J-S53018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

GIACOMO DAVID PISCIOTTA

                            Appellant                 No. 387 MDA 2015


                 Appeal from the PCRA Order January 23, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000198-2009


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 15, 2015

       Giacomo David Pisciotta appeals pro se from the order entered on

January 23, 2015, in the Luzerne County Court of Common Pleas, which

dismissed his petition for post-conviction collateral relief.1   Pisciotta seeks

relief from the judgment of sentence of an aggregate 150 to 300 months’

imprisonment imposed on October 30, 2009, following a negotiated guilty

plea agreement to one count each of robbery, burglary, and aggravated

assault.2 Based on the following, we affirm.

       Pisciotta’s convictions stem from the January 6, 2009, home invasion

of a then-71-year-old victim, who was beaten and sustained numerous
____________________________________________


1
    See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 3701(a)(1)(i), 3502(a), and 2702(a)(1).
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injuries.3   On January 7, 2009, the Hazleton Police Department filed 12

charges against Pisciotta:           three counts of robbery, two counts of

aggravated assault, two counts of simple assault, one count of burglary, one

count of criminal trespass, one count of theft by unlawful taking, one count

of terroristic threats, and one count of recklessly endangering another

person.

       On June 18, 2009, pursuant to a negotiated plea agreement, Pisciotta

plead guilty to the above-provided crimes.            All other charges were nolle

prossed. On October 30, 2009, the court sentenced Pisciotta to a term of 66

to 132 months’ incarceration for the robbery, a consecutive term of 30 to 60

months’ imprisonment for the burglary, and a consecutive term of 54 to 108

months’ incarceration for the aggravated assault.

       On November 6, 2009, Pisciotta, represented by new counsel, filed a

post-sentence      motion     for   reconsideration    of   sentence   pursuant   to

Pa.R.Crim.P. 720(A)(1), which was denied the same day. He did not file a

direct appeal, but did file a timely PCRA petition on February 19, 2010. A

PCRA hearing was held on May 24, 2010. On July 26, 2010, the PCRA court

issued an order denying Pisciotta’s petition. A panel of this Court affirmed

____________________________________________


3
     As the officers arrived on the scene, an individual, subsequently
determined to be Pisciotta, was observed fleeing. Pisciotta was apprehended
and identified shortly thereafter. Pisciotta confessed to breaking into the
victim’s home, hitting him four to five times with a baseball bat, and
knocking him down the steps.



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the PCRA court’s order on August 8, 2011.            See Commonwealth v.

Pisciotta, 32 A.3d 825 [1460 MDA 2010] (Pa. Super. 2011) (unpublished

memorandum).         Pisciotta did not petition for allowance of appeal to the

Pennsylvania Supreme Court.

       On November 6, 2012, Pisciotta filed, pro se, a second PCRA petition.

On February 22, 2013, the court issued an order dismissing Pisciotta’s

petition.   Pisciotta appealed, and a panel of this Court again affirmed the

PCRA court’s order, concluding the petition was untimely and it did not have

jurisdiction to review the merits of Pisciotta’s claims. See Commonwealth

v. Pisciotta, 87 A.3d 886 [506 MDA 2013] (Pa. Super. 2013) (unpublished

memorandum).

       On October 20, 2014, Pisciotta filed the present PCRA petition, his

third. On January 13, 2015, the PCRA court issued its notice of its intention

to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On

January 23, 2015, the court entered an order, dismissing the petition.

Pisciotta filed a response to the court’s Rule 907 notice on January 29, 2015.

This pro se appeal followed on February 17, 2015.4

       Pisciotta raises the following issues on appeal:


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4
   The PCRA court did not order Pisciotta to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). On May 29, 2015, the
court issued an opinion under Pa.R.A.P. 1925(a), adopting its rationale for
dismissing the petition in its January 13, 2015, Rule 907 notice.



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         A) Were [Pisciotta]’s Sixth Amendment rights violated by an
            unconstitutional sentence enhancement?

         B) Did [the] trial court judge abuse the discretionary aspect
            of the imposition of sentence?

