J-S34026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL A. WASHINGTON

                            Appellant                No. 3822 EDA 2016


            Appeal from the PCRA Order Dated November 15, 2016
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0003003-2005
                                         CP-15-CR-0003130-2005
                                         CP-15-CR-0005357-2005
                                         CP-15-CR-0005974-2005

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                       FILED SEPTEMBER 11, 2017

        Appellant, Michael A. Washington, appeals pro se from the order

dismissing his second petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        In our prior memorandum decision resolving Appellant’s first PCRA

petition, we set forth the following background:

        In docket number 5357-2005, appellant was convicted by a jury
        of one (1) count of Possession of a Controlled Substance with the
        Intent to Deliver (“PWID”) cocaine, one count of Possession of a
        Controlled Substance (cocaine), and one (1) count of Possession
        of Drug Paraphernalia.     On May 31, 2006, [Appellant] was
        sentenced on the one count of PWID to three (3) to six (6)
        years’ incarceration in a state correctional institution.      No
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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      sentence was imposed on the Possession of Drug Paraphernalia
      or Possession of a Controlled Substance counts.    Appellant
      received credit for time served.

      In docket number 5974-2005, appellant entered a negotiated
      guilty plea to one (1) count of Persons Not to Possess a Firearm
      and one (1) count of PWID (cocaine). On the one count of
      Persons Not to Possess a Firearm, appellant was sentenced to
      five (5) to ten (10) years’ incarceration in a state correctional
      institution.   This sentence was to run consecutive to the
      sentence imposed in docket number 5357-2005. On the one
      count of PWID, appellant received five (5) years of probation to
      be served consecutive to the sentence imposed on the Persons
      Not to Possess a Firearm charge. As part of this negotiated plea
      agreement, the sentences imposed in docket numbers 3003-
      2005 and 3130-2005 were to run concurrent with the sentences
      imposed in this case and also with docket number 5357-2005.

      In docket number 3003-2005, appellant plead guilty pursuant to
      a negotiated guilty plea to two (2) counts of PWID (cocaine).
      Appellant was sentenced on count one to two (2) to four (4)
      years’ incarceration in a state correctional institution. On count
      two of that same information, appellant was sentenced to two
      (2) to four (4) years’ incarceration in a state correctional
      institution. The second PWID count was imposed concurrent
      with the first count. The sentences imposed in this docket
      number were to run concurrent with the sentences imposed in
      docket numbers 5357-2005 and 5974-2005.

      In docket number 3130-2005, appellant plead guilty pursuant to
      a negotiated guilty plea to one (1) count of PWID (cocaine).
      Appellant was sentenced on the one count of PWID to two (2) to
      four (4) years’ incarceration in a state correctional institution
      followed by two (2) years of consecutive probation.          The
      sentence imposed in this docket number was to run concurrent
      to the sentences imposed in docket numbers 5357-2005 and
      5974-2005.

Commonwealth v. Washington, No. 1157 EDA 2016, at 1-2 (Pa. Super.

Sept. 23, 2016) (citation to the record omitted).




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      Appellant never filed a direct appeal.       Appellant completed his

sentence for Docket Number 3003-2005 in 2010 and his sentence for Docket

Number 5357-2005 in 2011. On August 20, 2015, Appellant was found in

violation of his probation for Docket Numbers 3150-2005 and 5974-2005

and was sentenced to two to five years’ incarceration.

      On November 12, 2015, appellant filed a pro se PCRA petition
      with this Court. On November 24, 2015, Robert P. Brendza,
      Esquire, was appointed to represent appellant in all matters
      pertaining to the Petition.    On February 2, 2016, Attorney
      Brendza petitioned the Court for leave to withdraw as PCRA
      counsel, filing a “no-merit” letter pursuant to the procedures
      outlined in Commonwealth v. Turner, 544 A.2d 927 (Pa.
      1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
      1988) (en banc).

                                *     *    *

      On March 22, 2016, the PCRA court entered an order dismissing
      appellant’s PCRA petition, rejecting appellant’s argument that
      Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151
      (2013), should be applied retroactively in his case. The PCRA
      court also granted Attorney Brendza leave to withdraw as PCRA
      counsel.

Washington, No. 1157 EDA 2016, at 2-4 (citation to the record omitted).

On September 23, 2016, this Court affirmed the dismissal of the first PCRA

petition. Id. at 1, 8.

      Appellant then filed the current PCRA petition. The handwritten date

on the second PCRA petition is September 28, 2016; the date on its




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accompanying certificate of service is the same.1 On September 30, 2016,

this second PCRA petition was received by the Chester County Clerk of

Court. Pursuant to the “prisoner mailbox rule,” we will consider Appellant’s

current PCRA petition filed as of September 28, 2016. Commonwealth v.

Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016) (“under the ‘prisoner

mailbox rule’ a document is deemed filed when placed in the hands of prison

authorities for mailing”).

       On October 21, 2016, the trial court entered a notice of its intent to

dismiss Appellant’s second PCRA petition pursuant to Pa.R.Crim.P. 907.

According to its accompanying certificate of service, on November 6, 2016,

Appellant mailed a response to that notice to the chambers of the Honorable

William P. Mahon and to the Chester County District Attorney’s Office, but

not to the Chester County Clerk of Courts. The response was postmarked on

November 8, 2016.         Order, 11/15/16, at 1 n.1.     Judge Mahon’s chambers

received the response on November 14, 2016. The record is unclear as to

how it was transferred to the Chester County Clerk of Courts, but, from the

notation on the docket, “Received in chambers 11-14-16 and filed with

Clerks   on    11-15-2016,”      we    presume   that   Judge   Mahon’s   chambers
____________________________________________
1
   Neither the Commonwealth nor the PCRA court have contended that the
PCRA court could not consider Appellant’s September 28, 2016 PCRA petition
until after the time expired for Appellant to seek Supreme Court review of
this Court’s September 23, 2016 affirmance of the dismissal of Appellant’s
first PCRA petition, and, in light of our disposition, we do not address that
question here. See generally Commonwealth v. Lark, 698 A.2d 43 (Pa.
1997).


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forwarded the response to the Chester County Clerk of Courts, where it was

officially filed on November 15, 2016.

         On that same day, November 15, 2016, the trial court entered an

order dismissing Appellant’s second PCRA petition as “both untimely and

fail[ing] to establish one of the enumerated exceptions to the one year

requirement under the PCRA.” Order, 11/15/16, at 1 n.1.

         On December 9, 2016, Appellant filed a notice of appeal to this Court.

He simultaneously filed a statement of matters complained of on appeal but

did not serve the PCRA court, in contravention of Pa.R.A.P. 1925(b)(1)

(“Appellant shall file of record the Statement and concurrently shall serve

the judge”). On December 19, 2016, the PCRA court ordered Appellant “to

file of record and serve upon” the PCRA court “a concise statement . . . of

errors complained of on appeal” within twenty-one days of the date of the

order. Appellant did not comply. Nevertheless, because Appellant did file a

Rule 1925 Statement on December 9, 2016, we will not find waiver on this

basis.

         Appellant has raised the following issues for this court’s review, which

we repeat verbatim:

         A.     Does not the decision of the Pennsylvania Supreme Court
         in Commonwealth v. Vasquez, 744 A.2d 128[0] (Pa. 2000),
         which held that non-compliance with Pa.R.Crim.[P. 720] and [42
         Pa.C.S. §] 5505 creates no bar to reviewing the application by
         the trial court of 42 Pa. C.S. § 9714?

         By relying upon the Pennsylvania Supreme Court’s interpretation
         of the relevant law that non-compliance with [the Pennsylvania

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     Rules of Criminal Procedure] creates no bar to reviewing the
     application by the trial court, does not the Pennsylvania
     Supreme Court in Commonwealth v. Vasquez, 744 A.2d [at]
     1284[, and] in Commonwealth v. Barndt, 74 A.3d [185,] 196-
     97 ([Pa. Super.] 2013), constitute illegal sentencing claims
     exception to the time bar should accommodate claims of a post-
     conviction petitioner’s proof, which is a central concern
     underlying both the PCRA and traditional writ of habeas corpus
     review?

     By applying coexisting case law that trial courts never relinquish
     their jurisdiction in its holding in Commonwealth v. Vasquez,
     744 A.2d at 1284 [] (citing Commonwea[l]th v. Smith, [598
     A.2d 268] (Pa. 1991) (same)[)], does not the Pennsylvania
     Supreme Court establish an exception to the time constraints
     under the Pennsylvania Post Conviction Relief Act, 42 Pa. C.S.
     [§] 9542, action established in 42 Pa. C.S. pt. VIII, ch. 95,
     subch. B 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 subch. B takes effect?

     B.     Does not the recent decision of the United States Supreme
     Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), and
     its progeny, Commonwealth v. Newman, 99 A.3d 86 (2014),
     including Commonwealth v. Wately A.3d 108, 117 (Pa. Super.
     2013), Commonwealth v. Valentine, 2014 Pa. Super 220,
     2014 WL-4942256, 2014 Pa. Super. Lexis 3420 (2014);
     Commonwealth v. [Hopkins,] 117 A.3d 247 (Pa. 2015), and
     Commonwealth v. Wolfe, [140 A.3d 651] (Pa. 2016),
     constitute illegal sentencing claims that any 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?

