Com. v. Pitts, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DARYL PITTS,
Appellant No. 2124 EDA 2016
Appeal from the PCRA Order June 21, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-1206131-1997
CP-51-CR-1206141-1997
BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 04, 2017
Appellant, Daryl Pitts, appeals pro se from the June 21, 2016 order
dismissing his fourth serial petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the factual and procedural history in this matter from our
review of the certified record. On June 16, 1999, a jury convicted Appellant
of burglary, theft, and robbery.' October 27, 1999, Appellant was sentenced
to an aggregate term of not less than thirty nor more than sixty years'
imprisonment. This Court affirmed his conviction on November 6, 2000, and
our Supreme Court denied his petition for allowance of appeal on April 16,
* Retired Senior Judge assigned to the Superior Court.
" See 18 Pa.C.S.A. §§ 3502, 3921, and 3701, respectively.
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2001. (See Commonwealth v. Pitts, 768 A.2d 886 (Pa. Super. 2000),
appeal denied, 775 A.2d 805 (Pa. 2001)).
Appellant filed his first PCRA petition on June 4, 2001. On January 30,
2002, the PCRA court dismissed the petition as meritless and permitted
counsel to withdraw. This Court remanded the matter, concluding that
counsel's Finley2 letter did not address all of Appellant's issues. (See
Commonwealth v. Pitts, No. 552 EDA 2002, unpublished memorandum at
*9 (Pa. Super. filed Nov. 14, 2002)). The PCRA court appointed new
counsel, who filed an amended petition addressing Appellant's concerns,
which the PCRA court dismissed on May 7, 2004. This Court affirmed the
dismissal on August 25, 2005, and our Supreme Court denied Appellant's
petition for allowance of appeal on May 31, 2006. (See Commonwealth v.
Pitts, 884 A.2d 251 (Pa. Super. 2005), appeal denied, 899 A.2d 1123 (Pa.
2006)).
Thereafter, Appellant filed a second PCRA petition on June 11, 2013,
which the PCRA court dismissed as untimely. This Court affirmed the
dismissal on February 25, 2015. (See Commonwealth v. Pitts, 120 A.3d
392 (Pa. Super. 2015) (unpublished memorandum)). Appellant filed his
third PCRA petition on August 13, 2015, which the court dismissed as
untimely. Appellant did not appeal.
2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc);
see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
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Appellant filed the instant PCRA petition on March 23, 2016. The PCRA
court issued notice of intent to dismiss on June 1, 2016. See Pa.R.Crim.P.
907(1). Appellant responded on June 21, 2016. The PCRA court dismissed
the petition as untimely on June 21, 2016. This timely appeal followed.3
Appellant raises two issues on appeal:
I. Was it PCRA court error to summarily dismiss the PCRA
[petition]
in light of the announcement by the United States
Supreme Court [in] Montgomery v. Louisiana[, 136 S.Ct. 718(2016)]?
II. Was the "[Commonwealth v. ]Lawson[, 549 A.2d 107 (Pa.
1988)]" miscarriage of justice standard of the PCRA available to
the Appellant for relief under the provisions at 42 Pa.C.S.A. §
9545(b)?
(Appellant's Brief, at 4) (most capitalization omitted).
We begin by addressing the timeliness of Appellant's instant PCRA
petition.
Crucial to the determination of any PCRA appeal is the timeliness
of the underlying petition. Thus, we must first determine
whether the instant PCRA petition was timely filed. The
timeliness requirement for PCRA petitions is mandatory and
jurisdictional in nature, and the court may not ignore it in order
to reach the merits of the petition. The question of whether a
petition is timely raises a question of law. Where the petitioner
raises questions of law, our standard of review is de novo and
our scope of review plenary.
A PCRA petition is timely if it is "filed within one year of the
date the judgment [of sentence] becomes final." 42 Pa.C.S.A. §
9545(b)(1). "[A] judgment [of sentence] becomes final at the
3 The PCRA court did not order Appellant to file a statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). It issued an opinion on
July 8, 2016. See Pa.R.A.P. 1925(a).
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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.A. § 9545(b)(3). . . .
Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (case
citations and some quotation marks omitted). Furthermore, "[a]lthough
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. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citation omitted).
Here, Appellant's judgment of sentence became final on July 15, 2001,
ninety days after our Supreme Court denied his petition for allowance of
appeal and Appellant did not petition the United States Supreme Court for a
writ of certiatori. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13.
Appellant therefore had until July 15, 2002 to file a timely PCRA petition.
See Pa.C.S.A. § 9545(b)(1). He filed the instant petition on March 23,
2016. Thus, it was patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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
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this section and has been held by that court to apply
retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii); see Brown, supra at 500. If an
exception applies, a petitioner must file the PCRA petition "within [sixty]
days of the date the claim could have been presented." 42 Pa.C.S.A. §
9545(b)(2). "[Our Supreme] Court has repeatedly stated it is the
appellant's burden to allege and prove that one of the timeliness exceptions
applies." Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008)
(citation omitted).
Here, Appellant claims the applicability of the newly recognized
constitutional right exception to the PCRA time bar. (See Appellant's Brief,
at 7, 11-15); 42 Pa.C.S.A. § 9545(b)(1)(iii). Specifically, he alleges that the
United States Supreme Court's decision in Montgomery, supra (holding
that Miller v. Alabama, 132 S.Ct. 2455 (2012), should be applied
retroactively), mandated retroactive application of Alleyne v. United
States, 133 S.Ct. 2151 (2013). (See Appellant's Brief, at 7, 11-15). We
disagree.
"[A] new rule of constitutional law is applied retroactively to cases on
collateral review only if the United States Supreme Court or the
Pennsylvania Supreme Court specifically holds it to be retroactively
applicable to those cases." Commonwealth v. Whitehawk, 146 A.3d 266,
271 (Pa. Super. 2016) (citation omitted). Neither Court has held that
Alleyne is applied retroactively. Rather, our Supreme Court recently issued
an opinion in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),
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wherein it held "Alleyne does not apply retroactively to cases pending on
collateral review." Washington, supra at 820.
Here, Appellant's argument that the decision of the United States
Supreme Court in Montgomery, supra, causes Alleyne to be applied
retroactively is meritless. In Montgomery, the Supreme Court held "Miller
announced a substantive rule that is retroactive in cases on collateral
review." Montgomery, supra at 732. Its decision did not concern
Alleyne. Thus, Appellant has not met his burden of proving that Alleyne
set forth a new constitutional right that is applicable retroactively to cases
on collateral review. See 42 Pa.C.S.A. § 9545(b)(1)(iii).
Accordingly, we conclude that Appellant has not met his burden of
proving that his untimely PCRA petition fits within one of the three
exceptions to the PCRA's time bar. See Hawkins, supra at 1253; Fahy,
supra at 223. Therefore, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/4/2017
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