         C) Were [Pisciotta]’s Fourteenth Amendment rights violated
            by an unconstitutional sentence enhancement?

         D) Did [the] trial [court] violate Pa.R.CRIM.Pro 907(1) by not
            allotting the amount of time given by said rule.

Pisciotta’s Brief at 3.

      Our standard of review is as follows:

      Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination and
      whether the PCRA court’s decision is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations

omitted).

      “Crucial to the determination of any PCRA appeal is the timeliness of

the underlying petition. Thus, we must first determine whether the instant

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

      The PCRA timeliness requirement … is mandatory and
      jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
      1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
      A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
      1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
      petition’s untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S. Ct. 2695 (U.S. 2014).

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       A PCRA petition must be filed within one year of the date the

underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment

is deemed 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 review.” 42 Pa.C.S.

§ 9545(b)(3).       Here, Pisciotta’s post-sentence motion was denied on

December 3, 2009.           He did not file a direct appeal.   Accordingly, his

sentence became final on January 4, 2010, when his time to file a direct

appeal with this Court expired. See Pa.R.A.P. 903(a).5 Therefore, pursuant

to Section 9545(b)(1), Pisciotta had one year from the date his judgment of

sentence became final to file a PCRA petition.       See Taylor, supra.    The

instant petition was not filed until October 20, 2014, making it patently

untimely.

       An untimely PCRA petition may, nevertheless, be considered if one of

the following three exceptions applies:

       (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


____________________________________________


5
    The thirtieth day, January 2, 2010, fell on a Saturday.



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       (iii) the right ascertained 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). Furthermore, a PCRA petition alleging any of

the exceptions under Section 9545(b)(1) must be filed within 60 days of the

date when the PCRA claim could have first been brought.             42 Pa.C.S.

§ 9545(b)(2).

       Moreover, we are mindful that “although this Court is willing to

construe liberally materials filed by a pro se litigant, pro se status generally

confers no special benefit upon an appellant.” Commonwealth v. Lyons,

833 A.2d 245, 252 (Pa. Super. 2003) (citation omitted), appeal denied, 879

A.2d 782 (Pa. 2005). It merits mention that Piciotta’s brief is lacking and

disjointed at some points. While he sets forth four issues in his questions

presented for review, it appears his brief only addresses the following two

claims: (1) the court imposed an illegal sentence under Alleyne v. United

States, 133 U.S. 2151 (2013),6 when it applied the deadly weapon

enhancement to his sentencing guideline range;7 and (2) the PCRA court

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6
   In Alleyne, the United States Supreme Court held “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at
2155 (emphasis supplied).
7
  See 204 Pa.Code § 303.10(a)(2). Specifically, Pisciotta states: “Because
[he] took a plea, the enhancement was not proven with a beyond a
(Footnote Continued Next Page)


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violated Rule 907 by filing its order dismissing his PCRA petition before the

allotted 20-day time period ended. See Pisciotta’s Brief at 8-9.

      With respect to his first issue, this claim fails for several reasons. We

note, at the outset, Pisciotta does not allege that he received a mandatory

sentence that would implicate the United States Supreme Court decision in

Alleyne.8

      Additionally, because he filed this third PCRA petition on October 20,

2014, more than a year after Alleyne was decided on June 17, 2013, he

failed to satisfy the 60-day requirement of Section 9545(b)(2).             See

Commonwealth v. Cintora, 69 A.3d 759, 763–764 (Pa. Super. 2013) (“To

fulfill the 60-day requirement [of 42 Pa.C.S. § 9545(b)(2)], Appellants

needed to file their petitions within 60 days from the date of the court’s

decision.”), appeal denied, 81 A.3d 75 (Pa. 2013). Likewise, “[o]ur Courts

have expressly rejected the notion that judicial decisions can be considered

newly-discovered facts which would invoke the protections afforded by

section 9545(b)(1)(ii).” Id. at 763 (citation omitted). Therefore, Alleyne, a

judicial decision, is not a “fact” that satisfies Section 9545(b)(1)(ii).
                       _______________________
(Footnote Continued)

reasonable doubt standard, rather it was found with a preponderance of the
evidence standard.”   Pisciotta’s Brief at 8.    Moreover, he states the
enhancement factors were not included in the indictment, which he alleges
the Commonwealth was required to put forth. Id.
8
  Indeed, a panel of this Court previously indicated Pisciotta’s sentence was
at the bottom of the standard range. See Pisciotta, 32 A.3d 825 [1460
MDA 2010 at 12] (Pa. Super. 2011) (unpublished memorandum).



