constitutional right, but rather
applied Alleyne in a direct appeal.10
Even had Harris’s claim based on Alleyne satisfied Section
9545(b)(1)(iii), Harris still would not be entitled to PCRA relief since he
failed to file his petition within 60 days of the Alleyne decision. See 42
Pa.C.S. § 9545(b)(2) (requiring petition invoking timeliness exception to be
filed within 60 days of the date the claim could have been presented)
Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (“the
sixty-day period begins to run upon the date of the underlying judicial
decision”). Although Harris asserts he filed his petition within 60 days of this
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10
In Wolfe, it was after the defendant’s trial and prior to his October 1,
2013, sentencing that the Supreme Court of the United States issued its
Alleyne decision. On appeal, this Court applied Alleyne and held that
mandatory minimum sentences imposed pursuant to 42 Pa.C.S. § 9718 were
illegal. See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014),
affirmed, 140 A.3d 651 (Pa. 2016).
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Court’s decision in Wolfe, we have already explained that Wolfe did not
announce a new constitutional right.
In sum, we conclude the PCRA court correctly determined it lacked
jurisdiction to consider the merits of Harris’s PCRA petition and properly
dismissed it as untimely filed. Accordingly, we affirm.11
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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11
Harris also states in his brief that he “challenges the (SVP) provision
under Megan’s Law, that statute that was used to sentence him is
unconstitutional.” Harris’s Brief at 17, citing Commonwealth v. Williams,
733 A.2d 593 (Pa. 1999). Harris raised this issue in his response to the
PCRA Court’s Rule 907 notice. See Harris’s Notice of Objection and
Response to the Notice of Intent to Dismiss PCRA [Petition], 11/12/2015, at
3 ¶14. This claim, however, does not implicate any statutory exception to
the PCRA’s time bar, and no further discussion of this issue is warranted.
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