J-S23015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
  MICHAEL RICCITELLO                      :
                                          :
                    Appellant             :   No. 3545 EDA 2019

           Appeal from the PCRA Order Entered October 30, 2019
     In the Court of Common Pleas of Bucks County Criminal Division at
                      No(s): CP-09-CR-0004089-2013


BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                             FILED JULY 24, 2020

      Appellant Michael Riccitello appeals pro se from the order dismissing his

fourth Post Conviction Relief Act (PCRA) petition as untimely and previously

litigated.   Appellant argues that his sentence was illegal because the

Commonwealth failed to present a fact enhancing his sentence to a jury for a

finding of proof beyond a reasonable doubt. Appellant further contends that

he is entitled to a PCRA time-bar exception under 42 Pa.C.S. § 9545(b)(1)(iii).

We affirm.

      The PCRA court has summarized the procedural history of this matter,

and we need not restate it here. See PCRA Ct. Op., 1/24/20, at 1-3. We

briefly reiterate that on September 9, 2013, the trial court accepted

Appellant’s negotiated guilty pleas in this case and a companion case and
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sentenced Appellant to an agreed-upon term of ten to twenty years’

imprisonment for robbery—threat of immediate serious injury in this case.1

       Appellant did not take a direct appeal, but filed three previous PCRA

petitions, none of which merited relief. In his third PCRA petition, which he

filed in July 2018, Appellant challenged the legality of his sentence asserting

that he was sentenced using a mandatory minimum sentencing provision held

unconstitutional in Alleyne v. United States, 570 U.S. 99 (2013), and

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). The PCRA

court dismissed that petition, and this Court affirmed. See Commonwealth

v. Riccitello, 3062 EDA 2018, 2019 WL 2246616 (Pa. Super. filed May 24,

2019) (unpublished mem.). In so doing, this Court noted that there was no

indication that the trial court imposed a mandatory minimum and, therefore,

Appellant could not rely on Alleyne as a basis for the PCRA timeliness

exception under Section 9545(b)(1)(iii). Riccitello, 2019 WL 2246616 at *3.

However, this Court vacated the PCRA court’s order entered in the companion

case docketed at 3466-2013, because Appellant did not file a PCRA petition in

that case. Id. at *2.

       Appellant filed the instant fourth PCRA petition pro se, which was

docketed in the PCRA court on September 16, 2019. Rather than referring to

the former mandatory minimum sentencing statute, Appellant asserted he

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1In the companion case docketed at CP-09-CR-0003466-2013 (3466-2013),
Appellant pled guilty to robbery and the trial court sentenced him to a
concurrent sentence of ten to twenty years’ imprisonment.

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was sentenced based on the application of the weapons enhanced/used

matrix.      Appellant again       asserted    that the   trial court imposed   an

unconstitutional sentence. Appellant argued that Alleyne should apply in his

case and that the rights recognized in Alleyne applied retroactively. Appellant

also alleged that this Court previously found that his sentence in 3466-2013

was unconstitutional and that this Court granted him relief by vacating the

PCRA court’s order in that case.

       On September 25, 2019, the PCRA court issued a notice of its intent to

dismiss Appellant’s fourth PCRA petition. Appellant filed a pro se motion for

reconsideration.     The PCRA court entered an order dismissing Appellant’s

petition on October 30, 2019, and subsequently denied Appellant’s motion for

reconsideration on November 14, 2019.

       Appellant filed a timely notice of appeal on November 25, 2019,2 and

complied with the PCRA court’s order to file and serve a Pa.R.A.P. 1925(b)

statement. The PCRA court filed a responsive opinion indicating that Appellant

untimely filed his fourth PCRA petition and that Appellant previously litigated

his issues related to Alleyne. PCRA Ct. Op, 1/24/20, at 5-6.

       Appellant presents the following questions in his pro se brief:




____________________________________________


2Because Appellant timely filed his notice of appeal from the October 30, 2019
order formally dismissing his fourth PCRA petition, we need not consider
whether the PCRA court should have treated Appellant’s “motion for
reconsideration” as a response to the Rule 907 notice rather than entering a
separate order denying reconsideration.

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      [1]. Does the statute, deemed unconstitutional by the High Court
      apply retroactively in Appellant’s claim?

      [2]. Did the trial court err in enhancing sentence whereby failing
      to submit all elements of the charge to the fact finder for proof
      beyond a reasonable doubt?

Appellant’s Brief at 6.

      We summarize Appellant’s arguments together as they are closely

related. Although Appellant referred to the sentencing enhancement matrix

in his fourth PCRA petition, on appeal, he insists that “the mandatory minimum

statutes that Appellant was sentenced under are unconstitutional” based on

Alleyne. Id. at 10. He contends that the rule announced in Alleyne applies

retroactively because it is a watershed rule of criminal procedure. Id. at 11.

Moreover, Appellant asserts he is entitled to relief from the PCRA time-bar

under the newly recognized constitutional right exception.      Id. at 12.   In

support, he contends that Section 9545(b)(1)(iii) does not require the United

States Supreme Court or Pennsylvania Supreme Court to announce that new

constitutional rule applies retroactively, only that one of those Courts apply

the new rule retroactively. Id. at 12. Appellant argues that nothing in Section

9545(b)(2) requires that he file a petition within sixty days of the day a court

announces or applies a new constitutional rule retroactively. Id. at 13.

      Appellant further argues that he was sentenced to an enhanced

minimum sentence in violation of his constitutional rights because “the factual

prerequisites were not charged in the indictment nor submitted to a jury and

proven beyond a reasonable doubt.” Id. at 15. Appellant suggests that in



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light of Alleyne, the application of a mandatory minimum statute was void ab

initio. Id. at 14 (citing Johnson v. United States, 135 S. Ct. 2551 (2016)).

