Com. v. Hollenback, D., Jr. ( 2016 )

J-S56029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID JAMES HOLLENBACK, JR.
Appellant No. 1816 MDA 2015
Appeal from the PCRA Order September 18, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0002218-2008
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED AUGUST 19, 2016
Appellant, David James Hollenback, Jr., appeals from the order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”) as
untimely. We conclude that the PCRA court correctly found that it lacked
jurisdiction to entertain Hollenback’s petition and that none of Hollenback’s
arguments to the contrary entitle him to relief. We affirm.
Given our resolution of this appeal, a detailed factual recitation of this
matter is unnecessary. We refer the interested reader to this Court’s
memorandum affirming Hollenback’s judgment of sentence. See
Commonwealth v. Hollenback, No. 1636 MDA 2010, at 1-6 (Pa. Super.,
filed 10/14/11) (unpublished memorandum).
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S56029-16
After a bench trial, Hollenback was convicted of multiple counts arising
from the sexual abuse of a minor relative. The trial court imposed a
sentence of imprisonment of 38 to 76 years. This Court subsequently
affirmed the judgment of sentence and the Supreme Court of Pennsylvania
denied allowance of appeal on September 17, 2012.
Over two years later, on February 17, 2015, Hollenback filed the
instant PCRA petition pro se. Counsel was appointed to represent him and,
after a hearing, the PCRA court dismissed the petition as untimely. This
timely appeal followed.
On appeal, Hollenback concedes that his petition was facially untimely.
See Appellant’s Brief, at 14. However, he contends that he qualifies for the
newly discovered fact exception to the PCRA’s timebar. See 42 Pa.C.S.A. §
9545(b)(1)(ii). The fact upon which he relies is the Supreme Court of the
United States’ decision in Alleyne v. United States, 133 S.Ct. 2151(2013). He asserts that since he was incarcerated at the time, he did not
discover Alleyne until February 4, 2015. He thus contends that his petition,
filed approximately two weeks later, satisfies the 60 day window of 42
Pa.C.S.A. § 9545(b)(2). It does not.
Decisional law, such as Alleyne, is not a “fact” under section
9545(b)(1)(ii). See Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.
2011); Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012).
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Furthermore, our Supreme Court recently held that “Alleyne does not
apply retroactively to cases pending on collateral review….”
Commonwealth v. Washington, ___ A.3d ___, ___, 2016 WL 3909088,
*8 (Pa., filed July 19, 2016).
Hollenback has failed to establish the applicability of an exception to
the PCRA’s time bar, and the PCRA court correctly found that it had no
jurisdiction to entertain his petition. This Court has soundly rejected
Hollenback’s arguments that Pennsylvania courts always retain jurisdiction
to strike an illegal sentence. See, e.g., Commonwealth v. Miller, 102 A.3d
988, 995 (Pa. Super. 2014) (“[T]hough not technically waivable, a legality
[of sentence] claim may nevertheless be lost should it be raised ... in an
untimely PCRA petition for which no time-bar exception applies, thus
depriving the court of jurisdiction over the claim.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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