Com. v. Henry, R. ( 2016 )


Menu:
  • J-S24040-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    RAY HENRY
    Appellant                No. 1820 MDA 2015
    Appeal from the PCRA Orders September 25 and 28, 2015
    In the Court of Common Pleas of Lebanon County
    Criminal Division at No(s): CP-38-CR-0000318-2009;
    CP-38-CR-0001760-2008
    BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
    JUDGMENT ORDER BY GANTMAN, P.J.:                FILED MARCH 09, 2016
    Appellant, Ray Henry, appeals from the orders entered in the Lebanon
    County Court of Common Pleas, which dismissed his serial petitions filed
    under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
    9546. At docket no. 1760-2008, a jury convicted Appellant on February 6,
    2009, of robbery (3 counts), conspiracy, and possessing instruments of
    crime. The court sentenced Appellant on March 25, 2009, to an aggregate
    term of 4-20 years’ imprisonment. The sentence included a deadly weapon
    enhancement (“DWE”) per 204 Pa.Code § 303.10(a) (providing court shall
    consider special DWE sentencing matrix when court determines offender
    possessed/used deadly weapon during commission of offense). This Court
    affirmed on March 3, 2010. See Commonwealth v. Henry, 
    996 A.2d 544
    J-S24040-16
    (Pa.Super. 2010). Appellant filed a pro se PCRA petition on April 12, 2010.
    The court appointed counsel, who filed an amended petition on June 7,
    2010. Following a hearing, the court denied relief on July 19, 2010. This
    Court affirmed on February 23, 2011. See Commonwealth v. Henry, 
    24 A.3d 462
    (Pa.Super. 2011). At docket no. 318-2009, Appellant pled guilty
    on May 21, 2009, to two counts of robbery. The court sentenced Appellant
    on June 24, 2009, to an aggregate term of 40 months to 10 years’
    imprisonment, concurrent with the docket 1760-2008 sentence. The record
    suggests the court also imposed a DWE sentence at this docket. Appellant
    filed a PCRA petition on April 12, 2010, which he withdrew on June 7, 2010.
    On May 1, 2015, Appellant filed his current pro se “Motion for
    Modification and Correct Illegal Sentence Nunc Pro Tunc” at both dockets.
    The court treated the motions as PCRA petitions, and on June 26, 2015,
    appointed counsel and issued notice per Pa.R.Crim.P. 907.          Appellant
    responded on July 8, 2015. Counsel filed amended petitions on August 31,
    2015. On September 25th and 28th, 2015, the court denied PCRA relief at
    docket 1760-2008, and at docket 318-2009, respectively. Appellant timely
    filed one notice of appeal on October 16, 2015, and a concise statement per
    Pa.R.A.P. 1925(b) on October 26, 2015.1
    ____________________________________________
    1
    Ordinarily, where one or more orders resolves issues arising on more than
    one docket, an appellant must file separate notices of appeal from each
    order. See Pa.R.A.P. 341, Note. Upon inquiry from this Court, Appellant
    (Footnote Continued Next Page)
    -2-
    J-S24040-16
    The timeliness of a PCRA petition is a jurisdictional requisite.
    Commonwealth v. Turner, 
    73 A.3d 1283
    (Pa.Super. 2013), appeal denied,
    
    625 Pa. 649
    , 
    91 A.3d 162
    (2014). A PCRA petition must be filed within one
    year of the date the underlying judgment becomes final.           42 Pa.C.S.A. §
    9545(b)(1). A judgment is deemed final at the conclusion of direct review or
    at the expiration of time for seeking review.         42 Pa.C.S.A. § 9545(b)(3).
    The statutory exceptions to the timeliness provisions of the PCRA allow for
    very limited circumstances under which the late filing of a petition will be
    excused; a petitioner asserting a timeliness exception must file a petition
    within 60 days of the date the claim could have been presented.          See 42
    Pa.C.S.A. § 9545(b)(1-2).          Instantly, Appellant’s judgment of sentence at
    docket 1760-2008 became final on April 2, 2010, upon expiration of the time
    to file a petition for allowance of appeal with our Supreme Court.           See
    Pa.R.A.P. 1113(a).        Appellant’s judgment of sentence at docket 318-2009
    became final on July 24, 2009, upon expiration of the time to file a notice of
    appeal with our Superior Court. See Pa.R.A.P. 903(a). Appellant filed the
    current PCRA petitions on May 1, 2015, which is patently untimely. See 42
    Pa.C.S.A. § 9545(b)(1).            Appellant now attempts to invoke the “new
    constitutional right” exception to the statutory time bar per Section
    _______________________
    (Footnote Continued)
    filed amended notices of appeal and amended concise statements (one for
    each docket). Given these circumstances, we decline to penalize Appellant
    for his technical non-compliance with Rule 341.
    -3-
    J-S24040-16
    9545(b)(1)(iii), relying on Alleyne v. United States, ___ U.S. ___, 
    133 S. Ct. 2151
    , 
    186 L. Ed. 2d 314
    (2013), to declare unconstitutional the DWE
    provision under which Appellant was sentenced.       Nevertheless, even if
    Alleyne created a new constitutional right, held to apply retroactively, and
    even if Appellant complied with the 60-day rule, the law on which he relies
    affords him no relief, because the DWE provision does not implicate
    Alleyne. See Commonwealth v. Buterbaugh, 
    91 A.3d 1247
    (Pa.Super.
    2014) (en banc), appeal denied, ___ Pa. ___, 
    104 A.3d 1
    (2014) (noting
    DWE does not implicate Alleyne). Thus, we affirm the denial of PCRA relief.
    Orders affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/9/2016
    -4-
    

Document Info

Docket Number: 1820 MDA 2015

Filed Date: 3/9/2016

Precedential Status: Precedential

Modified Date: 3/9/2016