holding new constitutional rule announced in Alleyne is not substantive or watershed procedural rule that warrants retroactive application to collateral attacks on mandatory minimum sentences where judgment of sentence became final before Alleyne was decided
How later courts described this case
- holding new constitutional rule announced in Alleyne is not substantive or watershed procedural rule that warrants retroactive application to collateral attacks on mandatory minimum sentences where judgment of sentence became final before Alleyne was decided
Written by the judges who cited it.
The opinion
J-S52045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARK DAVID BROWN :
:
Appellant : No. 604 MDA 2017
Appeal from the PCRA Order March 2, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001797-2010
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 06, 2017
Appellant, Mark David Brown, appeals pro se from the order of the
Luzerne County Court of Common Pleas, which dismissed as untimely his
first petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On March 31, 2011, Appellant entered a nolo
contendere plea to unlawful contact with a minor. The court adjudicated
Appellant a sexually violent predator on July 28, 2011, and sentenced him to
14 to 44 months’ imprisonment, followed by 12 months’ probation.
Appellant did not seek direct review, and his judgment of sentence became
final on or about August 27, 2011. On February 19, 2015, the court revoked
Appellant’s probation and resentenced him to 14 to 72 months’
imprisonment plus 24 months’ probation, with a credit of 44 months’ time
served. This Court affirmed the judgment of sentence on February 4, 2016.
J-S52045-17
Appellant filed his first, current PCRA petition on September 22, 2016,
claiming that his July 28, 2011 judgment of sentence was illegal under
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013). The PCRA court appointed counsel, who filed a motion to withdraw
and Turner/Finley1 no-merit letter on November 30, 2016. The PCRA
court issued Rule 907 notice on January 13, 2017, permitted counsel to
withdraw, and denied relief on March 2, 2017. Appellant timely filed a pro
se notice of appeal on March 29, 2017. No concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b) was ordered or filed.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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 time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited
circumstances which excuse the late filing of a petition; a petitioner
asserting a timeliness exception must file a petition within 60 days of when
____________________________________________
1
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2). When
asserting the newly created constitutional right exception under 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.”
Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal
denied, 616 Pa. 625, 46 A.3d 715 (2012).
Instantly, Appellant’s 2011 judgment of sentence became final on or
about August 27, 2011, upon expiration of the 30 days for filing a direct
appeal. See Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA
petition on September 22, 2016, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new
constitutional right” exception, citing Alleyne, which affords Appellant no
relief. See Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810
(2016) (holding new constitutional rule announced in Alleyne is not
substantive or watershed procedural rule that warrants retroactive
application to collateral attacks on mandatory minimum sentences where
judgment of sentence became final before Alleyne was decided); See also
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (holding that
even if Alleyne announced new constitutional right, neither our Supreme
Court nor U.S. Supreme Court has held Alleyne and its progeny apply
retroactively, which is fatal to appellant’s attempt to satisfy “new
constitutional right” exception to timeliness requirements of PCRA).
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Moreover, Appellant failed the 60-day rule. See 42 Pa.C.S.A. § 9545(b)(2).
Finally, the record shows the court did not impose a mandatory minimum
sentence. Therefore, Appellant’s petition remains time-barred, and the
PCRA court properly dismissed it. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2017
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