Com. v. Brown, L., Jr.

J-S53025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LAMAR W. BROWN, JR.,

Appellant No. 1920 MDA 2015

Appeal from the PCRA Order October 15, 2015

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0000140-2003

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2016

Appellant, Lamar W. Brown, Jr., appeals pro se from the order denying

his second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

A previous panel of this Court summarized the factual and extensive

procedural history of this case as follows:

On December 17, 2002, Appellant and his co-

defendant were arrested and charged for the robbery

of three individuals of cash and jewelry in the

Borough of Gettysburg. At the time, Appellant was

brandishing a sawed-off shotgun. On April 7, 2003,

Clarence E. Allen, Esquire, entered his appearance

on behalf of Appellant. On May 19, 2003, an Order

was entered granting Attorney Allen access to

____________________________________________

*

Former Justice specially assigned to the Superior Court.

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Appellant’s medical records from the Adams County

Prison.

On October 20, 2003, Appellant entered a plea

of guilty to three counts of Robbery, 18 Pa.C.S.A. §

3701. Sentencing was deferred until January 13,

2004. At that time, the trial court was presented

with a pre-sentence investigation report which

contained a copy of a mental health evaluation

performed on Appellant at the prison by Rose

Maturo, M.S., L.P.C., dated January 6, 2004.

Nothing therein gave any hint that Appellant was

unable to understand due to the medication he was

taking.FN1 Appellant was sentenced to three

consecutive terms of imprisonment of 5-10 years.

His request for reconsideration of sentence was

denied on April 20, 2004. No direct appeal was filed.

FN1: In fact, the report indicates that

during the interview Appellant “was alert

and oriented to person, place, and time

and his memory and thought processes

are intact.” Report at 2.

Appellant filed a pro se Motion for Post-

Conviction Collateral Relief on May 27, 2005. After

review, the PCRA court wrote to Appellant advising

that the issues he was raising were untimely and

would be dismissed unless properly amended.

Gregory Hollinger, Esquire, was appointed to

represent Appellant.

On July 6, 2005, Appellant, through counsel,

filed a Statement of Objection to Dismissal of PCRA

Petition wherein he claimed relief because inter alia

(1) Plea counsel failed to file a motion to withdraw

his plea as requested, (2) Plea counsel failed to file

an appeal from sentencing, and (3) Appellant’s guilty

plea was involuntarily entered because Appellant was

then taking medications that interfered with his

ability to comprehend his decision to plead guilty.

***

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At a pre-hearing conference scheduled for

January 12, 2006, the primary issue at that time was

whether Appellant’s right to file a direct appeal from

sentencing should be granted. If granted, all other

post-conviction collateral claims would be stayed

pending the outcome of the appeal, but, if denied,

the PCRA motion would be dismissed as untimely

filed.

On January 12, 2006, without a hearing, the

Commonwealth conceded the issue regarding

Appellant’s right to appeal. Therefore, the right was

reinstated and Appellant filed his appeal on January

24, 2006. Seven days later, the [c]ourt directed

Appellant to file his Statement of Matters Complained

of on Appeal as required by Pa.R.A.P. 1925(b). That

statement was not filed until March 10, 2006.

Because of that late filing, [a panel of the Superior

Court] considered all issues waived and affirmed the

judgment of sentence on January 3, 2007. See

Commonwealth v. Brown, 212 MDA 2006 (Pa.

Super. filed Jan. 3, 2010) (unpublished

memorandum).

On October 30, 2007, Appellant filed another

PCRA petition wherein he claimed relief on the basis

of ineffective assistance of counsel and an invalid

plea due to the effects of medication. Barbara

Entwistle, Esquire, was appointed to represent

Appellant. She filed a Supplemental PCRA Petition

on December 28, 2007, which she further amended

on January 10, 2008. Essentially, the same claims

for relief were averred as raised in 2005, with the

addition of Attorney Hollinger’s ineffectiveness in

filing a late Rule 1925 statement.

***

On November 12, 2009, the PCRA court

entered an Opinion and Order finding Appellant’s

initial PCRA counsel ineffective and granting

Appellant the right to pursue his original direct

appeal.