     By relying upon the recent developments in the area of the Sixth
     Amendment, and the Due Process Clause in Alleyne v. United
     States,    133.    U.S.   2151     (2013),     and   its   progeny,
     Commonwealth v. Newman, 99 A.3d 86 (2014), including
     Commonwealth v. Wolfe, [140 A.3d 651] (Pa. 2016), does not
     the Pennsylvania Supreme Court’s state law conclusion pursuant
     to 1 Pa. C.S. § 1925 Constitutional Construction of Statutes,
     extrapolates from the holding in Alleyne rendering those
     Pennsylvania mandatory sentencing statutes that do not pertain
     to prior convictions constitutionally infirm insofar as they permit
     a judge to automatically increase a defendant’s sentence based

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J-S34026-17


      on a preponderance of the evidence standard, constitute that
      non-compliance with Pa.R.Crim. Proc’s creates no bar to
      reviewing the application by the trial court?

      C.     Does not the PCRA Court’s Answer fail to address
      Petitioner’s illegal sentencing claims that non-compliance with
      Pa.R.Crim. Proc’s create no bar to reviewing the application by
      the trial court in any meaningful way, for it also fails to even
      mention the applicability of 42 Pa. C.S. § 9542 action established
      in 42 Pa. C.S. pt. VIII, ch. 95, subch. B 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 subch. B takes effect, before denying the PCRA motion as
      without merit and untimely filed?

Appellant’s Brief at 1-3 (some formatting altered).

      Our standard of review of an order dismissing a petition under the

PCRA requires that we determinate whether the order is supported by the

evidence of record and is free of legal error.     Commonwealth v. Halley,

870 A.2d 795, 799 n.2 (Pa. 2005).

      Preliminarily, we note that Appellant is no longer serving sentences at

Docket Numbers 3003-2005 and 5357-2005.               To be eligible for relief

pursuant to the PCRA, a petitioner must be currently serving a sentence of

imprisonment,    probation,   or   parole.    42    Pa.C.S.   §   9543(a)(1)(i);

Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997).                  Because

Appellant is not currently serving a sentence at either of these two docket

numbers, he is not entitled to relief pursuant to the PCRA for any convictions

under these two dockets.      We therefore only examine his PCRA petition

claims with respect to Docket Numbers 3150-2005 and 5974-2005, under

which he is still serving a sentence.

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      The     timeliness    of   a    post-conviction      petition    is    jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges and the petitioner proves one of the

following three exceptions to the time limitations set forth in Section

9545(b)(1) of the statute:

      (i) the failure to raise the claim previously was the result of
      interference of 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.

A PCRA petition invoking one of these statutory exceptions must “be filed

within 60 days of the date the claims could have been presented.”

Hernandez, 79 A.3d at 651-52 (citing 42 Pa.C.S. § 9545(b)(2)). Asserted

exceptions to the time restrictions in the PCRA must be included in the

petition    “and   may     not   be   raised   for   the    first     time   on   appeal.”

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal

denied, 959 A.2d 927 (Pa. 2008).




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       A probation revocation proceeding may give rise to a limited PCRA

remedy, but only in limited situations will a probation revocation “reset the

clock” on a PCRA petition. Commonwealth v. Garcia, 23 A.3d 1059, 1062

n.3 (Pa. Super. 2011), appeal denied, 38 A.3d 823 (Pa. 2012). While an

offender may file a PCRA petition within one year following the conclusion of

the direct review of any new sentence imposed following a revocation of

probation, the only issues that may be raised in such a PCRA petition relate

to the validity of the revocation proceeding and the legality of any new

sentence that was imposed.           Commonwealth v. Fowler, 930 A.2d 586,

592 (Pa. Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008);

Commonwealth v. Ballard, 814 A.2d 1242, 1244 (Pa. Super. 2003).

       Here, we cannot tell from his brief whether Appellant is challenging the

legality of his initial sentence or of the sentence imposed pursuant to his

probation revocation.2 If Appellant is challenging the legality of his original

sentence, entered on May 31, 2006, then his judgment of sentence became

final on June 30, 2006, when the 30-day period for filing a direct appeal

expired. Pa.R.A.P. 903(a). Thus, Appellant would have had to file any PCRA




____________________________________________
2
  Because Appellant’s brief does not make any mention of his probation
revocation but does reference his mandatory minimum sentence, we believe
that he is likely challenging his original sentence imposed on May 31, 2006.
See Appellant’s Brief at 2, 4-6, 8, 10.



