Com. v. Smith, W. ( 2016 )

J-S10009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WAYNE ALLEN SMITH
Appellant No. 1610 EDA 2015
Appeal from the PCRA Order May 11, 2015
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000467-2008
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 06, 2016
Appellant, Wayne Allen Smith, appeals pro se from the Pike County
Court of Common Pleas order that dismissed his second petition filed under
the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On
July 19, 2010, a jury convicted Appellant of three counts each of possession
with intent to deliver (“PWID”) and criminal use of a communication facility,
and one count of criminal conspiracy. On September 9, 2010, the court
sentenced Appellant to an aggregate term of ten to twenty years’
imprisonment. This Court affirmed Appellant’s judgment of sentence on
August 15, 2011. See Commonwealth v. Smith, 32 A.3d 833 (Pa.Super.
2011). Appellant sought no further review. In 2012, Appellant filed and
litigated his first PCRA petition without success. This Court affirmed that
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*Retired Senior Judge assigned to the Superior Court.
J-S10009-16
decision on July 3, 2013. See Commonwealth v. Smith, 82 A.3d 1055(Pa.Super. 2013). Appellant pro se filed his second, current PCRA petition
on September 18, 2013, and a supplemental petition on September 20,
2013. The court appointed counsel. On September 24, 2014, appointed
counsel filed a motion to withdraw and a Turner/Finley “no merit” letter.1
That same day, the court issued Pa.R.Crim.P. 907 notice, and Appellant
responded on October 8, 2014. The court allowed appointed counsel to
withdraw and dismissed Appellant’s petition on May 11, 2015. On June 2,
2015, Appellant timely filed a pro se notice of appeal. The court ordered
Appellant to file a Rule 1925(b) statement, and Appellant timely complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008). A PCRA
petition must be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at
the conclusion of direct review or at the expiration of time for seeking
review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the
timeliness provisions allow for very limited circumstances to excuse the late
filing of a petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner
asserting a timeliness exception must also file a petition within 60 days of
the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
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1
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Under the “new facts” exception to the PCRA’s timeliness requirements, the
petitioner must plead and prove: “[T]he facts upon which the claim is
predicated were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii).
Instantly, Appellant’s judgment of sentence became final on September 14,
2011, upon expiration of the time to file an appeal to the Pennsylvania
Supreme Court. See Pa.R.A.P. 903(a). Appellant filed the current PCRA
petition on September 18, 2013, over two years after his judgment of
sentence became final, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Here, Appellant’s claims of ineffective assistance of PCRA
counsel cannot serve to invoke the “new facts” exception to the PCRA’s
timeliness requirements. See Commonwealth v. Bennett, 593 Pa. 382,
930 A.2d 1264 (2007) (stating generally that allegations of PCRA counsel’s
ineffectiveness do not invoke “new fact” exception to PCRA’s time-bar).
Thus, Appellant’s petition remains time-barred.2 Accordingly, we affirm.
Order affirmed.
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2
To the extent Appellant attempts to assert the “new constitutional right”
exception to the PCRA time-bar, based on the decision in Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), this claim
warrants no relief in this case. See Commonwealth v. Newman, 99 A.3d
86 (Pa.Super. 2014) (en banc) (explaining Alleyne applies only to criminal
cases still pending on direct review); Commonwealth v. Miller, 102 A.3d
988 (Pa.Super. 2014) (holding Alleyne did not announce new constitutional
right that has been held to apply retroactively, to satisfy PCRA’s time-bar
exception).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2016
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