Com. v. Senessie-Middleton, H. ( 2016 )


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  • J-S40013-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    HINDOVEI SENESSIE-MIDDLETON
    Appellant                 No. 2885 EDA 2015
    Appeal from the PCRA Order August 31, 2015
    In the Court of Common Pleas of Delaware County
    Criminal Division at No(s): CP-23-CR-0007175-2012
    BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.
    MEMORANDUM BY BOWES, J.:                              FILED JULY 20, 2016
    Hindovei Senessie-Middleton appeals from the August 31, 2015 order
    dismissing his second PCRA petition as untimely filed. We affirm.
    On May 25, 2012, Darby Borough police officers found Appellant in
    possession of a Bersa Firestorm .380 caliber gun that had its serial number
    obliterated. Police also recovered from Appellant’s shoes nine clear glassine
    bags containing marijuana.      Appellant was charged with various offenses,
    including persons not to possess firearms. 18 Pa.C.S. § 6105. On January
    18, 2013, Appellant entered a negotiated guilty plea to that offense, a
    second-degree    felony    carrying   a   maximum   sentence   of   ten   years
    incarceration.   Appellant was sentenced that same day to the negotiated
    term of imprisonment of five to ten years.          No mandatory minimum
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    sentence was involved in Appellant’s sentencing; he received the statutorily-
    authorized maximum sentence for a second-degree felony. The record also
    establishes that Appellant’s prior record score was repeat felony offender so
    that the sentence in question was also within the sentencing guidelines.
    Appellant did not file a direct appeal.
    On August 4, 2014, Appellant filed a PCRA petition suggesting that he
    was entitled to relief under Alleyne v. United States, 
    133 S.Ct. 2151
    (2013), and Apprendi v. New Jersey, 
    530 U.S. 466
     (2000). In the latter
    case, the United States Supreme Court held, “[A]ny fact (other than prior
    conviction) that increases the maximum penalty for a crime must be charged
    in an indictment, submitted to a jury, and proven beyond a reasonable
    doubt.” 
    Id. at 476
     (quoting Jones v. United States, 
    526 U.S. 227
    , 243, n.
    6 (1999)).    Alleyne applied the holding of Apprendi in the mandatory
    minimum sentencing context. Under Alleyne, any fact, other than a prior
    conviction, that results in the imposition of a mandatory minimum sentence
    must be submitted to a jury and proven beyond a reasonable doubt.
    After Appellant filed his PCRA petition, counsel was appointed.
    Counsel presented a petition to withdraw and no-merit letter pursuant to
    Commonwealth         v.   Turner,     
    544 A.2d 927
       (Pa.   1988),   and
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.Super. 1988) (en banc). In
    his no-merit letter, counsel concluded that the August 4, 2014 PCRA petition
    was untimely.     On January 23, 2015, the trial court granted counsel’s
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    application to withdraw and issued notice of its intent to dismiss the petition
    without a hearing. The petition was dismissed on February 20, 2015.
    On July 29, 2015, Appellant filed a second pro se PCRA petition,
    averring that he was sentenced pursuant to an invalid mandatory minimum
    sentence.    Appellant invoked Commonwealth v. Hopkins, 
    117 A.3d 247
    (Pa. 2015), wherein our Supreme Court, pursuant to Alleyne, struck down
    the mandatory minimum sentencing provision contained in 18 Pa.C.S. §
    6317.
    Appellant’s July 29, 2015 PCRA petition was dismissed on August 21,
    2015, and this appeal followed.    Appellant raises one issue: “Whether the
    PCRA court committed an error of law and abused its discretion when it
    denied relief where the court had jurisdiction pursuant to 42 Pa.C.S. §
    9545(b)(1)(ii), as the clarification/interpretation via Commonwealth v.
    Hopkins, 
    117 A.3d 247
     (Pa. 2015), dates back to the day of enactment.”
    Appellant’s brief at 3. We first outline our standard of review:
    Under the applicable standard of review, we must determine
    whether the ruling of the PCRA court is supported by the record
    and is free of legal error. Commonwealth v. Marshall, 
    596 Pa. 587
    , 
    947 A.2d 714
    , 719 (2008). The PCRA court's credibility
    determinations, when supported by the record, are binding on
    this Court. Commonwealth v. Johnson, 
    600 Pa. 329
    , 
    966 A.2d 523
    , 532, 539 (2009). However, this Court applies a de novo
    standard of review to the PCRA court's legal conclusions.
