Com. v. Perez, M. ( 2016 )

J-S70027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARK A. PEREZ
Appellant No. 1062 EDA 2016
Appeal from the PCRA Order March 21, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007249-2009
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2016
Mark A. Perez appeals, pro se, from the order entered on March 21,
2016, in the Court of Common Pleas of Montgomery County, denying him
relief on his third petition filed pursuant to the Post Conviction Relief Act, 42
Pa.C.S. § 9541 et seq. The PCRA court determined Perez’s petition was
untimely and none of the statutory timeliness exceptions applied. 1 In this
timely appeal, Perez argues his sentence is illegal under Alleyne v. U.S.,
___U.S.___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) as made retroactive
by the application of Montgomery v. Louisiana, ___U.S.___, 136 S.Ct.
____________________________________________
1
The PCRA court denied Perez relief without a hearing after filing proper
notice of intent pursuant to Pa.R.Crim.P 907.
J-S70027-16
718, 193 L.Ed.2d 599 (2016). After a thorough review of the submissions
by the parties, relevant law, and the certified record, we affirm.
We adopt the PCRA court’s recitation of the factual and procedural
history of this matter as related on pages 1-3 of the May 18, 2016, Pa.R.A.P.
1925(a) opinion authored by the Honorable William R. Carpenter. For ease
of reference, we note that Perez entered into a negotiated guilty plea on
June 20, 2011, pleading guilty to charges of aggravated assault, robbery,
theft by unlawful taking, burglary and persons not to possess a firearm. He
agreed to an aggregate term of 15 to 30 years’ incarceration. 2 Perez filed a
direct appeal, which afforded him no relief, as well as two prior untimely
PCRA petitions. Perez filed the instant petition on February 23, 2016,
claiming this petition was timely due to the newly announced constitutional
right in Montgomery v. Louisiana, supra, which required the 2013
Alleyne v. U.S., supra, decision to be applied retroactively in all cases.
Perez’s argument fails for multiple reasons.
Our standard of review for an order denying a petitioner relief
pursuant to the PCRA is well settled and often repeated.
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court's determination, and
whether the PCRA court's determination is free of legal error.
____________________________________________
2
Specifically, Perez’s sentence was 10-20 years’ incarceration for robbery,
5-10 years’ incarceration for burglary, consecutive to the robbery sentence,
and 5-10 years’ incarceration for the firearms charge, concurrent to the
burglary sentence.
-2-
J-S70027-16
Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.
2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012) (citing
Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super.
2005)). The PCRA court's findings will not be disturbed unless
there is no support for the findings in the certified record. Id.(citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
Super. 2001)).
It is undisputed that a PCRA petition must be filed within one
year of the date that the judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order
to reach the merits of the petition. Commonwealth v. Murray,
561 Pa. 1, 753 A.2d 201, 203 (2000). A judgment of sentence
“becomes final at the 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).
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the three
limited exceptions to the time for filing the petition, set forth at
42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met. A petition
invoking one of these exceptions must be filed within sixty days
of the date the claim could first have been presented. 42
Pa.C.S.A. § 9545(b)(2). In order to be entitled to the exceptions
to the PCRA's one-year filing deadline, “the petitioner must plead
and prove specific facts that demonstrate his claim was raised
within the sixty-day time frame” under section 9545(b)(2). Carr,
768 A.2d at 1167.
Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016).
As noted above, at issue is whether Perez is entitled to the timeliness
exception found in Section 9545(b)(1)(iii).3 The PCRA court determined
____________________________________________
3
Specifically, the exception applies 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.” 42
Pa.C.S. § 9545(b)(1)(iii).
-3-
J-S70027-16
Perez was not entitled to the application of this timeliness exception because
(1) Perez was not sentenced to a mandatory minimum sentence; (2)
Alleyne is not entitled to retroactive application; and (3) Montgomery
ruled that Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012) (forbidding automatic life sentences without the possibility of
parole to juveniles) was retroactive, and Perez was not 18 or younger when
he committed this crime nor was sentenced to life imprisonment. We agree
with the PCRA court that no relief is due
The United States Supreme Court decision in Alleyne held that “any
fact that, by law, increases the penalty is an “element” that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S.Ct. at 2155. The mandatory minimum sentences to which Alleyne has
been applied involved statutory provisions that increased the minimum
sentence pursuant to facts that had been determined by the trial court at the
time of sentencing. We have reviewed Perez’s PCRA petition, his appellant’s
brief, and the certified record and can find no indication that Perez was
subjected to a mandatory minimum sentence. Accordingly, there is no basis
for Perez to claim that he is entitled to have Alleyne applied retroactively to
his sentence.
Even if Perez were subjected to a mandatory minimum sentence, he
would not be entitled to relief. Alleyne is only subject to limited retroactive
application. This means Alleyne is retroactively applicable only to those
criminal cases that were still pending on direct appeal when Alleyne was
-4-
J-S70027-16
decided. See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(en banc). Perez’s direct appeal terminated on September 13, 2012, when
the time to seek review by the Pennsylvania Supreme Court expired. The
Alleyne decision was published on June 17, 2013. Clearly, Perez is not
entitled to the limited retroactive application of Alleyne.
However, Perez argues that the recent United States Supreme Court
decision of Montgomery v. Louisiana, supra, requires all new substantive
rules of constitutional law be fully retroactive.4 Nevertheless, the
Montgomery decision would not save Perez’s petition. In Commonwealth
v. Washington, 142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court
determined the Alleyne decision announced neither a new substantive nor
watershed procedural rule (holding Alleyne does not apply on collateral
review to cases in which the judgment of sentence has become final).
Therefore, Montgomery does not require the fully retroactive application of
Alleyne.
Because the record supports the PCRA court’s determination, which is
free from legal error, we affirm the denial of Perez’s PCRA petition.
Order affirmed.
____________________________________________
4
We note Perez has met 60-day statutory filing requirements of the PCRA.
See 42 Pa.C.S. § 9545(b)(2). Montgomery was decided on January 25,
2016 and revised on January 27, 2016. Perez filed the instant petition on
February 23, 2016, well within the 60-day limit.
-5-
J-S70027-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
-6-