J-A18042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
SHANE DAVID RISJAN,                        :
                                           :
                   Appellant               :           No. 1152 MDA 2014

                Appeal from the Order entered on June 17, 2014
               in the Court of Common Pleas of Dauphin County,
                 Criminal Division, No. CP-22-CR-0000410-2008

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 28, 2015

        Shane David Risjan (“Risjan”), pro se, appeals from the Order denying

his “Petition Pursuant to the Post Conviction Relief Act [(“PCRA”)1] and

Motion for Writ of Habeas Corpus.”2 We affirm.

        In March 2009, a jury found Risjan guilty of involuntary deviate sexual

intercourse with a minor under the age of 13 (“IDSI”), indecent assault,

indecent exposure, and corruption of minors.      On June 29, 2009, the trial

1
    See 42 Pa.C.S.A. §§ 9541-9546.
2
  To the extent that Risjan’s Petition sought habeas corpus relief, it is well
established that “[t]he PCRA … subsumes the remed[y] of habeas corpus”
where the PCRA provides a remedy for the claim. Commonwealth v.
Turner, 80 A.3d 754, 770 (Pa. 2013); see also 42 Pa.C.S.A. § 9542
(providing that “[t]he action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus[.]”). Because the PCRA
provides a remedy for Risjan’s claims, we hereinafter refer to Risjan’s
Petition as “the PCRA Petition.”
J-A18042-15


court sentenced Risjan to serve an aggregate prison term of ten to twenty

years. Notably to the instant appeal, the trial court imposed this sentence

pursuant to the mandatory minimum sentencing provision at 42 Pa.C.S.A.

§ 9718(a)(1) (requiring a mandatory minimum sentence of ten years for an

offender convicted of IDSI). Risjan did not file any post-sentence motions or

a direct appeal.

      Over two years later, in August 2011, Risjan retained the services of

Anthony A. Logue, Esquire, and James Pitonyak, Esquire (collectively, “PCRA

counsel”), to file a PCRA petition. On May 7, 2012, PCRA counsel filed the

instant PCRA Petition, alleging ineffectiveness by Risjan’s trial counsel for,

inter alia, failing to file post-sentence motions and a requested direct

appeal.3

      The PCRA court conducted two evidentiary hearings on the PCRA

Petition, wherein testimony was presented by Risjan, his trial counsel, and

Risjan’s grandmother (who had paid for trial counsel’s services).4 On June


3
  Additionally, the PCRA Petition asserted that Risjan was entitled to (1)
habeas corpus relief under the federal and state constitutions; and/or (2)
reinstatement of his direct appeal rights, nunc pro tunc, based on trial
counsel’s alleged ineffectiveness.
4
  At the evidentiary hearings, Risjan and his grandmother testified that they
had asked trial counsel to file a direct appeal. Trial counsel disputed their
claims, asserting that he (1) had informed Risjan and his family that counsel
was too emotionally involved concerning Risjan’s case, and would not
represent Risjan for purposes of an appeal; and (2) would refer Risjan to
another attorney. Additionally, the fee agreement between Risjan and trial
counsel did not provide that trial counsel would represent Risjan on appeal.



                                 -2-
J-A18042-15


17, 2014, the PCRA court entered an Order denying the PCRA Petition,

concluding it lacked jurisdiction because the Petition was untimely filed, and

Risjan had not pled or proven any of the timeliness exceptions under the

PCRA. On July 11, 2014, PCRA counsel timely filed a Notice of Appeal on

Risjan’s behalf.5

      On November 12, 2014, Risjan filed in this Court a pro se “Motion to

Remove [PCRA] Counsel and to Proceed from a Pro Se Standing”

(hereinafter “Motion to proceed pro se”). In response, this Court entered an

Order directing the PCRA court to conduct a hearing, pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine if

Risjan’s    choice   to   proceed   without   counsel   was   made   knowingly,

intelligently, and voluntarily.     After the Grazier hearing, the PCRA court

granted Risjan’s Motion to proceed pro se on appeal.

      On appeal, Risjan presents the following issues for our review:

           I. Whether [Risjan] was denied the effective assistance of
              [] PCRA counsel where, following [counsels’] retention,
              [they] abandoned [Risjan] for nearly a year, failing to
              timely seek PCRA review on [Risjan’s] behalf?

           II. Whether [Risjan] is entitled to vacation of his sentence
               based upon this Court’s holding in Commonwealth v.
               Wolfe, [106 A.3d 800] ([Pa. Super.] 2014)?

Brief for Appellant at 4 (capitalization omitted).

            This Court examines PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review

5
  The PCRA court did not order Risjan to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.


                                     -3-
J-A18042-15


      is limited to the findings of the PCRA court and the evidence of
      record. Additionally, we grant great deference to the factual
      findings of the PCRA court[,] and will not disturb those findings
      unless they have no support in the record. In this respect, we
      will not disturb a PCRA court’s ruling if it is supported by
      evidence of record and is free of legal error. However, we afford
      no deference to its legal conclusions. [W]here the petitioner
      raises questions of law, our standard of review is de novo and
      our scope of review is plenary.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)

(internal citations, quotation marks and brackets omitted); see also id.

(stating   that   the   question   of    “[w]hether   a   claim   of   PCRA   counsel

ineffectiveness can be raised for the first time on appeal is a question of

law.”).

