Com. v. Campbell, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALISTER CAMPBELL
Appellant No. 1324 MDA 2016
Appeal from the PCRA Order June 23, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003854-2002
CP-22-CR-0003855-2002
CP-22-CR-0003856-2002
BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 06, 2017
Alister Campbell appeals pro se from the order, entered in the Court of
Common Pleas of Dauphin County, which dismissed his second petition filed
pursuant to the Post Conviction Relief Act (PCRA) as untimely.' Upon
review, we affirm.
Following a jury trial held October 6 through October 10, 2003,
Campbell was convicted of criminal homicide and related offenses. He was
sentenced on December 5, 2003, to an aggregate term of 20 to 40 years'
imprisonment. Campbell filed a counseled direct appeal from his judgment
" 42 Pa.C.S. §§ 9541-9546.
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of sentence, which culminated in our Supreme Court denying allowance of
appeal on January 11, 2005.
Thereafter, on November 14, 2005, Campbell filed a timely pro se first
PCRA petition. The PCRA court appointed counsel. On July 11, 2006, the
court dismissed the first petition without a hearing, after providing notice of
its intent to do so pursuant to Pa.R.Crim.P. 907. Campbell filed an appeal in
this Court, which was dismissed for failure to file a brief. On June 4, 2012,
Petitioner filed a "Motion to Correct Illegal Sentence Regarding Inadequate
Collateral and Trial Counsel." The trial court treated this motion as a second
PCRA petition and dismissed it as untimely. Campbell did not file an appeal
of the dismissal of his second petition.
Subsequently, on February 22, 2016, Defendant filed the instant pro
se PCRA petition. The PCRA court denied Campbell's request for counsel.
After issuing a notice pursuant to Rule 907, the court dismissed the petition
on June 23, 2016. Campbell is proceeding pro se on appeal. He raises the
following issues, verbatim, for our review:
1. Whether the court erred in denying [Campbell's] PCRA
petition due to the change in law as announced by
Commonwealth v. Hopkins[, 117 A.3d 247 (Pa. 2015),] as
newly stated constitutional law[,] to have all factors which
would increase his sentence [be] proven beyond a reasonable
doubt.
2. Whether the federal court's action[s] in similar cases have
created a precedent that the state courts should follow,
allow[ing] retroactiv[ity], or whether retroactive application
was necessary when [Campbell] filed a timely post[-]
conviction petition.
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Brief for Appellant, at 2.
Our standard and scope of review regarding the denial of a PCRA
petition is well -settled. We review the PCRA court's findings of fact to
determine whether they are supported by the record, and review its
conclusions of law to determine whether they are free from legal error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level. Id.In order to be considered timely,
[a] PCRA petition, including a second or subsequent one, must
be filed within one year of the date the petitioner's judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S. § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by
[the Pennsylvania Supreme] Court or the United States Supreme
Court, or at the expiration of the time for seeking such review.
42 Pa.C.S. § 9545(b)(3). The PCRA's timeliness requirements
are jurisdictional; therefore, a court may not address the merits
of the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and
footnote omitted).
The three statutory exceptions for an untimely petition under the PCRA
consist of the following:
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(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). Additionally, a petition invoking a timeliness
exception pursuant to the statute must "be filed within 60 days of the date
the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
Here, Campbell's petition for allowance of appeal in our Supreme Court
was denied on January 11, 2005. Thus, his sentence became final on April
11, 2005, upon the expiration of the ninety -day period for filing a writ of
certiorari with the United States Supreme Court. See 42 Pa.C.S. §
9545(b)(3); Sup. Ct. R. 13. Campbell therefore had until April 11, 2006, to
file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Because
Campbell did not file the instant PCRA petition until February 22, 2016, it is
patently untimely.
Campbell argues that he has satisfied the timeliness exception in
section 9545(b)(1)(iii) because he filed the instant PCRA petition in
anticipation of our decision in Commonwealth v. Ciccone, A.3d I
2016 PA Super 283 (filed Dec. 13, 2016) (en banc), apparently with the
belief that this Court would hold that Alleyne v. United States, 133 S. Ct.
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2151 (2013),2 would apply retroactively in PCRA contexts such as this.
However, unfortunately for Campbell, in Ciccone, an en banc panel of this
court determined that the holding in Alleyne does not apply to situations
such as his. See Ciccone, supra (Pennsylvania Supreme Court has clearly
ruled in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), that
Alleyne is not retroactively applicable in PCRA context). Accordingly,
Campbell fails to meet a timeliness exception and is entitled to no relief.3
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/6/2017
2 Alleyneheld that any fact increasing a mandatory minimum sentence for a
crime is an "element" of the crime that must be submitted to the jury.
3 Campbell's Application for Relief dated February 14, 2017, requesting
reconsideration of his second issue raised on appeal is denied, as we are
without jurisdiction to consider the issue, since the instant PCRA petition is
untimely. Jones, supra.
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