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Appellant appealed on December 10, 2009,

and the Superior Court affirmed [his judgment of

sentence] on November 15, 2010. See

Commonwealth v. Brown, 2119 MDA 2009 (Pa.

Super. filed Nov. 15, 2010) (unpublished

memorandum).

For reasons that need not be discussed,

Attorney Entwistle requested leave to be replaced as

Appellant’s counsel and, on January 14, 2011,

Stephen Maitland, Esquire, was appointed to

represent Appellant. The Court indicated, in writing,

to Appellant and Attorney Maitland that the case

would proceed when they identified the issues they

wished to pursue.[1] On August 4, 2011, Attorney

Maitland filed a “memorandum” stating that the only

issue being pursued concerned the validity of

Appellant’s plea. He also indicated that he was not

successful in obtaining York County medical records

and, therefore, intended to claim “governmental

interference.”

The lower court treated Attorney Maitland’s

memorandum as a PCRA Petition. A hearing was

held before this [c]ourt on October 17, 2011. At that

time, Appellant also claimed that he was not properly

colloquied regarding his right to a jury trial where he

would be presumed innocent.

On October 31, 2011, the PCRA [court] denied Appellant’s PCRA

petition. [A] timely appeal followed.

Commonwealth v. Brown, 2045 MDA 2011, 60 A.3d 580 (Pa. Super. filed

August 24, 2012) (unpublished memorandum at 2-4.). A panel of this Court

affirmed the PCRA court’s denial of Appellant’s PCRA petition on August 24,

2012. Id.

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1

The record is unclear as to what triggered the common pleas court’s action.

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On July 9, 2015, Appellant filed a second PCRA petition. The PCRA

court dismissed this second PCRA petition by order entered October 16,

2015. Appellant timely appealed. The trial court did not order the filing of a

Pa.R.A.P. 1925(b) statement.

Appellant presents the following issues for our review:

I. Did the P.C.R.A. Court err in denying the Post Conviction

Relief Act Petition without a hearing by misapprehending the

retroactive application in Commonwealth v. Hopkins, 117

A.3d 247 (2015) when [its] paradigm, Alleyne v. United

States, 133 S.Ct. 2151 (2013) created a “substantive rule,”

which “the Constitution requires State Collateral Review Courts

to give retroactive effect to that rule?”

II. Did the P.C.R.A. Court err in denying the Post Conviction

Relief Act Petition without a hearing when Appellant Mr. Brown

filed the instant Post Conviction Relief Act Petition timely by filing

within sixty (60) days of learning of the Supreme Court of

Pennsylvania’s decision in Commonwealth v. Hopkins, 117

A.3d 247 (2015)?

III. Did the P.C.R.A. Court err in denying the Post Conviction

Relief Act Petition without a hearing when Appellant Mr. Brown

contends that through the Court’s inherent power, the P.C.R.A.

Court always retains jurisdiction to correct his patently

unconstitutional, and therefore illegal sentence?

Appellant’s Brief at 4.

Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

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Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the PCRA court

may not ignore it in order to reach the merits of the petition.

Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)). A judgment of

sentence “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).

However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

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2

The exceptions to the timeliness requirement are:

(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;

(Footnote Continued Next Page)

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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

As noted, following reinstatement of Appellant’s direct appeal rights, a

panel of this Court affirmed Appellant’s judgment of sentence on November

15, 2010. Commonwealth v. Brown, 2119 MDA 2009, 22 A.3d 1070, (Pa.

Super. filed November 15, 2010). Appellant did not file a petition for

allowance of appeal to our Supreme Court. Accordingly, Appellant’s

judgment of sentence became final thirty days after this Court affirmed his

judgment of sentence, when the time for seeking allowance of appeal

expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a). Thus, for purposes of

section 9545(b), Appellant’s judgment of sentence became final on

December 15, 2010. Therefore, Appellant had until December 15, 2011, to

_______________________

(Footnote Continued)

(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), (ii), and (iii).

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file a timely petition. Appellant did not file the instant PCRA petition until

July 9, 2015. Appellant’s instant PCRA petition is patently untimely.