      Here, Risjan acknowledges that (1) the PCRA Petition, filed in May

2012, is facially untimely because his judgment of sentence became final

approximately three years prior, in July 2009; and (2) PCRA counsel did not

plead in the PCRA Petition any of the three exceptions to the PCRA’s

jurisdictional time limitation set forth at 42 Pa.C.S.A. § 9545(b)(1)(i-iii)

(collectively, “the time bar exceptions”).       See Brief for Appellant at 7, 9.

However, Risjan argues in his first issue that PCRA counsel was ineffective

for (1) waiting nearly a year to file the PCRA Petition, after having been

privately retained by Risjan’s family for this precise purpose; and (2) failing

to invoke in the PCRA Petition any of the time bar exceptions.                    Id.

Accordingly, Risjan urges this panel to

      find[] … that the conduct of … PCRA counsel was deficient, and []
      remand to the [PCRA] court, giving [Risjan] the opportunity to


                                        -4-
J-A18042-15


      amend his [PCRA P]etition to include an exception to the one-
      year time requirement, both in terms of trial counsel’s
      abandonment in failing to file requested post-sentence motions
      and a direct appeal, as well as PCRA counsels’ abandonment in
      waiting nearly a year before eventually filing a PCRA [P]etition
      [that] invoked none of the [time bar] exception[s] ….

Id. at 7-8.

      It is well established that claims of PCRA counsel’s ineffectiveness may

not be raised for the first time on appeal. See Henkel, 90 A.3d at 20, 22-

30 (thoroughly discussing Pennsylvania precedent holding that an appellant

may not raise claims of PCRA counsel ineffectiveness for the first time on

appeal); see also Commonwealth v. Ford, 44 A.3d 1190, 1200-01 (Pa.

Super. 2012) (stating that “issues of PCRA counsel effectiveness must be

raised in a serial PCRA petition or in response to a notice of dismissal before

the PCRA court. Therefore, … claims of PCRA counsel ineffectiveness cannot

be raised for the first time after a notice of appeal has been taken from the

underlying PCRA matter.”); see also Pa.R.A.P. 302(a) (stating that a claim

cannot be raised for the first time on appeal).

      In   the   instant   case,   Risjan   never   asserted   PCRA   counsels’

ineffectiveness prior to the denial of the PCRA Petition and PCRA counsels’

filing of a Notice of Appeal on Risjan’s behalf.6 Accordingly, because Risjan

raised this claim for the first time on appeal, we are constrained to conclude



6
 Moreover, Risjan did not challenge PCRA counsels’ representation at the
Grazier hearing, conducted after the appeal was filed.



                                   -5-
J-A18042-15


that it is unreviewable under Ford and Henkel.7        Moreover, though we

express no opinion as to the merits of Risjan’s claim of PCRA counsels’

ineffectiveness, Risjan retains the right to raise this claim in a subsequent

PCRA petition, and/or invoke any of the time bar exceptions.             See

Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011) (stating that

“[w]hile difficult, the filing of a subsequent timely PCRA petition [alleging

ineffectiveness of PCRA counsel] is possible, and in situations where a[]

[time bar] exception … can be established[,] a second [PCRA] petition filed

beyond the one-year time bar may be pursued.”).

     In his second issue, Risjan argues that the PCRA court improperly

denied his PCRA Petition because the sentencing court had imposed an

illegal sentence by applying the mandatory minimum sentencing provision

under section 9718(a)(1) of the Sentencing Code.8 See Brief for Appellant

at 15-16.   In support, Risjan relies upon this Court’s recent decision in

Wolfe, 106 A.3d at 805-06 (holding that section 9718 is void in its entirety

and facially unconstitutional based upon the United States Supreme Court’s

decision in Alleyne v. U.S., 133 S. Ct. 2151 (2013), which held that any

“fact” that increases a mandatory minimum sentence must be treated as an

7
   Additionally, we have reviewed Risjan’s argument that Henkel is
distinguishable, see Reply Brief for Appellant at 3-4, but find that Henkel is
on-point and controlling.
8
  Notably to Risjan’s issue, subsection (c) of section 9718 provides, inter
alia, that “[t]he provisions of this section shall not be an element of the
crime …. The applicability of this section shall be determined at sentencing.”
42 Pa.C.S.A. § 9718(c).


                                 -6-
J-A18042-15


element of the crime that must be submitted to a jury, not a sentencing

court, and found beyond a reasonable doubt).

      Because Risjan did not allege any of the time bar exceptions in his

facially untimely PCRA Petition, we lack jurisdiction to address Risjan’s

instant claim. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (stating that the PCRA’s timeliness requirements are jurisdictional in

nature and a court may not address the merits of the issues raised if the

PCRA petition was not timely filed); Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (same). Even if Risjan had alleged in the PCRA Petition

that his sentence under section 9718(a)(1) met the newly recognized

constitutional right time bar exception of section 9545(b)(1)(iii) in light of

the Alleyne decision, this Court has held that such right is not applicable

retroactively to cases on collateral review. See Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014) (stating that “[e]ven 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.”) (emphasis omitted).     Additionally, though a claim concerning

Alleyne goes to the legality of sentence, and “illegal sentencing issues

cannot be waived, they still must be presented in a timely PCRA petition.”

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).




                                 -7-
J-A18042-15


      Accordingly, we conclude that the PCRA court properly denied the

PCRA Petition as untimely-filed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2015




                                   -8-
