J-S70025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

JOSEPH DYSON

                            Appellant                     No. 1112 EDA 2014


                Appeal from the PCRA Order February 12, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0005936-1992


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                              FILED NOVEMBER 21, 2014

        Appellant, Joseph Dyson, appeals from the February 12, 2014 order

dismissing as untimely his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.                 After careful

review, we affirm.

        We summarize the relevant factual and procedural history of this case

as follows. On March 10, 1993, Appellant entered a guilty plea to murder,

robbery, possession of an instrument of a crime (PIC), possession of a

firearm, and carrying a firearm without a license.1         Following a degree-of-

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.A.       §§    2501,    3701(a)(1)(i),   907(a),   907(b)    and   6106,
respectively.
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guilt hearing, the trial court found Appellant guilty of first-degree murder.2

On June 24, 1993, the trial court imposed an aggregate sentence of life

imprisonment.       Appellant did not file a direct appeal with this Court.

Thereafter, Appellant filed a PCRA petition on July 6, 1994.     After several

ancillary issues were resolved, the PCRA court ultimately denied Appellant’s

PCRA petition.      Appellant appealed, and this Court affirmed in all aspects

except with respect to his claim that prior counsel was ineffective for not

filing a direct appeal.       Commonwealth v. Dyson, 776 A.2d 1004 (Pa.

Super. 2001) (unpublished memorandum at 8). This Court remanded to the

PCRA court to conduct an evidentiary hearing limited to that issue. Id. A

hearing was held, at the conclusion of which the PCRA court reinstated

Appellant’s direct appeal rights nunc pro tunc.     Appellant filed a notice of

appeal to this Court. This Court affirmed Appellant’s judgment of sentence

on October 30, 2001. Commonwealth v. Dyson, 792 A.2d 612 (Pa. Super.

2001), appeal denied, 800 A.2d 931 (Pa. 2002). Our Supreme Court denied

Appellant’s petition for allowance of appeal on June 12, 2002. Appellant did

not seek a writ of certiorari from the United States Supreme Court.

Thereafter, Appellant filed an unsuccessful PCRA petition in 2003.

        On August 24, 2012, Appellant filed the instant PCRA petition.

Appellant filed an amended PCRA petition on August 19, 2013.         Appellant


____________________________________________
2
    18 Pa.C.S.A. § 2502(a).



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filed another amendment to his PCRA petition, titled as an amended habeas

corpus petition on January 3, 2014. On January 16, 2014, the PCRA court

entered an order notifying Appellant of its intention to dismiss Appellant’s

PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907.       On February 6, 2014, Appellant filed his response to the

PCRA court’s Rule 907 notice.3            On February 12, 2014, the PCRA court

entered an order dismissing Appellant’s PCRA petition. On March 13, 2014,

Appellant filed a timely notice of appeal.4


____________________________________________
3
   Although Appellant’s response to the PCRA court’s Rule 907 notice is
docketed on February 7, 2014, the physical copy of said response in the
certified record is file-stamped February 6, 2014. However, “[a]lthough the
trial court docket is part of the official record, when it is at variance with the
certified record it references, the certified record controls.” Shelly Enters.,
Inc. v. Guadagnini, 20 A.3d 491, 494 (Pa. Super. 2011). Therefore, we
consider Appellant’s response filed on February 6, 2014.
4
   On March 14, 2014, the PCRA court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) within 21 days.
Therefore, Appellant’s Rule 1925(b) statement was due Friday, April 4,
2014. Although Appellant’s statement is file-stamped Monday, April 7,
2014, it is docketed twice, once on April 4 and once on April 7. As it is
plausible that said statement was received on April 4, 2014, we decline to
find total waiver of all issues on appeal for failure to timely file a Rule
1925(b) statement. See, e.g., Commonwealth v. Patterson, 931 A.2d
710, 714 (Pa. Super. 2007) (stating, regarding a notice of appeal,
“[a]lthough the record is bereft of the envelope in which the notice of appeal
was mailed, and thus lacks a postmark definitively noting the date of
mailing, we note that September 23rd and 24th were weekend days. Thus,
in order for the trial court to have received the notice of appeal by
September 25th, it is likely that Appellant mailed his notice of appeal on or
before September 22nd. Accordingly, we decline to quash the appeal for
untimeliness[]”).



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      On appeal, Appellant raises the following two issues for our review.

            A.     Whether the imposition of a mandatory
            minimum sentence of life without parole from an
            invalid plea-based conviction violated Appellant’s
            right to notice and trial by jury under the Sixth and
            Fourteenth Amendment as interpreted by Alleyne v.
            United States, 133 S. Ct. 2151 (2013)?

