Com. v. Tierno, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
WILLIAM JOHN TIERNO
Appellant No. 974 MDA 2015
Appeal from the PCRA Order May 18, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000866-2009
CP-54-CR-0001290-2009
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 23, 2016
William John Tierno appeals from the order entered May 18, 2015, in
the Court of Common Pleas of Schuylkill County, denying his second petition
filed pursuant to the Pennsylvania Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Tierno seeks relief from the judgment of sentence of
an aggregate term of 12 to 24 years’ imprisonment imposed on August 20,
2010, following his convictions in two cases. At Criminal Docket No. 866-
2009, Tierno was convicted of robbery, criminal conspiracy, theft by unlawful
taking, and receiving stolen property.1 At Criminal Docket No. 1290-2009,
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*
Retired Senior Judge assigned to the Superior Court.
1
See 18 Pa.C.S. §§ 3701(a)(1)(ii), 903(a)(1), 3921(a), 3925(a),
respectively.
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Tierno was also convicted of robbery, criminal conspiracy, theft by unlawful
taking, receiving stolen property, as well as terroristic threats.2 On appeal,
Tierno argues that the PCRA court erred in denying his second petition for
post-conviction relief following the Pennsylvania Supreme Court decision in
Commonwealth v. Armstrong, 107 A.3d 735 (Pa. 2014), affirming, in
part, Commonwealth v. Armstrong, 74 A.3d 228 (Pa. Super. 2013).
Based upon the following, we affirm.
In Tierno’s first PCRA petition, this Court quoted the PCRA court’s
description of the facts and procedural history at Commonwealth v.
Tierno, 81 A.3d 1005 (Pa Super. 2013) (unpublished memorandum, at 1-6)
(citations omitted), appeal denied, 83 A.3d 415 (Pa. 2014). This Court
affirmed the denial of PCRA relief, concluding that “trial counsels’ advice to
[Tierno] to accept a plea deal was competent, and thus, his guilty plea was
knowing, voluntary, and intelligently entered.” Id. at 12.
On February 23, 2015, Tierno filed this second pro se Post Conviction
Relief Act petition. Thereafter, on March 24, 2015, the PCRA court issued
notice of intention to dismiss pursuant to Pa.R.Crim.P. 907. Following the
filing of objections by Tierno to the Rule 907 notice, the PCRA court
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2
See 18 Pa.C.S. §§ 3701(a)(1)(ii), 903(a)(1), 3921(a), 3925(a), and
2706(a) respectively.
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dismissed his PCRA petition on May 18, 2015. Tierno then filed this timely
appeal.3
On appeal, Tierno states his sole issue as follows:
When the Pennsylvania Supreme Court issued its decision in
[Armstrong], making clear that a criminal defendant must first
be sentenced as a second-strike offender before being sentenced
as a third-strike offender, did the lower Court err in not finding
this met the threshold requirement under 42 Pa.C.S. §
9545(b)(1)(ii), and should this new authority have provided the
basis for the grant of the PCRA petition and the withdrawal of
Appellant’s guilty plea?
Tierno’s Brief at 2.4, 5
Our standard of review is well settled: “In reviewing the denial of PCRA
relief, we examine whether the PCRA court’s determination is supported by
the record and free of legal error.” Commonwealth v. Taylor, 67 A.3d
1245, 1248 (Pa. 2014)(quotations and citation omitted), cert. denied, 134 S.
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3
On June 9, 2015, the PCRA court ordered Tierno to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Tierno
complied with the PCRA court’s directive, and filed a concise statement on
June 26, 2015.
4
Tierno only generally asserts a timeliness exception under 42 Pa.C.S. §
9545(b)(1) in his concise statement. Although Tierno cites 42 Pa.C.S. §
9545(b)(1)(ii) in his “Statement of Questions Presented,” it is clear from the
argument section in his brief that he is relying on 9545(b)(1)(iii). See
Tierno’s Brief at 2; 11-17.
5
To the extent Tierno relies on § 9545(b)(1)(ii), judicial decisions do not
equate to newly discovered facts. See Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa. Super. 2013).
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Ct. 2695 (2014). “The PCRA timeliness requirement, however, is mandatory
and jurisdictional in nature.” Id. (citation omitted).
Generally, all PCRA petitions must be filed within one year of the date
the judgment of sentence becomes final, unless the petition alleges, and the
petitioner proves, that one of the three enumerated exceptions to the time
for filing requirement is met. See 42 Pa.C.S. § 9545(b)(1). The PCRA
exceptions that allow for review of an untimely petition are as follows: (1)
governmental interference; (2) the discovery of previously unknown facts;
and (3) a newly-recognized constitutional right. See 42 Pa.C.S. §
9545(b)(1)(i)-(iii). Based on Armstrong, Tierno relies on the constitutional
right exception, set forth at 42 Pa.C.S. § 9545(b)(1)(iii). Section 9545(b)(2)
states: “Any petition invoking an exception provided in paragraph (1) shall
be filed within 60 days of the date the claim could have been presented.” 42
Pa.C.S. § 9545(b)(2).
Here, Tierno’s petition is patently untimely. This Court dismissed
Tierno’s appeal on December 29, 2011, and the judgment of sentence
became final upon the expiration of the 30 day period for filing a notice of
appeal to the Pennsylvania Supreme Court, on Monday, January 30, 2012.
Therefore, Tierno had until January 30, 2013 to file a timely petition. Tierno
does not dispute that his petition was untimely filed on February 23, 2015.
His claim that the constitutional right exception applies to this petition fails
for the following reasons.
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First, subsection 9545(b)(1)(iii) applies where “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). In Armstrong, the Pennsylvania Supreme Court
did not recognize a new constitutional right as required by 42 Pa.C.S. §
9545(b)(1)(iii). Rather, the Court in Armstrong affirmed the Superior
Court’s discussion that dealt with a question of statutory construction of the
mandatory minimum provision at 42 Pa.C.S. § 9714(a)(2). Additionally, the
Pennsylvania Supreme Court has not held that Armstrong is to be applied
retroactively to cases in which the judgment of sentence had become final.
Because the Armstrong Court did not recognize a new constitutional right,
much less one that was held to apply retroactively, Tierno cannot be
awarded relief on its grounds.
Moreover, Tierno’s claim has already been litigated in his first PCRA
petition, where a second evidentiary hearing was held. See Tierno, supra,
81 A.3d 1005 (Pa Super. 2013) (unpublished memorandum, at 6), appeal
denied, 83 A.3d 415 (Pa. 2014). This Court upheld the PCRA court’s decision
that Tierno was competently counselled that the third strike provision
applied to his sentence. Id. at 11-12. The decision in Armstrong stands for
the proposition that a defendant cannot be sentenced under the third strike
provision where the defendant’s second strike offense was committed before
he was convicted and sentenced as a first strike offender. That decision does
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not affect the legality of Tierno’s sentence, as Tierno was already a two
strike offender before his present conviction. See N.T., 3/29/2012, at 9-10
(convictions from crimes of violence in 1980 and 1993).
Accordingly, we agree with the PCRA court that the instant PCRA
petition is without merit. Therefore, we affirm the order of the PCRA court
denying Tierno’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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