Com. v. Shaw, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHAWN FARMER SHAW,
Appellant No. 2656 EDA 2013
Appeal from the PCRA Order Entered August 16, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0606951-2002
CP-51-CR-0714361-2002
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 03, 2014
Appellant, Rashawn Farmer Shaw, appeals pro se from the trial court’s
August 16, 2013 order denying as untimely his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Appellant was convicted on February 27, 2004, of various offenses
“stemming from his participation with others in two armed robberies of the
operators and patrons of businesses on March 30, 2002.” PCRA Court
Opinion (PCO), 3/26/14, at 1. That same day, Appellant was sentenced to
an aggregate term of 20 to 40 years’ incarceration. He did not file a direct
appeal.
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*
Retired Senior Judge assigned to the Superior Court.
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On December 1, 2008, Appellant filed a pro se PCRA petition and
counsel was appointed. Various delays in the disposition of Appellant’s
petition ensued, which are irrelevant to the instant appeal. On May 14,
2013, Appellant’s counsel filed a petition to withdraw and “no-merit” letter in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On May 17,
2013, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s petition. Appellant filed a timely pro se response, but on
August 16, 2013, the court issued an order dismissing Appellant’s petition
and granting counsel’s petition to withdraw.
Appellant filed a timely pro se notice of appeal, as well as a timely
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In
his pro se, handwritten brief to this Court, Appellant does not set forth a
statement of the questions involved as required by Pa.R.A.P. 2116. He also
does not divide his argument section “into as many parts as there are
questions to be argued[,]” or set forth “at the head of each part – in
distinctive type or in type distinctively displayed – the particular point
treated therein….” Pa.R.A.P. 2119(a). These briefing errors make it difficult
to ascertain precisely what issues Appellant is asserting on appeal.
Nevertheless, 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 1264, 1267
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(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may
not be altered or disregarded to address the merits of the petition);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)
(holding the Superior Court lacks jurisdiction to reach merits of an appeal
from an untimely PCRA petition). 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 exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That
section states, in relevant part:
(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.
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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).
Here, Appellant’s judgment of sentence became final on March 28,
2004, at the expiration of the thirty-day time-period for filing an appeal with
this Court. See 42 Pa.C.S. § 9545(b)(3) (stating a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking the review); Pa.R.A.P. 903(a) (stating a notice of appeal with
this Court “shall be filed within 30 days after the entry of the order from
which the appeal is taken”). Accordingly, Appellant had until March 28,
2005, to file a timely petition. Because his December 1, 2008 petition is
patently untimely, he must plead and prove the applicability of one of the
above-stated exceptions.
Appellant has failed to meet this burden. In his pro se petition,
Appellant alleged that his trial counsel was ineffective, and that his sentence
was illegal because the court imposed an “enhanced” term of incarceration
as punishment for Appellant’s refusal to plead guilty. PCRA Petition,
12/1/08, at 3. Neither of these claims satisfies an exception to the PCRA’s
one-year time-bar. See Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 785 (Pa. 2000) (holding that ineffectiveness of counsel claims generally
do not constitute an exception to the PCRA time requirements);
Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)
(“[A]lthough legality of sentence is always subject to review within the
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PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.”) (citation omitted). Thus, the PCRA court did not err in
denying his petition as untimely. See Commonwealth v. Ragan, 923 A.2d
1169, 1170 (Pa. 2007) (stating that 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).
We note, however, that Appellant presents two novel arguments on
appeal to this Court. First, he asserts that his due process rights were
violated because his judgment of sentence was not reviewed on direct
appeal. This claim is waived because it was not presented in Appellant’s
PCRA petition. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”). Moreover,
even if this argument had been preserved below, Appellant fails to explain
what timeliness exception his due process argument satisfies. Accordingly,
we would conclude that it does not entitle Appellant to a merits review of his
petition.
Appellant presents a second novel argument in his reply brief to this
Court, which we interpret as an attempt to invoke the timeliness exception
set forth in section 9545(b)(1)(iii). Specifically, Appellant asserts that his
sentence is illegal under Alleyne v. United States, 133 S.Ct. 2151 (2013)
(holding that any fact that increases a mandatory minimum sentence is an
‘element’ of the crime, not a sentencing factor, which must be found by the
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jury beyond a reasonable doubt).1 He further claims that this Court recently
held that Alleyne applies retroactively in Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014) (en banc).
Appellant is incorrect. While in Newman, we did conclude that
Alleyne applied retroactively to the defendant’s case because it “was still
pending on direct appeal when Alleyne was handed down,” we did not
address whether Alleyne applies retroactively to cases, such as Appellant’s,
which are pending on collateral review. Newman, 99 A.3d at 90 (emphasis
added). Moreover, in Commonwealth v. Miller, 2014 WL 4783558 (Pa.
Super. 2014) – a case decided after Newman - this Court rejected the
argument that section 9545(b)(1)(iii)’s exception can be satisfied by relying
on Alleyne. We reasoned:
Even assuming that Alleyne did announce a new constitutional
right, neither our Supreme Court, nor the United States
Supreme Court has held that Alleyne is to be applied
retroactively to cases in which the judgment of sentence had
become final. This is fatal to Appellant's argument regarding the
PCRA time-bar. This Court has recognized that a new rule of
constitutional law is applied retroactively to cases on collateral
review only if the United States Supreme Court or our Supreme
Court specifically holds it to be retroactively applicable to those
cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
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1
This claim is not waived, despite Appellant’s failure to raise it before the
PCRA court, as it implicates the legality of Appellant’s sentence. See
Commonwealth v. Jones, 932 A.2d 179, 183 (Pa. Super. 2007)
(“[L]egality-of-sentence claims are non-waivable and thus [are] not
required to have been preserved at any prior stage of litigation in order to
obtain review thereof.”) (emphasis in original).
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citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor,
933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes
of subsection (iii), the language ‘has been held by that court to
apply retroactively’ means the court announcing the rule must
have also ruled on the retroactivity of the new constitutional
right, before the petitioner can assert retroactive application of
the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715,
951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy
the new constitutional right exception to the time-bar.
Miller, 2014 WL 4783558, at *5.
Based on Miller, we conclude that Appellant has not satisfied the
exception set forth in section 9545(b)(1)(iii). Accordingly, the PCRA court did
not err in denying his untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2014
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