Com. v. Denial, W. ( 2016 )

J-S57039-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM E. DENIAL, :
:
Appellant : No. 207 WDA 2016
Appeal from the PCRA Order January 26, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001957-1993
CP-25-CR-0001958-1993
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 29, 2016
William E. Denial (Appellant) appeals from the January 26, 2016 order
which dismissed his fifth petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In 1994, following convictions for various crimes related to Appellant’s
sexual abuse of his children, Appellant was sentenced to an aggregate term
of nine and one half to 24 years of imprisonment, followed by ten years of
probation. This Court denied Appellant relief on direct appeal, and his
judgment of sentence became final in 1996 after our Supreme Court denied
his petition for allowance of appeal. Commonwealth v. Denial, 663 A.2d
246 (Pa. Super. 1995) (unpublished memorandum), appeal denied, 670
*Retired Senior Judge assigned to the Superior Court.
J-S57039-16
A.2d 140 (Pa. 1995). Appellant’s first four PCRA petitions resulted in no
relief.
Appellant filed the petition that is the subject of the instant appeal on
August 13, 2015. Therein, he claimed that he is entitled to relief in the form
of resentencing because his sentence is illegal under Alleyne v. United
States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that a fact which
triggers the imposition of a mandatory minimum sentence is an element of
the crime and must, therefore, be determined beyond a reasonable doubt by
a jury), and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)
(applying Alleyne to hold that the mandatory minimum sentence found at
18 Pa.C.S. § 6317 (relating to drug activity in a school zone) is
unconstitutional). PCRA Petition, 8/13/2015, at ¶¶ 3, 5-7.
The PCRA court issued notice of its intent to dismiss the petition as
untimely filed without a hearing, to which Appellant filed a response in
opposition. On January 26, 2016, the PCRA court entered an order
dismissing Appellant’s petition. Appellant timely filed a notice of appeal, and
both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant claims, inter alia, that the PCRA court erred in
not applying the Alleyne decision retroactively. Appellant’s Brief at 15.
However, before we may address Appellant’s substantive arguments, we
must determine whether his PCRA petition was filed timely.
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The timeliness of a post-conviction petition is jurisdictional. See,
e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f
a PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition. Without jurisdiction, we simply do not have
the legal authority to address the substantive claims.”).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b).
It is clear that Appellant’s 2015 petition is facially untimely: his
judgment of sentence became final in 1996. However, Appellant alleged
that his petition satisfied the following timeliness exception: “‘the facts upon
which the claim is predicated were unknown to the Petitioner and could not
be ascertained by the exercise of due diligence.’” PCRA Petition, 8/13/2015,
at 1 (pages unnumbered) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)).
“Our Courts have expressly rejected the notion that judicial decisions
can be considered newly-discovered facts which would invoke the
protections afforded by section 9545(b)(1)(ii).” Commonwealth v.
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Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citing Commonwealth v.
Watts, 23 A.3d 980, 986 (Pa. 2011)).
Nor does Appellant’s reliance upon Hopkins satisfy the newly-
recognized-constitutional-right timeliness exception found at 42 Pa.C.S.
§ 9545(b)(1)(iii), as the Hopkins Court did not recognize a new
constitutional right, let alone hold that any such right applied retroactively;
rather, it merely applied Alleyne to hold that a particular mandatory
minimum sentence not applied to Appellant was unconstitutional.1
Furthermore, our Supreme Court has held that Alleyne itself does not apply
retroactively to cases on collateral review. Commonwealth v.
Washington, -- A.3d --, 2016 WL 3909088 (Pa. July 19, 2016).
Thus, the Hopkins decision does not assist Appellant in establishing a
timeliness exception to the PCRA’s limitations, and the PCRA court properly
dismissed the petition for lack of jurisdiction.
Order affirmed.
1
However, while Appellant’s appeal was pending, our Supreme Court
decided Commonwealth v. Wolfe, 68 MAP 2015, 2016 WL 3388530 (Pa.
June 20, 2016), a case involving 42 Pa.C.S. § 9718, the statute under which
Appellant was sentenced. In Wolfe, the Court reaffirmed Hopkins and held
that Section 9718 “is irremediably unconstitutional on its face, non-
severable, and void” under Alleyne. See Wolfe, 2016 WL 3388530 at *10.
Nonetheless, Wolfe is unavailing to Appellant in establishing a PCRA
timeliness exception for the same reasons as Hopkins fails to do so.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2016
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