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petition one year thereafter, i.e., by July 2, 2007.3                  If Appellant is

challenging    the    legality   of   his    revocation-of-probation    sentence,   his

probation revocation “reset the clock” for his PCRA petition. See Garcia, 23

A.3d at 1062 n.3; Fowler, 930 A.2d at 592; Ballard, 814 A.2d at 1244. He

did not file a direct appeal of his probation revocation, and his sentence

therefore    became     final    on   September      21,   2015.4   Pa.R.A.P.   903(a).

Therefore, Appellant would have had to file any PCRA petition one year

thereafter, i.e., by September 21, 2016. Appellant’s second PCRA petition,

filed on September 28, 2016, was therefore patently untimely for either

sentence unless Appellant pleaded and proved one of the three time-bar

exceptions.

       Appellant did not plead any of the time-bar exceptions for his first and

third issues.5 For his second challenge, relating to Alleyne and its progeny,

Appellant relies on the third exception – that “the right asserted is a

____________________________________________
3
  One year after June 30, 2006, was Saturday, June 30, 2007; the next
business day thereafter was Monday, July 2, 2007. 1 Pa.C.S. § 1908.
4
  Thirty days after Appellant’s sentence for violation of his probation was
Saturday, September 19, 2015; the next business day thereafter was
Monday, September 21, 2015. 1 Pa.C.S. § 1908.
5
   “Although 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.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013)
(citing Fowler, 930 A.2d at 592). “[E]ven claims that a sentence was
illegal, an issue deemed incapable of being waived, are not beyond the
jurisdictional time restrictions.” Commonwealth v. Grafton, 928 A.2d
1112, 1114 (Pa. Super. 2007).


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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)(iii). See Appellant’s Brief at 2-4, 9, 12. In response,

the Commonwealth, along with the PCRA court, notes that Appellant did not

file his second PCRA petition within sixty days of the date that Alleyne was

decided. Commonwealth’s Brief at 7, 12; Notice of Intent to Dismiss PCRA

Pet. Pursuant to Pa.R.Crim.P. 907(1), 10/21/26, at 4-5 n.1.6

       We agree with the PCRA court that Appellant’s petition is untimely.

Alleyne was decided on June 17, 2013, and Appellant did not file his current

PCRA petition until September 28, 2016 – more than “60 days [after] the


____________________________________________
6
  The Commonwealth further argues that Appellant is not eligible for relief
because he is no longer serving the original sentences of imprisonment;
rather, he is currently serving the violation-of-probation sentences that were
imposed after he violated the probation on his original sentences. See
Commonwealth’s Brief at 12-13. However, a violation of probation is not
considered a separate offense, but an element of the original sentence. See
Commonwealth v. Pierce, 441 A.2d 1218, 1220 (Pa. 1982) (“The
imposition of total confinement upon revocation of appellant’s probation was
not a second punishment for his robbery conviction, but was an integral
element of the original conditional sentence”); Commonwealth v. Colding,
393 A.2d 404, 405-06 (Pa. 1978) (the revocation of probation and the
imposition of a term of total confinement did not violate the double jeopardy
clause, since the defendant was given one conditional sentence which
merely deferred sentencing the defendant to a fixed term of total
confinement until such time as he violated the conditions of probation); see
also 42 Pa.C.S. § 9771(b) (“Upon revocation the sentencing alternatives
available to the court shall be the same as were available at the time of
initial sentencing, due consideration being given to the time spent serving
the order of probation”).


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date the claim could have been presented.”         42 Pa.C.S. § 9545(b)(2). 7

Based on the foregoing, the PCRA court correctly concluded that it lacked

jurisdiction to consider Appellant’s second PCRA petition because it is time-

barred. We therefore affirm the PCRA court’s order denying Appellant post-

conviction relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017




____________________________________________
7
  Assuming this allegation of error were timely, it still would not entitle
Appellant to relief because it was previously litigated and rejected by this
Court. 42 Pa.C.S. § 9544(a)(3) (an issue has been previously litigated if “it
has been raised and decided in a proceeding collaterally attacking the
conviction or sentence”); see Washington, No. 1157 EDA 2016, at 4-5
(raising following issue in Appellant’s first PCRA Petition: “Does Not A
Challenge To A Sentence Pursuant to Alleyne v. United States, 133 S.Ct.
2151 (2013), implicate[] the legality of the sentence and is therefore non-
waivable?”).


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