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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FRANK LEE
Appellant No. 3023 EDA 2016
Appeal from the PCRA Order August 23, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0206981-1983
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 19, 2017
Frank Lee appeals pro se and nunc pro tunc from the trial court’s order
reinstating his collateral appeal rights and denying all other claims raised in
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. § 9541-9545. After careful review, we affirm.
On January 6, 1984, Lee was convicted by a jury of two counts each of
rape and robbery, and one count of possessing an instrument of crime (PIC)
and related offenses. The charges stemmed from Lee and two co-
defendants brutally raping and robbing two women at gunpoint in 1982. The
trial court sentenced Lee to an aggregate term of 25-50 years’
imprisonment. Lee filed post-sentence motions and a direct appeal that
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*
Retired Senior Judge assigned to the Superior Court.
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were both denied. Over the ensuing years, Lee has filed several PCRA
petitions and collateral appeals. In April 2010, Lee wrote to the court
inquiring about the status of a PCRA petition he had filed in 2008. On April
14, 2010, the court replied to his letter, indicating that it had denied the
2008 petition on November 21, 2008 and that:
If [he] did not receive a copy of the Judge[’]s order of
dismissal/denial [he] must write directly to that Judge for a
copy of the order . . . [and i]f [his] case was concluded more
than thirty (30) days ago and [he] wish[es] to file an appeal of
the decision[, he] must be granted reinstatement of [his]
appellate rights from that judge.
Post-Trial Unit Letter, 4/14/10. On October 16, 2014, Lee filed a “Motion for
Post-Conviction Relief and/or Request for Alternative relief Under the Writ of
Habeas Corpus pursuant to 42 Pa.C.S. § 6501, et seq.” In that motion Lee
claimed that application of a mandatory minimum statute rendered his
sentence illegal. In response to that motion, on August 23, 2016, the trial
court reinstated Lee’s collateral appeal rights nunc pro tunc and denied all
other PCRA claims. This appeal follows, in which Lee presents the following
issue for our consideration: Did the trial court judge abuse his discretion by
applying 42 Pa.C.S. § 9712 to [Lee’s] sentence?
Our standard of review is well established. “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, 67 A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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Instantly, the PCRA court determined that Lee’s petition was untimely
filed. The PCRA requires that any petition must be filed within one year of
the date the judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A
judgment becomes final at the conclusion of direct review . . . or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
Moreover, 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 (Pa. Super. 2013) (emphasis
added).
Lee was sentenced on December 12, 1984, and our Court affirmed his
judgment of sentence on April 9, 1987. Accordingly, Lee’s judgment of
sentence became final after the time expired for him to file a petition for
allowance of appeal with the Pennsylvania Supreme Court, or on May 9,
1987. See Pa.R.A.P. 1113. Thus, Lee had one year from that date, or until
May 9, 1988, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).
He did not file the instant petition until April 26, 2007,1 more than ten years
late. Accordingly, the PCRA court had no jurisdiction to entertain Lee’s
petition unless he established one of the exceptions to the jurisdictional time
bar.
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1
The court specifically granted a collateral appeal nunc pro tunc
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A PCRA court will entertain an otherwise untimely petition if the
petitioner pleads and proves that: (1) the failure to raise a timely claim was
the result of interference by government officials; (2) 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 (3) the right asserted
is a constitutional right that has been recognized by the United States
Supreme Court or the Supreme Court of Pennsylvania after the one-year
time period, and has been held to apply retroactively.2 42 Pa.C.S. §
9545(b)(1)(i), (ii), and (iii). Any petition invoking one of these exceptions
must be filed within 60 days of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).
Lee contends that he was sentenced under an unconstitutional
mandatory minimum statute, 42 Pa.C.S. § 9712(a), and that his sentence
should be vacated as illegal pursuant to Alleyne v. United States, 133 S.
Ct. 2151 (2013). In Alleyne, the Court held that an element of an offense
that increased the mandatory minimum sentence must be found by a jury
beyond a reasonable doubt. 133 S. Ct. at 2155.
In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),
our Court held that the section 9712(a)’s mandatory minimum sentencing
provision, relating to possession of a weapon during a crime of violence, was
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2
Lee’s PCRA petition references the after-recognized constitutional right
exception to the PCRA timing requirements in 42 Pa.C.S. § 9545(b)(1)(iii).
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unconstitutional under Alleyne. However, in Commonwealth v.
Washington, 142 A.3d 810 (Pa. 2016), the Supreme Court of Pennsylvania
held that although Alleyne establishes a new rule of federal constitutional
law, it does not apply retroactively to cases pending on collateral review.
Id. at 820. Moreover, pursuant to Commonwealth v. Riggle, 119 A.3d
1058, 1064 (Pa. Super. 2015), Alleyne does not meet the new
constitutional right exception to the PCRA time bar and, as such, Alleyne
will only be applied to cases pending on direct appeal when Alleyne was
issued. Here, Alleyne was issued twenty-eight years after Lee’s sentence
could have been directly appealed. Accordingly, Lee is not entitled to relief;
the trial court lacked jurisdiction to consider his petition and properly
dismissed it as untimely. Taylor, supra.
Order affirmed.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
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3
To the extent that Lee raises additional grounds in his appellate brief that
were not included in his petition, they have either been waived, previously
litigated or are not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(2),
(3).
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