            B.     Whether Appellant is eligible for habeas corpus
            relief where he was denied a full and fair opportunity
            to litigate his claims in his first [PCRA] process and
            no remedy exists under the PCRA to remedy post-
            conviction procedures that were inadequate to
            vindicate a defendant’s liberty interest?

Appellant’s Brief at 5.

      We elect to address Appellant’s second issue first.     Appellant avers

that he is entitled to habeas relief outside of the PCRA. Appellant’s Brief at

37. Appellant also argues that “[i]f the PCRA were to only deal with claims

that are retroactive, the PCRA would be unconstitutional as applied to

Appellant because he would have no remedy under the PCRA to remedy the

violations of his constitutional rights.” Id.

      Our Supreme Court has held that the PCRA “subsumes the writ of

habeas corpus in circumstances where the PCRA provides a remedy for the

claim.” Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008) (italics

added), cert. denied, Hackett v. Pennsylvania, 556 U.S. 1285 (2009).

The PCRA by its own text states that it is the sole vehicle for collaterally

attacking a conviction or sentence.

            This subchapter provides for an action by which
            persons convicted of crimes they did not commit and

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            persons serving illegal sentences may obtain
            collateral relief. The 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 and coram nobis. This
            subchapter is not intended to limit the availability of
            remedies in the trial court or on direct appeal from
            the judgment of sentence, to provide a means for
            raising issues waived in prior proceedings or to
            provide relief from collateral consequences of a
            criminal conviction. Except as specifically provided
            otherwise, all provisions of this subchapter shall
            apply to capital and noncapital cases.

42 Pa.C.S.A. § 9542 (emphasis and italics added). We also observe that the

habeas corpus statute provides that “[w]here a person is restrained by

virtue of sentence after conviction for a criminal offense, the writ of habeas

corpus shall not be available if a remedy may be had by post-conviction

hearing proceedings authorized by law.” Id. § 6503(b) (italics added). The

PCRA allows numerous grounds for collateral relief, including the following.

            § 9543. Eligibility for relief

            (a) General rule.--To be eligible for relief under
            this subchapter, the petitioner must plead and prove
            by a preponderance of the evidence all of the
            following:

                  (1) That the petitioner has been convicted of a
                  crime under the laws of this Commonwealth
                  and is at the time relief is granted:

                        (i) currently serving a sentence of
                        imprisonment, probation or parole for
                        the crime;

                                      …

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                  (2) That the conviction or sentence resulted
                  from one or more of the following:

                                      …

                        (i) A violation of the Constitution of this
                        Commonwealth or the Constitution or
                        laws of the United States which, in the
                        circumstances of the particular case, so
                        undermined       the    truth-determining
                        process that no reliable adjudication of
                        guilt or innocence could have taken
                        place.

                                      …

                        (vii) The imposition of a sentence greater
                        than the lawful maximum.

                                      …

42 Pa.C.S.A. § 9543(a); see also Commonwealth v. Infante, 63 A.3d

558, 365 (Pa. Super. 2013) (stating, “[a]lthough legality of sentence is

always subject to review within the PCRA, claims must still first satisfy the

PCRA's time limits or one of the exceptions thereto[]”).

      The balance of Appellant’s argument on appeal is that “the imposition

of a mandatory minimum sentence of life without parole from an invalid

plea-based conviction violated Appellant’s right to notice and trial by jury

under the Sixth and Fourteenth Amendments as interpreted by Alleyne []

as well as his corresponding rights under the Pennsylvania Constitution.”

Appellant’s Brief at 28. This Court has recently held that claims pertaining

to Alleyne implicate the legality of the sentence.         Commonwealth v.


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Newman,     99   A.3d   86,   90   (Pa.    Super.   2014)   (en    banc);   accord

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013).                   As a

result, Appellant’s claims fall squarely within the parameters of the PCRA.

Therefore, we reject Appellant’s arguments that he may seek habeas relief

outside of the PCRA.

     Having determined that Appellant’s issue falls within the boundaries of

the PCRA, we note our well-settled standard of review.            “In reviewing the

denial of PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa. 2014) (internal quotation marks and citation

omitted). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294,

311 (Pa. 2014) (citation omitted).        “It is well-settled that a PCRA court’s

credibility determinations are binding upon an appellate court so long as

they are supported by the record.” Commonwealth v. Robinson, 82 A.3d

998, 1013 (Pa. 2013) (citation omitted).        However, this Court reviews the

PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d

1080, 1084 (Pa. Super. 2014) (citation omitted).

