Com. v. Cunningham, J. ( 2018 )


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  • J-S31041-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JAMES B. CUNNINGHAM A/K/A                  :
    FRANK FLUELLEN,                            :
    :   No. 3487 EDA 2017
    Appellant         :
    Appeal from the PCRA Order September 28, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0301241-2000,
    CP-51-CR-0301251-2000
    BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
    MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 17, 2018
    Appellant, James B. Cunningham a/k/a Frank Fluellen, appeals pro se
    from the Order dismissing as untimely his sixth Petition filed pursuant to the
    Post-Conviction Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541-46. We affirm.
    On May 3, 2001, the court sentenced Appellant to an aggregate term of
    40 to 80 years’ incarceration after a jury convicted him of Burglary, Criminal
    Conspiracy, and Robbery. This Court affirmed, and the Pennsylvania Supreme
    Court denied allocatur on March 26, 2003. Commonwealth v. Cunningham,
    
    820 A.2d 703
     (Pa. 2003). Appellant did not seek a writ of certiorari from the
    United States Supreme Court. His Judgment of Sentence, thus, became final
    on June 24, 2003.1
    ____________________________________________
    1   See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.
    J-S31041-18
    Appellant subsequently filed five unsuccessful PCRA Petitions. On June
    9, 2014, he filed the instant pro se Petition, his sixth, challenging the legality
    of his sentence pursuant to Alleyne v. United States, 
    133 S.Ct. 2151
    (2013).2    On August 21, 2015, Appellant filed a “Supplemental Amended
    Petition for Writ of Habeas Corpus,” which the court properly treated as an
    amended PCRA Petition,3 again raising his Alleyne issue. On July 21, 2017,
    the PCRA court issued a Pa.R.Crim.P. 907 Notice of Intent to dismiss the
    Petition without a hearing. Appellant responded, requesting a hearing. On
    September 28, 2017, the PCRA court dismissed the Petition without a hearing.
    Appellant timely appealed.        The PCRA Court did not order Appellant to
    file a Pa.R.A.P. 1925(b) Statement. The court filed a Rule 1925(a) Opinion.
    Appellant raises the following two issues in his Brief:
    1. Whether the trial court abused its discretion in dismissing
    Appellant’s Petition for Habeas Corpus relief since his confinement
    is based on a PCRA proceeding that denied due process?
    ____________________________________________
    2 In a decision issued on June 17, 2013, the Alleyne Court held that, other
    than the fact of a prior conviction, any fact that increases the penalty for a
    crime beyond the prescribed statutory minimum must be submitted to a jury
    and proved beyond a reasonable doubt. 
    Id.,
     
    133 S.Ct. at 2160-61
    .
    3 See 42 Pa.C.S. § 9542; Commonwealth v. Peterkin, 
    722 A.2d 638
    , 640
    (Pa. 1998) (observing that “the PCRA subsumes the remedy of habeas corpus
    with respect to remedies offered under the PCRA” and the writ of habeas
    corpus “continues to exist only in cases in which there is no remedy under the
    PCRA.”).
    -2-
    J-S31041-18
    2. Whether Appellant’s sentence is a nullity since the mandatory
    sentence Statute in Pennsylvania have been ruled facially
    unconstitutional?
    Appellant’s Brief at 3 (verbatim).
    Before addressing the merits of Appellant’s claims, we must first
    determine whether we have jurisdiction to consider his PCRA Petition. See
    Commonwealth v. Hackett, 
    956 A.2d 978
    , 983 (Pa. 2008) (explaining that
    the timeliness of a PCRA Petition is a jurisdictional requisite).
    Under the PCRA, any petition “including a second or subsequent petition,
    shall be filed within one year of the date the judgment becomes final[.]” 42
    Pa.C.S. § 9545(b)(1).      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). The
    PCRA’s timeliness requirements are jurisdictional in nature, and a PCRA court
    may not address the merits of the issues raised if the petitioner did not timely
    file the PCRA petition. Commonwealth v. Albrecht, 
    994 A.2d 1091
    , 1093
    (Pa. 2010).
    The instant Petition, filed over 10 years after Appellant’s Judgment of
    Sentence became final, is patently untimely.          Pennsylvania courts may
    consider an untimely PCRA petition, however, if the petitioner pleads and
    proves one of the three exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-
    (iii). In arguing that his sentence is illegal pursuant to Alleyne, Appellant
    -3-
    J-S31041-18
    relies on 42 Pa.C.S. § 9545(b)(1)(iii).4 For a petitioner to avail himself of one
    of the exceptions, he must file his Petition within 60 days of the date the claim
    could have been presented. See id. at Section 9545(b)(2).5
    We note that as long as this Court has jurisdiction over the matter, a
    legality   of   sentencing     issue   is      reviewable   and   cannot   be   waived.
    Commonwealth v. Jones, 
    932 A.2d 179
    , 182 (Pa. Super. 2007). Thus, a
    legality of sentencing issue must be raised in a timely filed PCRA Petition over
    which we have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v.
    Fahy, 
    737 A.2d 214
    , 223 (Pa. 1999) (“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.”); Commonwealth v. Miller,
    
    102 A.3d 988
    , 995-96 (Pa. Super. 2014) (explaining that the decision in
    ____________________________________________
    4 Section 9545(b)(1)(iii) allows review of an untimely PCRA Petition if “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)(iii).
    5 We note that Appellant has included an argument in his pro se Brief
    pertaining to newly discovered facts, the exception provided in Section
    9545(b)(1)(ii). This is the same argument he presented in a prior PCRA
    Petition, which the PCRA Court determined was meritless and this Court
    affirmed on the basis that it did not meet the requirements of the Section
    (b)(1)(ii) timeliness exception. See Commonwealth v. Fluellen, 1492 EDA
    2012 (Pa. Super. filed June 3, 2013). The argument continues to fail to satisfy
    that timeliness exception. Moreover, claims previously raised and litigated
    are not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(3). In addition,
    subsection (b)(1)(ii) was not the section under which the instant PCRA Petition
    was filed; thus, even if this claim had not already been reviewed, it would be
    waived. See Pa.R.A.P. 302(a)(“issues not raised in lower court are waived”).
    -4-
    J-S31041-18
    Alleyne does not invalidate a mandatory minimum sentence when presented
    in an untimely PCRA Petition).
    In the instant case, if Appellant had been sentenced to a mandatory
    minimum sentence, he would have had to raise his Alleyne claim in a PCRA
    Petition filed by August 16, 2013, pursuant to 42 Pa.C.S. §9545(b)(2).
    Appellant filed the instant Petition on June 9, 2014, nearly 10 months too late.
    Moreover, even if Appellant had timely filed his Alleyne claim,
    Appellant’s claim would merit no relief. Our Supreme Court recently reiterated
    that Alleyne does not apply retroactively on post-conviction collateral review.
    See Commonwealth v. Washington, 
    142 A.3d 810
    , 820 (Pa. 2016).
    Because Appellant’s PCRA Petition fails to meet any of the timeliness
    exceptions and his legality of sentence claim is not reviewable retroactively,
    the PCRA court properly concluded it was without jurisdiction to address the
    merits of Appellant’s Petition.
    This Court is, likewise, without jurisdiction. We, thus, affirm the PCRA
    court’s Order.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/17/18
    -5-
    

Document Info

Docket Number: 3487 EDA 2017

Filed Date: 10/17/2018

Precedential Status: Precedential

Modified Date: 10/17/2018