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       Furthermore, Alleyne would not provide Pisciotta with relief under the

exception at Section 9545(b)(1)(iii) because “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.”

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).9,          10



       With respect to Pisciotta’s remaining argument, in which he complains

the PCRA court violated Rule 907 by filing its order dismissing his PCRA

petition before the allotted 20-day time period ended, we agree. Rule 907

provides:

       (1) the judge shall promptly review the petition, any answer by
       the attorney for the Commonwealth, and other matters of record
       relating to the defendant's claim(s). If the judge is satisfied from
       this review that there are no genuine issues concerning any
____________________________________________


9
  See also Commonwealth v. Riggle, 2015 Pa. Super. 147 [1112 MDA
2014] (Pa. Super. 2015) (stating that Alleyne does not retroactively apply).
10
     See also Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10
(Pa. Super. 2014) (noting, sua sponte, that the trial court’s application of
the deadly weapon enhancement did not violate Alleyne; “If the
enhancement applies, the sentencing court is required to raise the standard
guideline range; however, the court retains the discretion to sentence
outside the guideline range.”), appeal denied, 104 A.3d 1 (Pa. 2014);
Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015) (holding
the application of the school zone enhancement, set forth in the same
statute as the deadly weapon enhancement, did not violate Alleyne; “By
their very character, sentencing enhancements do not share the attributes of
a mandatory minimum sentence that the Supreme Court held to be elements
of the offense that must be submitted to a jury. The enhancements do not
bind a trial court to any particular sentencing floor, nor do they compel a
trial court in any given case to impose a sentence higher than the court
believes is warranted. They require only that a court consider a higher
range of possible minimum sentences.”).



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       material fact and that the defendant is not entitled to post-
       conviction collateral relief, and no purpose would be served by
       any further proceedings, the judge shall give notice to the
       parties of the intention to dismiss the petition and shall state in
       the notice the reasons for the dismissal. The defendant may
       respond to the proposed dismissal within 20 days of the date
       of the notice. The judge thereafter shall order the petition
       dismissed, grant leave to file an amended petition, or direct that
       the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis added). It is clear from a plain reading of

this rule that Pisciotta had a full 20 days to respond. Indeed, his January

29, 2015, response was filed well within the 20-day period.        By filing its

order dismissing Pisciotta’s petition only 10 days after it issued the Rule

907 notice, the PCRA court did not adhere to the rule.

       Nevertheless, Pisciotta does not explain how the PCRA court’s

determination would have been different had it considered his January 29,

2015, response to the Rule 907 notice prior to denying his petition. Indeed,

a review of his response reveals he reiterates his legality of sentence claim

in the context of Alleyne and raises a discretionary aspects of sentencing

argument.11       As such, Pisciotta “has not demonstrated that he was

prejudiced by the court’s failure to consider his responses to the Rule 907


____________________________________________


11
    Our discussion, supra, addresses Pisciotta’s Alleyne assertion. With
respect to his discretionary aspects of sentencing issue, we note where an
appellant “could have raised a discretionary attack on his sentence on direct
appeal from his sentence but failed to do so[,]” the issue is waived pursuant
to 42 Pa.C.S. § 9543(a)(3). Commonwealth v. McGriff, 638 A.2d 1032,
1035 (Pa. Super. 1994).



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notice prior to denying his petition.” Commonwealth v. Feliciano, 69 A.3d

1270, 1277 (Pa. Super. 2013).

          As such, we conclude Pisciotta is entitled to no relief based upon his

failure to pled and prove the applicability of a PCRA timeliness exception.

Therefore, there is no basis upon which to disturb the PCRA court’s denial of

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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