     We also note that a PCRA petitioner is not automatically entitled to an

evidentiary hearing.    We review the PCRA court’s decision dismissing a




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J-S70025-14


petition without a hearing for an abuse of discretion.      Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).

             [T]he right to an evidentiary hearing on a post-
             conviction petition is not absolute. It is within the
             PCRA court’s discretion to decline to hold a hearing if
             the petitioner’s claim is patently frivolous and has no
             support either in the record or other evidence. It is
             the responsibility of the reviewing court on appeal to
             examine each issue raised in the PCRA petition in
             light of the record certified before it in order to
             determine if the PCRA court erred in its
             determination that there were no genuine issues of
             material fact in controversy and in denying relief
             without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

citations omitted). “[A]n evidentiary hearing is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.”        Roney, supra at 605 (citation

omitted).

      Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it

implicates   the   jurisdiction   of   this   Court   and   the   PCRA   court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation

omitted).    Pennsylvania law makes clear that when “a PCRA petition is

untimely, neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(citation omitted), appeal denied, --- A.3d ---, 2014 WL 5096348 (Pa.

2014). The “period for filing a PCRA petition is not subject to the doctrine of

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J-S70025-14


equitable tolling; instead, the time for filing a PCRA petition can be extended

only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86

A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted).

This is to “accord finality to the collateral review process.” Commonwealth

v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).           “However, an

untimely petition may be received when the petition alleges, and the

petitioner proves, that any of the three limited exceptions to the time for

filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are

met.”    Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)

(citation omitted). The PCRA provides, in relevant part, as follows.


            § 9545. Jurisdiction and proceedings

                                         …

            (b) Time for filing petition.—

                   (1) Any petition under this subchapter,
                   including a second or subsequent petition, shall
                   be filed within one year of the date the
                   judgment becomes final, unless the petition
                   alleges and the petitioner proves that:

                         (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

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                        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.

                  (2) 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.A. § 9545(b).

      In the case sub judice, Appellant was sentenced on June 24, 1993, this

Court affirmed the judgment of sentence on October 30, 2001, and our

Supreme Court denied allocatur on June 12, 2002.           Therefore, Appellant’s

judgment of sentence became final on September 10, 2002, when the period

for Appellant to file a petition for a writ of certiorari in the United States

Supreme Court expired.        See 42 Pa.C.S.A. § 9545(b)(3) (stating, “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[]”); U.S. Sup. Ct. R. 13(1) (stating “a petition for a writ of certiorari

to review a judgment in any case … is timely when it is filed with the Clerk of

this Court within 90 days after entry of the judgment[]”).                Therefore,


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Appellant had until September 10, 2003 to timely file his PCRA petition.

Appellant filed the instant petition on August 24, 2012. As a result, it was

patently untimely.

      However, Appellant avers that the time-bar exception at Section

9545(b)(1)(iii) applies. Appellant’s Brief at 28. Specifically, Appellant avers

that the United States Supreme Court’s decision in Alleyne announced a

new constitutional right that applies retroactively. Id. at 28-30; see also

Appellant’s Amended PCRA Petition, 8/19/13, at 4.

                  Subsection (iii) of Section 9545[(b)(1)] has
            two requirements. First, it provides that 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. Second, it provides that the
            right “has been held” by “that court” to apply
            retroactively. Thus, a petitioner must prove that
            there is a “new” constitutional right and that the
            right “has been held” by that court to apply
            retroactively. The language “has been held” is in the
            past tense. These words mean that the action has
            already occurred, i.e., “that court” has already held
            the new constitutional right to be retroactive to
            cases on collateral review. By employing the past
            tense in writing this provision, the legislature clearly
            intended that the right was already recognized at the
            time the petition was filed.

Seskey, supra at 242-243 (citations omitted).

      As noted above, Appellant argues that Alleyne announced a new

constitutional right that applies retroactively. Appellant’s Brief at 28-30. In

Alleyne, the Supreme Court held that “facts that increase mandatory

minimum sentences must be submitted to the jury” and must be found

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beyond a reasonable doubt. Alleyne, supra at 2163. However, this Court

recently held that Alleyne does not satisfy the new constitutional right

exception to the time-bar, as neither our Supreme Court nor the United

States Supreme Court has held that Alleyne applies retroactively to cases

on collateral review.     Commonwealth v. Miller, --- A.3d ---, 2014 WL

4783558, *5 (Pa. Super. 2014). Therefore, Appellant cannot avail himself of

the time-bar exception, and the PCRA court was without jurisdiction to

consider the merits of his petition. See Lawson, supra; Seskey, supra.

     Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s PCRA petition as untimely.    Accordingly, the PCRA

court’s February 12, 2014 order is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2014




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