Com. v. Stafford, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
v. :
:
:
DEON C. STAFFORD :
: No. 1213 MDA 2017
Appellant :
Appeal from the PCRA Order July 17, 2017
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0005277-2008
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED APRIL 30, 2018
Appellant, Deon C. Stafford, appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546, as untimely. We affirm.
We take the relevant facts and procedural history of this case from our
independent review of the certified record. On March 4, 2009, Appellant
entered a negotiated guilty plea to three counts of robbery.1 The charges
stem from his October 2008 theft, using a BB gun, of pocketbooks from a
group of women as they walked home. On March 9, 2009, the trial court
sentenced him, in accordance with the plea agreement, to an aggregate term
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1 18 Pa.C.S.A. § 3701(a)(1)(ii).
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* Retired Senior Judge assigned to the Superior Court.
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of not less than ten nor more than twenty years’ incarceration.2 Appellant did
not file post-sentence motions or a direct appeal.
On August 26, 2015, Appellant, acting pro se, filed the instant PCRA
petition. Appointed counsel filed an amended petition on February 4, 2016.
The PCRA court issued notice of its intent to dismiss the petition on June 21,
2017, see Pa.R.Crim.P. 907(1), and entered its order dismissing it on July 17,
2017. This timely appeal followed.3
Appellant raises the following issues for our review:
1. Whether the Appellant is serving an illegal sentence?
2. Whether counsel was ineffective?
3. Whether the Appellant was abandoned by PCRA counsel, as
there was no timeliness exception argued?
(Appellant’s Brief, at 6) (unnecessary capitalization omitted).
We begin by addressing the timeliness of Appellant’s petition.
. . . [A] PCRA petition, including a second or subsequent
petition, must be filed within one year of the date that judgment
becomes final. A judgment becomes final for purposes of the
PCRA at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the
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2 The plea agreement included a mandatory minimum ten-year sentence
pursuant to 42 Pa.C.S.A. § 9714 because Appellant was a second strike
offender. See 42 Pa.C.S.A. § 9714; (see also PCRA Court Opinion, 11/01/17,
at 1; N.T. Sentencing, 3/09/09, at 2-3, 5; Amended PCRA Petition, 2/04/16,
at unnumbered pages 3 ¶ 13, 8 ¶ 14l, 9 ¶ 14m).
3 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on August 29, 2017. The court issued an opinion on
November 1, 2017. See Pa.R.A.P. 1925.
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Supreme Court of Pennsylvania, or at the expiration of time for
seeking the review.
It is well-settled that the PCRA’s time restrictions are
jurisdictional in nature. As such, this statutory time-bar implicates
the court’s very power to adjudicate a controversy and prohibits
a court from extending filing periods except as the statute
permits. Accordingly, the period for filing a PCRA petition is not
subject to the doctrine of equitable tolling; instead, the time for
filing a PCRA petition can be extended only by operation of one of
the statutorily enumerated exceptions to the PCRA time-bar.
The exceptions to the PCRA time-bar are found in Section
9545(b)(1)(i)–(iii) . . . and it is the petitioner’s burden to allege
and prove that one of the timeliness exceptions applies. Whether
a petitioner has carried his burden is a threshold inquiry that must
be resolved prior to considering the merits of any claim. . . .
Commonwealth v. Robinson, 139 A.3d 178, 185-86 (Pa. 2016) (quotation
marks and some citations omitted).
In the instant case, Appellant’s judgment of sentence became final on
April 9, 2009, when his time to file a direct appeal expired. See Pa.R.A.P.
903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had until April 9, 2010, to
file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant
filed the instant petition on August 26, 2015, it is untimely on its face, and
the PCRA court lacked jurisdiction to review it unless he pleaded and proved
one of the statutory exceptions to the time-bar. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
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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.
Id.
Any petition invoking an exception must “be filed within 60 days of the
date the claim could have been presented.” Id. at § 9545(b)(2). “If the
petition is untimely and the petitioner has not pled and proven an exception,
the petition must be dismissed without a hearing because Pennsylvania courts
are without jurisdiction to consider the merits of the petition.”
Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal
denied, 170 A.3d 1007 (Pa. 2017) (citation omitted).
Here, Appellant has not established the applicability of any exception to
the PCRA’s time-bar. (See Appellant’s Brief, at 11-19). His claim that his
sentence is illegal, premised on the United States Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013),4 (see Appellant’s Brief, at
11-13), does not allow him to circumvent the PCRA’s timeliness requirements.
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4 “In Alleyne, the Supreme Court of the United States held that the Sixth
Amendment requires that any fact—other than a prior conviction—that
increases a mandatory minimum sentence for an offense must be submitted
to the jury and proven beyond a reasonable doubt. Importantly, Alleyne did
not overturn prior precedent that prior convictions are sentencing factors and
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It is well settled that, “in order for this Court to review a legality of
sentence claim, there must be a basis for our jurisdiction to engage in such
review. . . . [T]hough not technically waivable, a legality [of sentence] claim
may nevertheless be lost should it be raised . . . in an untimely PCRA petition
for which no time-bar exception applies, thus depriving the court of jurisdiction
over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014) (citations and internal quotation marks omitted) (concluding PCRA court
correctly dismissed PCRA petition raising Alleyne claim as untimely). Our
Supreme Court has addressed the retroactive effect of Alleyne, and has
expressly held “that Alleyne does not apply retroactively to cases pending on
collateral review[.]” Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016).
Moreover, because “[s]ection 9714 increases mandatory minimum
sentences based on prior convictions[,] [it] is not unconstitutional under
Alleyne.” Reid, supra at 785 (citations omitted). Therefore, Appellant’s
claims based on Alleyne fail.
Regarding Appellant’s claims of ineffective assistance of counsel, (see
Appellant’s Brief, at 12-18), “[i]t is well settled that allegations of ineffective
assistance of counsel will not overcome the jurisdictional timeliness
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not elements of offenses.” Commonwealth v. Reid, 117 A.3d 777, 784 (Pa.
Super. 2015) (citations omitted; emphasis added).
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requirements of the PCRA.” Commonwealth v Wharton, 886 A.2d 1120,
1127 (Pa. 2005) (citations omitted).
In sum, we conclude Appellant has not met his burden of proving that
his untimely PCRA petition fits within one of the three exceptions to the PCRA’s
time-bar. See Robinson, supra at 186. Accordingly, we affirm the order of
the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/30/2018
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