stating that, to demonstrate the applicability of section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’ constitutional right and that the right ‘has been held’ by that court to apply retroactively”
How later courts described this case
- stating that, to demonstrate the applicability of section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’ constitutional right and that the right ‘has been held’ by that court to apply retroactively”
Written by the judges who cited it.
The opinion
J-S41031-16
2016 PA Super 106
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL T. ROSS,
Appellant No. 2715 EDA 2015
Appeal from the PCRA Order August 17, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003055-1996
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 23, 2016
Appellant Samuel T. Ross appeals pro se from the order entered in the
Court of Common Pleas of Montgomery County dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. The PCRA court dismissed the petition without a hearing on the basis
it was untimely filed. We affirm.
On January 21, 1997, Appellant entered an open guilty plea to, inter
alia, third-degree murder,1 and on May 19, 1997, he was sentenced to a
term of 30 to 60 years in prison. Appellant filed a timely direct appeal, and
this Court affirmed his judgment of sentence on January 20, 1998.
Commonwealth v. Ross, No. 02823 PHL 97 (Pa.Super. filed 1/20/98)
____________________________________________
1
18 Pa.C.S.A. § 2502(c).
*Former Justice specially assigned to the Superior Court.
J-S41031-16
(unpublished memorandum). Appellant did not file a petition for allowance
of appeal with our Supreme Court.
Appellant filed a timely, first PCRA petition, which was denied without
a hearing on February 17, 1999. Thereafter, he filed numerous PCRA
petitions, all of which have been dismissed as untimely. On November 5,
2013, Appellant filed the instant PCRA petition,2 and thereafter, he filed
several supplemental petitions. The PCRA court provided notice of its intent
to dismiss the petition without a hearing, and by order entered on August
17, 2015, the PCRA court dismissed the petition on the basis it was untimely
filed. This timely appeal followed.
Preliminarily, we must determine whether Appellant’s instant PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is
clear; we are limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and
quotation marks omitted).
____________________________________________
2
Although Appellant’s pro se PCRA petition was docketed on November 8,
2013, the prison envelope in which Appellant’s petition was mailed bears a
time stamp of November 5, 2013. Accordingly, pursuant to the prisoner
mailbox rule, we deem Appellant’s instant PCRA petition to have been filed
on November 5, 2013. See Commonwealth v. Patterson, 931 A.2d 710
(Pa.Super. 2007) (discussing the prisoner mailbox rule).
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Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500,
837 A.2d 1157 (2003). 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 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 the time for seeking 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)(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 period provide in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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“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) (citation
omitted). Moreover, as this Court has often explained, all of the time-bar
exceptions are subject to a separate deadline. Our Supreme Court has held
that any petition invoking an exception must show due diligence insofar as
the petition must be filed within 60 days of the date the claim could have
first been presented. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d
339 (2013).
Here, Appellant’s sentence became final on February 19, 1998, when
the time for filing a petition for allowance of appeal to the Pennsylvania
Supreme Court expired. See Pa.R.A.P. 1113 (“[A] petition for allowance of
appeal shall be filed with the Prothonotary of the Supreme Court within 30
days after the entry of the order of the Superior Court[.]”). Therefore, he
had until February 19, 1999, to file a timely PCRA petition. The instant
petition was not filed until November 5, 2013, and therefore, the petition is
facially untimely. See 42 Pa.C.S.A. § 9545(b)(1).
This does not end our inquiry, however, as Appellant asserts that he
qualifies for a timeliness exception under 42 Pa.C.S.A. § 9545(b)(1)(iii),
based on a newly-recognized constitutional right that should be applied
retroactively to his case on collateral review. Specifically, Appellant points
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J-S41031-16
to the United States Supreme Court’s recent ruling in Peugh v. United
States, ___ U.S. ___, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013).
In Peugh, the U.S. Supreme Court recognized that the Ex Post Facto
Clause is violated when a defendant is sentenced under Guidelines
promulgated after he committed his criminal acts and the new version
provides a higher sentencing range than the version in place at the time of
the offense. However, assuming, arguendo, Appellant was sentenced under
circumstances encompassed in Peugh, we conclude Appellant has not
otherwise met the newly-recognized constitutional right exception.3
In considering whether Appellant has advanced a valid claim asserting
a newly-recognized constitutional right, as that phrase is used in Section
9545(b)(1)(iii), our Supreme Court has noted:
Subsection (iii) of Section 9545 [(b)(1)] 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 this court 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 right “has been held” by
____________________________________________
3
With regard to the sixty day due diligence requirement, we note that
Peugh was filed on June 10, 2013, but Appellant did not file his instant
PCRA petition until November 5, 2013. However, our Supreme Court did not
deny Appellant’s petition for allowance of appeal with regard to his tenth
PCRA petition until September 18, 2013, and subsequently, Appellant filed
the instant PCRA petition within 60 days. Thus, we conclude he met the
sixty day due diligence requirement for invoking a timeliness exception at
the first available opportunity. See Commonwealth v. Lark, 560 Pa. 487,
493-94, 746 A.2d 585, 588 (2000).
