Com. v. Seretti, J. ( 2015 )

J-S55028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA ADAM SERETTI,
Appellant No. 426 WDA 2015
Appeal from the PCRA Order Entered February 13, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0001099-2011
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 14, 2015
Appellant, Joshua Adam Seretti, appeals pro se from the lower court’s
February 13, 2015 order denying, as untimely, his second petition for relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
In June of 2011, Appellant was charged with two counts each of
possession of a controlled substance (heroin), possession with intent to
deliver a controlled substance (heroin), and delivery of a controlled
substance (heroin). He was also charged with single counts of criminal
conspiracy and criminal use of a communication facility. Following a jury
trial in March of 2012, Appellant was convicted of all of those charges. On
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S55028-15
May 10, 2012, he was sentenced to an aggregate term of 99 to 198 months’
incarceration. Based on the weight of the heroin delivered by Appellant on
two separate occasions, the court imposed two mandatory minimum terms
of incarceration pursuant to 18 Pa.C.S. § 7508(a)(7).1
Appellant did not file a direct appeal from his judgment of sentence.
However, on October 23, 2012, he filed a pro se PCRA petition raising
several claims of ineffective assistance of trial counsel. PCRA counsel was
appointed and an evidentiary hearing was held. Ultimately, the PCRA court
denied Appellant’s petition. He filed a timely notice of appeal and, after this
Court affirmed the order denying his petition, our Supreme Court denied his
petition for permission to appeal. Commonwealth v. Seretti, 106 A.3d
155 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 104
A.3d 525 (Pa. 2014).
On January 6, 2015, Appellant filed a second pro se PCRA petition,
which underlies the present appeal. In that petition, Appellant asserted that
his two mandatory minimum sentences are illegal pursuant to Alleyne.2 On
____________________________________________
1
In Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014), this Court
held that section 7508 is unconstitutional in its entirety, pursuant to the
United States Supreme Court’s decision in Alleyne v. United States, 133
S.Ct. 2151 (2013), which we discuss in further detail, infra.
2
Appellant styled his petition as a “Writ of Habeas Corpus.” However,
because he challenged the legality of his sentence, which is a cognizable
PCRA claim, the court properly treated his filing as a PCRA petition. See
Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998) (“[T]he PCRA
subsumes the remedy of habeas corpus with respect to remedies offered
(Footnote Continued Next Page)
-2-
J-S55028-15
January 22, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition without a hearing, based on the
petition’s untimeliness. Appellant filed a pro se response, essentially
reiterating that his mandatory minimum sentences are illegal under
Alleyne. On February 13, 2015, the PCRA court issued an order denying
Appellant’s petition as untimely.
Appellant filed a timely, pro se notice of appeal, as well as a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Herein, he
presents two issues for our review:
I. Was the trial court’s imposition of the mandatory minimum
sentence under 18 Pa.C.S.A. § 7508(a)(7)(ii) illegal when the
factfinder never [found] the facts necassary [sic] beyond a
reasonable doubt for the imposistion [sic] of the mandatory
minimum[s,] a[s] required by the United States Supreme Court
in Alleyne…?
II. Was the decision made by the [United States] Supreme Court
via the Supremcy [sic] Clause and our state judges bound by the
law of the lan[d] namely that Alleyne…, a non-waivable
unconstitutional applied mandatory minimum sentence?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
_______________________
(Footnote Continued)
under the PCRA….”); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.
Super. 2004) (“Issues concerning the legality of sentence are cognizable
under the PCRA.”) (citation omitted).
-3-
J-S55028-15
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of
sentence becomes final, unless one of the exceptions set forth in 42 Pa.C.S.
§ 9545(b)(1)(i)-(iii) applies. That section states, in relevant part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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 this section and has been
held by that court to apply retroactively.
-4-
J-S55028-15
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant did not file a direct appeal and, therefore, his
judgment of sentence became final on June 9, 2012, thirty days after the
imposition of his sentence. See 42 Pa.C.S. § 9545(b)(3) (stating judgment
of sentence becomes final at the conclusion of direct review or the expiration
of the time for seeking the review); Pa.R.A.P. 903(a) (requiring notice of
appeal to “be filed within 30 days after the entry of the order from which the
appeal is taken”). Thus, Appellant had until June 9, 2013, to file a timely
petition, making his January 6, 2015 petition patently untimely.
Accordingly, for this Court to have jurisdiction to review the merits of
Appellant’s petition, he must prove that he meets one of the exceptions to
the timeliness requirements set forth in 42 Pa.C.S. § 9545(b). This is true
despite the fact that Appellant’s petition presents a challenge to the legality
of his sentence. See Commonwealth v. Fowler, 930 A.2d 586, 592
(2007) (“[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.”).
In his first issue, Appellant argues that his two mandatory minimum
sentences are illegal pursuant to Alleyne, in which the United States
Supreme Court held that “facts that increase mandatory minimum sentences
must be submitted to the jury” and found beyond a reasonable doubt.
-5-
J-S55028-15
Alleyne, 131 S.Ct. at 2163. In Appellant’s second issue, he avers that he is
“entitled to the retroactive application of Alleyne” because “[t]he
Constitution and the laws passed pursuant to it are Supreme Laws of the
Land,” and because the PCRA court’s order denying his petition is “in
conflict” with Commonwealth v. Newman, 999 A.3d 86 (Pa. 2014).
Appellant’s Brief at 13 (emphasis omitted).
Appellant’s claims fail to prove that he has satisfied the timeliness
exception of section 9545(b)(1)(iii). This Court recently stated:
Even assuming that Alleyne did announce a new constitutional
right, neither our Supreme Court, nor the United States
Supreme Court has held that Alleyne is to be applied
retroactively to cases in which the judgment of sentence had
become final. This is fatal to Appellant's argument regarding the
PCRA time-bar. This Court has recognized that a new rule of
constitutional law is applied retroactively to cases on collateral
review only if the United States Supreme Court or our Supreme
Court specifically holds it to be retroactively applicable to those
cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor,
933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes
of subsection (iii), the language ‘has been held by that court to
apply retroactively’ means the court announcing the rule must
have also ruled on the retroactivity of the new constitutional
right, before the petitioner can assert retroactive application of
the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715,
951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy
the new constitutional right exception to the time-bar.
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Since
Miller, neither our Supreme Court nor the United States Supreme Court has
-6-
J-S55028-15
held that Alleyne applies retroactively. As such, Appellant cannot satisfy
the exception set forth in section 9545(b)(1)(iii).
Additionally, Appellant’s claim that “[t]he Constitution and the laws
passed pursuant to it are Supreme Laws of the Land” does not satisfy
section 9545(b)(1)(iii), nor any other exception to the PCRA’s one-year
time-bar. Finally, while Appellant argues that the PCRA court’s denial of his
legality of sentencing challenge is in conflict with Newman, he fails to
recognize that Newman involved the retroactivity of Alleyne in a direct
appeal, not in an untimely-filed PCRA petition. See Newman, 99 A.3d at
90.
In sum, Appellant has not proven that any of the timeliness exceptions
set forth in section 9545(b)(1) apply to his case. Thus, we ascertain no
error in the PCRA court’s decision to deny Appellant’s untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
-7-