As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

Appellant argues that the “newly discovered fact” exception at 42

Pa.C.S. § 9545(b)(ii) applies in this case. Appellant’s Brief at 17; PCRA

Petition, 7/9/15, at 1-2. Appellant maintains that he “raises the ‘newly

discovered fact’ of his sentence becoming illegal in light of the Supreme

Court of Pennsylvania’s decision in Commonwealth v. Hopkins, 117 A.3d

247 (June 15, 2015).”3 Appellant’s Brief at 17 (emphasis in original).

Appellant argues that he timely invoked this exception by filing the current

PCRA petition within sixty days of the Hopkins ruling. Id. Appellant also

asserts that his sentence is “not only illegal because of the precedential

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3

In Hopkins, the Supreme Court of Pennsylvania found that pursuant to

Alleyne v. United States, 133 S.Ct. 2151, 2158, (2013), the mandatory

minimum sentencing scheme set forth in 18 Pa.C.S. § 6317 (“Drug-free

school zones”) was unconstitutional in its entirety. Hopkins, 117 A.3d at

262. The appellant in Hopkins had filed a direct appeal, as his sentence

was not final at the time the Supreme Court of the United States issued its

decision in Alleyne.

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case-law of Hopkins, but because of the principles of the statute becoming

null and void based [upon] the standards set by the United States Supreme

Court in Alleyne.” Id.

This Court has ruled that judicial decisions are not facts for purposes

of 42 Pa.C.S. § 9545(b)(1)(ii). See Cintora, 69 A.3d at 763 (“[A] judicial

opinion does not qualify as a previously unknown ‘fact’ capable of triggering

the timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA.”).

Thus, Appellant has not properly invoked the time-bar exception under 42

Pa.C.S. § 9545(b)(1)(ii).

Additionally, we note that Appellant’s PCRA petition does not qualify

for the new constitutional right exception to the PCRA time bar under 42

Pa.C.S. 9545(b)(1)(iii). Neither the United States Supreme Court nor the

Pennsylvania Supreme Court has determined that Alleyne applies

retroactively to those whose sentences were final prior to its issuance.

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).4 Indeed,

our State Supreme Court recently held that “Alleyne does not apply

retroactively to cases pending on collateral review.” Commonwealth v.

Washington, __ A.3d __, 2016 WL 3909088 at *8, 37 EAP 2015 (Pa. filed

July 19, 2016). As noted, Appellant’s sentence became final on December

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4

In Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en

banc), we explained that Alleyne will apply to cases pending on direct

appeal as of June 17, 2013.

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15, 2010. Alleyne was decided on June 17, 2013. Therefore, Appellant’s

PCRA petition does not qualify for the new constitutional right exception to

the PCRA time bar under Alleyne. Id.

Furthermore, the Hopkins decision did not announce a “new rule;” but

rather, it simply assessed the validity of Section 6317 under Alleyne and

concluded that particular mandatory minimum sentencing statute is

unconstitutional. Nevertheless, even if Hopkins announced a new rule,

neither our Supreme Court nor the United States Supreme Court has held

that Hopkins applies retroactively to postconviction petitioners such as

Appellant. As noted, Appellant’s judgment of sentence became final on

December 15, 2010, and Hopkins was not decided until June 15, 2015.

Consequently, to the extent Appellant attempts to rely on Hopkins, he has

not satisfied the time-bar exception of Section 9545(b)(1)(iii).

Appellant also contends that even if his petition was untimely filed, the

PCRA court and this Court “never relinquish jurisdiction to correct an illegal

sentence and always retains [sic] the power to do so.” Appellant’s Brief at

23 (emphasis in original). Our Court has provided the following explanation

in addressing an illegality of sentence claim in the context of an untimely

PCRA:

A court may entertain a challenge to the legality of the

sentence so long as the court has jurisdiction to hear the claim.

In the PCRA context, jurisdiction is tied to the filing of a timely

PCRA petition. . . . Although 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.

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Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (internal

citations and quotation marks omitted). Because Appellant’s PCRA petition

is untimely and none of the time-bar exceptions applies, the PCRA court

lacked jurisdiction to address Appellant’s illegality of sentence claim.

Consequently, because the PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition). Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition. See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/11/2016

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