“Alleyne is not entitled to retroactive effect in this PCRA setting.”
How later courts described this case
- “Alleyne is not entitled to retroactive effect in this PCRA setting.”
- “[T]his Court has held that 18 Pa.C.S. § 7508, in its entirety, is unconstitutional.”
Written by the judges who cited it.
The opinion
J-S59011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HERBERT BROWN,
Appellant No. 3434 EDA 2015
Appeal from the PCRA Order Entered October 20, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0510951-2006
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 08, 2017
Appellant, Herbert Brown,1 appeals pro se from the October 20, 2015
order from the Court of Common Pleas of Philadelphia County, which
dismissed, as untimely, his second petition for collateral relief under the Post
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 On November 20, 2017, Appellant petitioned this Court to order the
Commonwealth to use his full name, Herbert Dee Brown, Jr., on all future
correspondence and service, “per PA-D.O.C. mailroom dept.’s policy[,]” as
he is representing himself in the current appeal. Petition, 1/20/17, at 1. A
quick review of the D.O.C.’s website indicates that there are at least three
inmates currently serving time in Pennsylvania prisons other than Appellant,
all with the name “Herbert Brown.” Only one inmate, Appellant, is listed
under the name, “Herbert Dee Brown, Jr.,” as verified by linking that name
to the D.O.C. inmate number provided with Appellant’s previous filings in
this Court. Accordingly, we hereby grant Appellant’s petition and instruct
the Commonwealth to use Appellant’s full name when providing him service
of any filed documents or other correspondence in this case.
J-S59011-17
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. After careful review,
we affirm.
On November 7, 2004[,] [Appellant] was arrested by
Philadelphia police and charged with possession of a controlled
substance with intent to deliver and related offenses. On August
22, 2007, [Appellant] pled guilty to possession with intent to
deliver. See CP-51-CR-0510951-2006 at 3. On August 22,
2007, [Appellant] was … sentenced before the Honorable Senior
Judge Earl W. Trent to three (3) to six (6) years[’] incarceration
in a state correctional institute followed by 5 years of probation.
Id.
On April 24, 2008, [Appellant] filed for relief under the
PCRA pro se. See CP-51-CR-0510951-2006 at 8. On January
12, 2009 and January 16, 2009, [t]he PCRA [c]ourt denied
[Appellant]'s first petition after an evidentiary hearing. Id. at 8.
[Appellant] then appealed to the Superior Court for further
review of his first PCRA petition. Id. at 9.
On December 12, 2014, [Appellant] filed his second pro se
petition ("the Petition") for relief under the PCRA. See CP-51-
CR-0510951-2006 at 13. Attorney John P. Cotter was appointed
to represent [Appellant] in this PCRA matter. On July 31, 2015,
Mr. Cotter submitted a Finley[2] Letter to this [c]ourt in which he
concluded that [Appellant]'s claims were without merit. Finley
Letter at 1, 2. On September 10, 2015, this [c]ourt signed
notice of dismissal pursuant to [Pa.R.Crim.P.] 907 after
determining that [Appellant] was not entitled to post conviction
relief. See CP-51-CR-0510951-2006 at 13. On September 26,
2015 and September 30, 2015, [Appellant] filed pro se
responses to the … Rule 907 Dismissal Notice. On September
30, 2015, [Appellant] also filed a pro se Opposition/Response to
the Finley Letter. On October 20, 2015, the [PCRA court]
dismissed [Appellant]'s petition regarding the Finley Letter and
the PCRA in its entirety following a hearing.
____________________________________________
2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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PCRA Court Opinion, 12/6/16, at 1-2. In the PCRA court’s October 20, 2015
order, the court also permitted Attorney Cotter leave to withdraw pursuant
to Finley.
Appellant filed a timely pro se notice of appeal, and a timely, court-
ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued its Rule
1925(a) opinion on December 6, 2016. Appellant now presents the following
questions for our review, verbatim:
1) Where a lower court improperly dismissed
defendant/appellant's P.C.R.A's newly-discovered–evidence
supplement petition', where his claim is a time-bar
exception?
2) Where a lower court sentenced an appellant pursuant to a
commonwealth request to sentence to the mandatory
minimum by statute, is such a sentence proper in light of
Alleyne v. United States, 133 s. ct. 2151 (2013)?
3) Where a lower court sentences an appellant pursuant to a
commonwealth request to the mandatory minimum is such
a statute constitutional in light of Commonwealth v.
Hopkins, 98 map 2015 (June 15th, 2015)?
Appellant’s Substitute Brief at 3 (unnecessary capitalization omitted).
This Court's standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant's petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
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1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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;
(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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
The trial court imposed Appellant’s judgment of sentence on August
22, 2007, and he apparently did not seek a direct appeal from that decision.
The instant PCRA petition, Appellant’s second, was filed on December 12,
2014. Appellant’s PCRA petition is, therefore, patently untimely. See 42
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Pa.C.S. § 9545(b)(1). Accordingly, we cannot address the merits of
Appellant’s PCRA petition unless he meets one of the enumerated statutory
exceptions to the PCRA’s time bar set forth in Sections 9545(b)(1)(i)-(iii).
Appellant alleges that he meets either the newly-discovered-evidence
exception (Section 9545(b)(1)(ii)) or the retroactive-constitutional-right
exception (Section 9545(b)(1)(iii)). Appellant’s Substitute Brief at 5. For
the reasons that follow, we conclude that Appellant fails to meet both
exceptions.
Although Appellant ostensibly raises two separate exceptions to the
PCRA’s time bar, upon further examination of the arguments presented in
his brief (Appellant’s Substitute Brief at 6-11), it is clear that Appellant is
only raising a claim which potentially falls under the retroactive-
constitutional-right exception. This is because the alleged newly-discovered
evidence at issue is the United States Supreme Court’s decision in Alleyne
v. United States, 570 U.S. 99 (2013), and decisions of Pennsylvania courts
implementing Alleyne to render unconstitutional various mandatory
minimum sentencing statutes. Accordingly, we will only address Appellant’s
claims under the framework of the retroactive constitutional right exception,
42 Pa.C.S. § 9545(b)(1)(iii).
Subsection (iii) of Section 9545 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
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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. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).
It is true that the mandatory-minimum sentencing statute under which
Appellant was sentenced has subsequently been held to be unconstitutional
pursuant to Alleyne. See Commonwealth v. Carter, 122 A.3d 388, 393
(Pa. Super. 2015) (“[T]his Court has held that 18 Pa.C.S. § 7508, in its
entirety, is unconstitutional.”) However, our Supreme Court has specifically
held that “Alleyne does not apply retroactively to cases pending on
collateral review….” Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016); see also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa.
Super. 2015) (“Alleyne is not entitled to retroactive effect in this PCRA
setting.”). Accordingly, Appellant cannot meet any exception to the PCRA’s
time-bar. Thus, the PCRA court lacked jurisdiction to provide any relief in
this case.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
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