Com. v. Hughston, K. ( 2017 )

J-S95045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KENYATTA JAVON HUGHSTON, :
:
Appellant : No. 2564 EDA 2016
Appeal from the PCRA Order August 1, 2016
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0000897-2008
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 29, 2017
Kenyatta Javon Hughston (“Hughston”), pro se, appeals from the
Order dismissing his fifth Petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 6, 2009, following a jury trial, Hughston was convicted of
two counts of robbery, and one count each of criminal conspiracy, forgery,
and possession of an instrument of crime. On June 15, 2009, the trial court
imposed an aggregate prison term of 132 to 300 months. Hughston did not
file a direct appeal. Hughston subsequently filed four PCRA Petitions, all of
which were dismissed. This Court affirmed each dismissal.
On June 13, 2016, Hughston, pro se, filed the instant PCRA Petition,
his fifth. The PCRA Court issued a Pa.R.Crim.P. 907 Notice, and Hughston
filed a Response. Thereafter, the PCRA Court dismissed the Petition.
Hughston filed a timely Notice of Appeal.
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We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the at the
PCRA level. The review is limited to the findings of the PCRA
court and the evidence of record. We will not disturb a PCRA
court’s ruling if it is supported by evidence of record and is
free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Initially, under the PCRA, any PCRA petition “shall be filed within one
year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. See Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Hughston’s sentence became final on July 15, 2009, after the time to
seek review with this Court had expired. See Pa.R.A.P. 903(a). A timely
PCRA petition had to be filed by July 15, 2010. Hughston filed his Petition
on June 13, 2016; thus, it was untimely on its face.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these
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exceptions, “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 992 A.2d at 1094.
Here, Hughston invokes the newly-recognized constitutional right
exception, and argues that United States v. Johnson, 135 S. Ct. 2551(2015), renders his sentence under 42 Pa.C.S.A. § 9714 illegal. In
Johnson, the United States Supreme Court declared that the residual clause
of the Armed Career Criminal Act violated due process rights by being
unconstitutionally vague on defining “violent felony.” Johnson, 135 S. Ct.
at 2563.
Here, Hughston filed his Petition on June 13, 2016, almost a year after
the Supreme Court’s June 26, 2015 Johnson decision. Thus, Hughston did
not properly file the Petition within 60 days of the date on which the
Supreme Court issued the Johnson decision. See Commonwealth v.
Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (stating that a petitioner
invoking the newly recognized constitutional right exception must file their
petition within sixty days of the date of the court’s decision).
Further, Hughston does not demonstrate that Johnson renders the
mandatory sentence codified at 42 Pa.C.S.A. § 9714 unconstitutional, or that
Johnson applies retroactively.
Moreover, Hughston’s ineffective assistance of counsel claims do not
not invoke a valid exception to the PCRA’s timeliness requirement. See
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Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000); see also
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).1
Finally, Hughston claims that he was never convicted of aggravated
assault, a prior conviction used to impose the mandatory minimum under
section 9714. However, Hughston previously litigated this claim in his fourth
PCRA Petition. See Commonwealth v. Hughston, 122 A.3d 447 (Pa.
Super. 2015) (unpublished memorandum at 9 n. 8). Thus, Hughston is not
entitled to relief. See 42 Pa.C.S.A. § 9543(a); id. § 9544(a).
Based upon the foregoing, Hughston has failed to plead and prove any
exception under section 9545(b)(1) to overcome the untimeliness of his
Petition.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
1
Hughston’s reliance upon Lafler v. Cooper, 132 S. Ct. 1376 (2012), and
Missouri v. Frye, 132 S. Ct. 1399 (2012), is misplaced. This Court has
previously concluded that neither case created a new constitutional right
that would invoke a time-bar exception. See Commonwealth v.
Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013).
2
The PCRA court did not err in dismissing the Petition without a hearing, as
Hughston filed an untimely PCRA Petition and did not invoke any valid
exceptions to the timeliness requirement. See Commonwealth v. Garcia,
23 A. 3d 1059, 1066 n.9 (Pa. Super. 2011).
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