Appellant concludes that he is entitled to have his sentence vacated. Id.

      In response, the Commonwealth argues that Appellant failed to

establish any of the three PCRA time-bar exceptions.             With respect to

Appellant’s arguments based on Section 9545(b)(1)(iii), the Commonwealth

asserts that neither the United States nor Pennsylvania Supreme Courts have

held that Alleyne applies retroactively to cases like his on collateral review.

Commonwealth’s      Brief   at   12.     The   Commonwealth       notes    that   in

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), the Pennsylvania

Supreme Court held that “Alleyne does not apply to cases, like Appellant’s,

on collateral review.” Id. The Commonwealth further contends that Appellant

is not entitled to relief on the merits of his petition because Appellant was not

sentenced to a mandatory minimum sentence. Id. at 14-15.

      Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

      It is well-settled that “the timeliness of a PCRA petition is a jurisdictional

[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super.

2015) (citation omitted). “A PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final.” Id. (citation omitted). A judgment is final “at the conclusion

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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.” Id. (quoting 42 Pa.C.S. § 9545(b)(3)).

       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three statutory exceptions:

       (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). Moreover, a petition invoking any one of the

exceptions “shall be filed within 60 days of the date the claim could have been

presented.”3 42 Pa.C.S. § 9545(b)(2).

       The new constitutional right exception has two requirements: (1) “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 provided in this section,” and (2) “the right ‘has been held’ by ‘that court’
____________________________________________


3 We note that the amended subsection (b)(2) providing that a petition must
be filed within one year of the date the claim could have been presented
applies only to claims arising on or after December 24, 2017; Appellant’s
claims predate that date. 2018 Pa. Legis. Serv. Act 2018-146 (West).

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to apply retroactively.” Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.

Super. 2014) (citation and brackets omitted). The Miller Court explained 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.” Id. at 995

(citations omitted).

      Following our review, we agree with the PCRA court that Appellant failed

to establish his fourth PCRA petition was timely filed. First, Alleyne did not

announce a new constitutional right that applies retroactively for the purpose

of Section 9545(b)(1)(iii). See Commonwealth v. Washington, 142 A.3d

810, 820 (Pa. 2016). But see Commonwealth v. DiMatteo, 177 A.3d 182,

192 (Pa. 2018) (noting that “[a]lthough Washington may be read to suggest

that it forecloses Alleyne-based relief on collateral attack, its true holding is

that Alleyne does not apply to cases where the judgment of sentence was

final prior to Alleyne, because if the judgment of sentence was not final, then

its application is not truly ‘retroactive’” (citations omitted)).

      Second, even if Appellant was entitled to rely on Alleyne in a collateral

challenge to his sentence, Appellant failed to plead or prove that he could not

have raised an Alleyne claim in a direct appeal, a timely filed PCRA petition,

or in a facially untimely PCRA petition filed within sixty days from the date his

could have been presented. See 42 Pa.C.S. § 9545(b)(2); Commonwealth

v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (“With regard to an after-

recognized constitutional right, this Court has held that the sixty-day period

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begins to run upon the date of the underlying judicial decision” (citation

omitted)). To the extent that Appellant asserts he was not required to file a

petition within sixty days of Alleyne, that assertion merits no relief.    See

Boyd, 923 A.2d at 517; see also Commonwealth v. Whitehawk, 146 A.3d

266, 271 (Pa. Super. 2016) (noting that Pennsylvania decisions applying

Alleyne do not establish a basis for a PCRA time-exception). Accordingly,

Appellant’s failed to meet the requirement of Section 9545(b)(2).

       In any event, as this Court noted with respect to the order dismissing

Appellant’s third PCRA petition, Appellant cannot rely on a newly announced

constitutional right where he failed to establish that he was sentenced

pursuant to a mandatory minimum sentence statute. See Riccitello, 2019

WL 2246616 at *3 (discussing Commonwealth v. Furgess, 149 A.3d 90, 94

(Pa. Super. 2016), for the proposition that even if the newly recognized

constitutional right regarding juvenile life without parole sentence was held to

be retroactive in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that

right did not apply to individuals over the age of eighteen when they

committed their offense and therefore could not be the basis for a PCRA time-

bar exception). Similarly, because Appellant failed to establish any sentencing

procedure impacted by Alleyne, Appellant’s fourth PCRA petition would have

failed on its merits.4

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4 To the extent Appellant pled in his fourth PCRA petition that he was
unconstitutionally sentenced based on the deadly weapons enhancement in



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/20




____________________________________________


the Sentencing Guidelines, his reliance on Alleyne as a PCRA time-bar
exception suffers from the same defect. Alleyne is not a constitutional rule
that applies to the deadly weapons matrix in the Sentencing Guidelines. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014)
(en banc); accord Commonwealth v. Chickin, ___ A.3d ___, ___, 2020 PA
Super 121, 2020 WL 2552803, at *7 (Pa. Super. filed May 20, 2020)
(indicating that Alleyne “did not intend to restrict a sentencing court’s
discretion to consider numerous factors when imposing a sentence within the
sentencing guideline ranges . . . .” (emphasis and citation omitted)).

We add that while Appellant states that this Court previously found Appellant’s
sentence was unconstitutional in the companion case in 3466-2013, Appellant
mischaracterizes this Court’s decision. As noted above, this Court addressed
Appellant’s third PCRA petition and vacated an order the PCRA court entered
in the companion case at 3466-2013. See Riccitello, 2019 WL 2246616 at
*2. We did so only because Appellant did not file his third PCRA petition in
3466-2013, and without a petition being filed in that case, any actions taken
by the PCRA court were nullities. See id. Indeed, we added that even if
Appellant filed his third PCRA petition under 3466-2013, it would have been
untimely. Id. at *2 n.5.

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