Com. v. Stahley, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
MICHAEL B. STAHLEY :
APPELLANT :
:
: No. 632 MDA 2016
Appeal from the PCRA Order April 4, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000910-2004
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 23, 2016
Appellant, Michael B. Stahley, appeals from the April 4. 2016 Order
dismissing his amended Petition pursuant to the Post Conviction Relief Act
(PCRA),42 Pa.C.S. §§ 9541-9546. We affirm.
A jury found Appellant guilty of forcible rape, involuntary deviate
sexual intercourse, simple assault, burglary, terroristic threats, and theft
arising from a break-in and sexual assault that occurred on or about May 21,
2004. On October 2, 2006, the trial court adjudicated Appellant a sexually
violent predator (“SVP”), and imposed an aggregate sentence of twenty-two
and one-half years’ to forty-seven and one-half years’ imprisonment. This
*
Retired Senior Judge assigned to the Superior Court.
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Court affirmed Appellant’s Judgment of Sentence. Commonwealth v.
Stahley, 965 A.2d 303 (Pa. Super. 2008) (unpublished memorandum). The
Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of
Appeal on May 2, 2011. Appellant’s Judgment of Sentence became final,
therefore, on August 1, 2011. See Commonwealth v. Harris, 972 A.2d
1196, 1200 (Pa. Super. 2009); see also US. Sup. Ct. R. 13.
On March 20, 2009, while Appellant’s Petition for Allowance of Appeal
was pending in the Supreme Court, Appellant filed his first PCRA Petition.
Following an evidentiary hearing, the PCRA court denied Appellant relief and
dismissed Appellant’s Petition. Appellant timely appealed from the order
denying his PCRA Petition, and this Court affirmed. Commonwealth v.
Stahley, 15 A.3d 535 (Pa. Super. 2010) (unpublished memorandum).
On March 4, 2016, Appellant filed the instant pro se PCRA Petition. On
March 9, 2016, the PCRA court issued an Order and Notice of Intent to
dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P.
907, concluding that Appellant’s Petition was untimely filed and Appellant
had failed to plead and prove one of the statutory exceptions to the PCRA’s
time-bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
On March 23, 2016, Appellant filed an Answer to the Notice of Intent
to dismiss his PCRA Petition. On April 4, 2016, the PCRA court dismissed
Appellant’s petition. Appellant timely appealed. Both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
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Appellant raises the following two issues on appeal:
1. Did the trial court err when it dismissed the PCRA when
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. The Supreme Court of the United
States or the Commonwealth of Pennsylvania has
recognized the following retroactive Constitutional rights
after my period for filing: The mandatory sentence is
unconstitutional as per Supreme court of Pa. The Superior
court also states that cases under 42 Pa.C.S. 9718 is
unconstitutional. Based on United States Supreme Court
decision on the mandatory sentences contained in section
9718 is unconstitutional. Mandatory minimum Sentencing
statutes in Pa. containing the language appearing in
section 9718 (c) “are void in their entirely”.
2. Pursuant to 42 Pa.C.S. 9545 (b) and that it does not
meet any of the exceptions to the timeliness requirements.
Because of an illegal sentence “is primarily restricted to
those instances in which the term of the prisoner’s
sentence is not authorized by the statutes which govern
the penalty” for the crime of conviction. Collateral relief
courts will, however, consider a motion to correct an illegal
sentence based on a decision of the court holding that the
eighth Amendment of the Federal Constitution prohibits a
punishment for a type of crime or a class of offenders.
The defendant had been prosecuted was unconstitutional
or because the sentence was one the Court could not
lawfully impose. “A conviction or sentence imposed in
violation of a substantive rule is not just erroneous but
contrary to law and, as a result, void. But a majority of
this court, eager to reach the Merits of this case, resolves
the question of our jurisdiction by deciding that the
Constitution requires State Post-Conviction Courts to adopt
Teague’s exception for so-called “substantive” NEW RULES
and to provide State law remedies for The violations of
those rules to prisoners whose sentences have long ago
became final. This conscription into Federal service of
State Post-Conviction Courts is nothing short of
astonishing.
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Appellant’s Brief at 1 (verbatim).
We note at the outset that Appellant’s Brief is, at best, confusing, and,
at worst, incomprehensible. However, it appears that Appellant is
essentially arguing that the PCRA court erred in dismissing his Petition as
untimely because he is serving an illegal mandatory minimum sentence. Id.
at 6-7.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). Before addressing the merits of Appellant’s claims, however, we
must first determine whether we have jurisdiction to entertain the
underlying PCRA Petition. No court has jurisdiction to hear an untimely
PCRA petition. Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008).