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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, 596 Pa. 104, 109–10, 941 A.2d 646,
649–50 (2007) (quotation omitted). Thus, to satisfy the time bar, Appellant
must establish both that Peugh recognized a new constitutional right and
that it applies retroactively. Commonwealth v. Chambers, 35 A.3d 34, 41
(Pa.Super. 2011).
We dispose of the instant matter by noting that the U.S. Supreme
Court espoused its holding in Peugh on direct appeal and has not indicated
it is to apply retroactively to cases on collateral review wherein the judgment
of sentence has already become final. Moreover, to the extent Appellant
argues that Peugh applies retroactively under the framework set forth by
the U.S. Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,
103 L.Ed.2d 334 (1989), which was subsequently adopted by a majority of
our Supreme Court in Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345
(2011), and to which this Court generally looks in determining retroactivity
of new federal constitutional rulings, we disagree.
This Court recently acknowledged that “[t]he seminal test in
determining whether a constitutional rule warrants retroactive application
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during collateral review was delineated in Teague[.]” Commonwealth v.
Riggle, 119 A.3d 1058, 1065 (Pa.Super. 2015) (citations omitted).
“Under the Teague framework, an old rule applies both on direct
and collateral review, but a new rule is generally applicable only
to cases that are still on direct review. A new rule applies
retroactively in a collateral proceeding only if (1) the rule is
substantive or (2) the rule is a ‘watershed rule of criminal
procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding.”
Riggle, 119 A.3d at 1065 (quoting Whorton v. Bockting, 549 U.S. 406,
416 (2007)).
As noted, the United States Supreme Court has utilized a substantive
and procedural rule dichotomy in analyzing retroactivity. See Teague,
supra. “Substantive rules are those that decriminalize conduct or prohibit
punishment against a class of persons. Concomitantly, the Supreme Court
has made clear that ‘rules that regulate only the manner of determining the
defendant's culpability are procedural.’” Riggle, 119 A.3d at 1066 (quoting
Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519 (2002) (citation
omitted)).
With regard to the first prong of the Teague framework, the federal
high Court in Peugh, 133 S.Ct. at 2083, indicated that “failing to calculate
the correct Guideline range constitutes procedural error,” thus the
implication is that the rule announced in Peugh will not be applied
retroactively. Moreover, the rule announced in Peugh did not decriminalize
conduct or prohibit punishment against a class of persons. Riggle, 119 A.3d
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at 1066. Accordingly, under the Teague framework, the rule announced in
Peugh is not a substantive one to be applied retroactively in collateral
proceedings.
With regard to the second prong of the Teague framework,
watershed rules of criminal procedure are those that “‘alter our
understanding of the bedrock procedural elements’” of the adjudicatory
process. Teague, 489 U.S. at 311, 109 S.Ct. at 1060. A watershed rule
“must be one ‘without which the likelihood of an accurate conviction is
seriously diminished.’” Schriro, 542 U.S. at 352, 124 S.Ct. 2519 (quotation
omitted) (emphasis in original). This “class of rules is extremely narrow[.]”
Id.
We conclude Peugh did not establish a watershed rule of criminal
procedure because it simply changed the discretion afforded to judges in
determining which Guidelines to apply at sentencing. Accordingly, Peugh
did not set forth a watershed rule of criminal procedure such that it would
apply retroactively under Teague.
In sum, the rule announced in Peugh does not constitute a newly-
recognized constitutional right, as that phrase is used in Section
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J-S41031-16
9545(b)(1)(iii). Accordingly, the dismissal of Appellant’s instant PCRA
petition was proper, as it was untimely.4
Affirmed.
Judge Dubow joins the Opinion.
PJE Bender files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2016
____________________________________________
4
Appellant alleges that appellate counsel was ineffective in failing to file a
petition for allowance of appeal on direct appeal. However, as our Supreme
Court has held, “[a] claim of ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits.” Commonwealth
v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999).
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