    Commonwealth v. Rios, 
    591 Pa. 583
    , 
    920 A.2d 790
    , 810
    (2007).
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    Commonwealth v. Spotz, 
    18 A.3d 244
    , 259 (Pa. 2011). Accord
    Commonwealth v. Bardo, 
    105 A.3d 678
    , 685 (Pa. 2014) (“If supported by
    the record, the PCRA court's credibility determinations and factual findings
    are binding on this Court; however, we apply a de novo standard of review
    to the PCRA court's legal conclusions.”).
    Before we can address the merits of Appellant’s position, we must first
    determine whether Appellant’s July 29, 2015 PCRA petition was timely filed
    as that issue implicates our jurisdiction.   Commonwealth v. Miller, 
    102 A.3d 988
     (Pa.Super. 2014).      If a PCRA petition is untimely, “neither this
    Court nor the trial court has jurisdiction over the petition.” 
    Id. at 992
    (citation omitted); see Commonwealth v. Chester, 
    895 A.2d 520
    , 522
    (Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the trial
    court has jurisdiction over the petition. Without jurisdiction, we simply do
    not have the legal authority to address the substantive claims.”).
    Any PCRA petition must be filed within one year of the date the
    defendant’s judgment becomes final unless an exception to the one-year
    time restriction applies. 42 Pa.C.S. § 9545(b)(1).    Accordingly, we initially
    determine when Appellant’s judgment of sentence became final.               “A
    judgment 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. § 9545(b)(3). In this case, since Appellant did not file a
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    direct appeal from his January 18, 2013 judgment of sentence, it became
    final on February 17, 2013. He had one year, or until February 17, 2014, to
    file a timely PCRA petition, and his July 29, 2015 petition is untimely. There
    are three exceptions to the one-year time bar of § 9545:
    (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.
    42 Pa.C.S. § 9545(b)(1)(i-iii). “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).
    Appellant invokes the newly-discovered facts exception.      He argues
    that his PCRA petition is timely under § 9545(b)(1)(ii) due to “the Supreme
    Court decision in Commonwealth v. Hopkins, 
    117 A.3d 247
     (Pa. 2015).”
    Appellant’s brief at 7.   However, it is settled that “section 9545(b)(1)(ii)
    applies only if the petitioner has uncovered facts that could not have been
    ascertained through due diligence, and judicial determinations are not facts.”
    Commonwealth v. Watts, 
    23 A.3d 980
    , 986 (Pa. 2011).                Appellant’s
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    invocation   of   the   newly-discovered   facts   exception   based   upon    the
    dissemination of the Hopkins decision therefore fails.
    Appellant also argues that Alleyne and its progeny should be
    retroactively applied, obstensibly maintaining that the newly-recognized
    constitutional right exception of § 9545(b)(1)(iii) is applicable herein.       In
    Commonwealth v. Miller, 
    102 A.3d 988
     (Pa.Super. 2014), we specifically
    ruled that an Alleyne claim does not fall within § 9545(b)(1)(iii).           That
    provision requires that the court announcing the new constitutional right
    hold that its constitutional decision is to be applied retroactively. Neither the
    United States Supreme Court nor our Supreme Court has ruled that Alleyne
    is retroactive.    Likewise, none of the cases applying Alleyne has been
    considered to apply retroactively to PCRA petitioners by the United States
    Supreme Court or the Pennsylvania Supreme Court.           Thus, this petition is
    not saved from untimeliness by a retroactivity analysis regarding Alleyne
    and its progeny.
    So that Appellant will cease seeking relief under case law that
    constantly emanates from this Court and our Supreme Court pursuant to
    Alleyne, we stress the following to Appellant.       He is not entitled to relief
    either under Alleyne or any of the case law applying it.         No mandatory
    minimum sentence was applied herein. Appellant merely was sentenced to
    the statutory maximum sentence permitted for a second-degree felony after
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    he pled guilty to the elements of a crime that was graded as a second-
    degree felony.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/20/2016
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