Appellant attempts to invoke our jurisdiction by averring that he is
entitled to relief under the PCRA as a result of the constitutional right
recognized in Alleyne v. United States, 133 S.Ct. 2151, 2156, 2164
(2013), and its progeny. This claim fails.
A PCRA petition must be filed within one year of the date the
underlying judgment becomes final; a judgment is deemed final at the
conclusion of direct review or at the expiration of time for seeking review.
42 Pa.C.S. § 9545(b)(1), (3). The statutory exceptions to the timeliness
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requirement allow for very limited circumstances to excuse the late filing of
a petition. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).
Here, Appellant appears to be invoking the timeliness exception found
in Section 9545(b)(1)(iii). Appellant’s Brief at 7. In order to obtain relief
under this subsection, a petitioner must plead and prove that “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.” 42 Pa.C.S. § 9545(b)(1)(iii). 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. § 9545(b)(2).
With respect to Appellant’s claim on appeal the trial court opined as
follows:
Here, [Appellant] alleges that his sentence is
unconstitutional pursuant to the Pennsylvania Superior
Court’s decision in Commonwealth v. Wolfe, wherein the
Court held that mandatory sentences imposed pursuant to
42 Pa.C.S. § 9718(a)(1) are unconstitutional and not
severable in light of [Alleyne, supra]. Wolfe, 106 A.3d
800, 806 (Pa. Super. 2014), appeal granted, 121 A.3d 433(Pa. 2015). Accordingly [Appellant] attacks the
constitutionality of his sentence under the third PCRA time
bar exception. See 42 Pa.C.S. § 9545(b)(1)(iii).
[Appellant’s] argument fails on a number of fronts.
Initially, even if this [c]ourt were to determine that
Alleyne created a new constitutional right, and therefore
implicate[s] one of the exceptions to the PCRA time bar,
the Superior Court has unequivocally held that Alleyne
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does not apply retroactively to cases on collateral
review.[1] See Commonwealth v. Miller, 102 A.3d 988,
995-96 (Pa. Super. 2014). As [Appellant’s] judgment
became final well before Alleyne was decided, this
argument is meritless and this [c]ourt lacks jurisdiction to
consider [Appellant’s] instant Petition. See
Commonwealth v. Hall, [771 A.2d 1232 (Pa. 2001).]
Furthermore, 42 Pa.C.S. § 9545(b)(2) requires defendant’s
[sic] to file a PCRA [P]etition within sixty (60) days of the
date the claim could have been presented. Alleyne was
decided on June 17, 2013, more than two and one half
years before [Appellant] filed the instant PCRA Petition.
Wolfe was decided on December 24, 2014, almost one
and one half years before [Appellant] filed the instant
PCRA Petition. Accordingly, even if Alleyne did create a
new constitutional right and it was determined to apply
retroactively, [Appellant’s] instant petition is untimely
pursuant to 42 Pa.C.S. § 9545(b)(2).
Finally, [Appellant] alleges that he was sentenced under 42
Pa.C.S. § 9718(a)(1) which concerns offenses against
infant persons. [Appellant] is wrong. The victim in the
underlying case was thirty (30) years-old at the time the
offense was committed. See Motion for PCRA Restoration
of Appeal Rights, ¶ 18(a), 9/17/07. [Appellant] was not
sentenced under 42 Pa.C.S. § 9718(a)(1), and no mention
of 42 Pa.C.S. § 9718(a)(1) exists in the record. As such,
even if the instant PCRA [Petition] satisfied the
aforementioned requirements, [Appellant’s] argument fails
on substantive grounds.
PCRA Opinion, 6/6/16, at 4-5 (unpaginated, footnotes omitted).
We agree with the PCRA court’s conclusion that Appellant’s instant
PCRA petition was patently untimely and that he failed to prove the
applicability of any of the PCRA’s timeliness exceptions. Therefore, the PCRA
1
Moreover, the Pennsylvania Supreme Court has explicitly held that Alleyne
does not apply retroactively on collateral review. Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016).
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court lacked jurisdiction to address his claims and properly dismissed his
Petition seeking relief under Alleyne. Furthermore, our review of the record
confirms that Appellant was not sentenced under 42 Pa.C.S. § 9718.
Accordingly, even if he had timely filed his PCRA Petition, we agree with the
PCRA court that he would likewise not be entitled to relief on substantive
grounds.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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