J-S14023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 3062 EDA 2018

                Appeal from the Order Entered August 29, 2018
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0003466-2013
                           CP-09-CR-0004089-2013


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 24, 2019

        Appellant Michael Riccitello appeals pro se from the order dismissing his

third Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant asserts

that he was sentenced using an unconstitutional mandatory minimum statute.

For the reasons that follow, we vacate the order entered in CP-09-CR-

0003466-2013 (3466-2013) because Appellant did not file his petition in that

case. We affirm the order entered in CP-09-CR-0004089-2013 (4089-2013).

        The parties are familiar with the facts of Appellant’s convictions.   Of

relevance to this appeal, Appellant was charged with robbery—threat of


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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immediate serious injury (robbery)2 and related offenses in 3466-2013 and

4089-2013.

        Appellant negotiated a guilty plea agreement for concurrent sentences

of ten to twenty years’ imprisonment for the robberies.          There was no

indication that the Commonwealth sought the imposition of mandatory

minimum sentences.

        On September 9, 2013, the trial court conducted a guilty plea hearing.

During the colloquy, the Commonwealth did not allege that Appellant

possessed a firearm during the robbery in 3466-2013. The Commonwealth

noted that Appellant did not display a firearm during the robbery in 4089-

2013. The Commonwealth indicated that Appellant gave a statement to police

that he possessed a firearm during the robbery in 4089-2013. The trial court

accepted Appellant pleas and, that same day, sentenced Appellant pursuant

to the negotiated agreement. Appellant did not file a direct appeal.

        On July 6, 2018, the PCRA court received the pro se PCRA petition that

gives rise to this appeal.3 Appellant captioned the petition under 4089-2013,

____________________________________________


2   18 Pa.C.S. §§ 3701(a)(1)(ii).

3 Appellant previously filed a timely first PCRA petition that was denied without
an evidentiary hearing on September 4, 2013. He subsequently filed a petition
for a writ of habeas corpus alleging he was detained without a written
sentencing order. The court denied that petition on March 10, 2015. Appellant
then filed a pro se “motion to proceed in forma pauperis pursuant to existing
rights” in 4089-2013, which the PCRA court dismissed as a second PCRA
petition on July 11, 2017. Therefore, we regard the instant petition as
Appellant’s third.


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and the court docketed and filed the petition in that case. In the petition,

Appellant asserted that he was illegally sentenced to a mandatory minimum

sentence for visible possession of a firearm during the commission of robbery.

See 42 Pa.C.S. § 9712(a) (setting forth a five-year mandatory minimum

sentence for visible possession of a firearm) (held unconstitutional in

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

       On August 2, 2018, the PCRA court filed Pa.R.Crim.P. 907 notices of

intent to dismiss in 3466-2013 and 4089-2013.       On August 29, 2018, the

court entered orders in both cases dismissing the petition.4

       Appellant filed timely notices of appeal in 3466-2013 and 4089-2103

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

statement. The PCRA court filed a responsive opinion.

       As a preliminary matter, we are constrained to vacate the order

dismissing Appellant’s PCRA petition in 3466-2013. As noted above, Appellant

filed the instant petition in 4089-2013. Appellant did not file a corresponding

petition in 3466-2013. Because there was no petition for the PCRA court to

dismiss in 3466-2013, the court’s actions in that case were nullities.5


____________________________________________


4 In its order dismissing Appellant’s petition, the PCRA court referred to
Appellant’s failure to file a response to its Rule 907 notices. However, the
record shows that Appellant filed a pro se response that was docketed on
August 22, 2018. The PCRA court addressed Appellant’s response in its
Pa.R.A.P. 1925(a) opinion.

5In any event, our reasons for affirming the August 29, 2018 order in 4089-
2013 would still apply.

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      Because Appellant filed a timely notice of appeal from the order in 4089-

2013, we will consider this appeal as it relates to 4089-2013.

      Appellant raises the following questions for our review:

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

      [2.] Did the [PCRA] 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.

      Appellant’s issues are closely related, and we address them together.

Appellant asserts that

      the PCRA [c]ourt erred in dismissing Appellant’s PCRA petition by
      failing to apply Alleyne . . . , which held that under the Sixth (6th)
      Amendment to the United States Constitution, any facts leading
      to an increased mandatory minimum sentence are “elements” of
      the crime and must be presented to the jury and proven beyond
      a reasonable doubt. Due to the fact that these “elements of the
      crime must be “proven beyond a reasonable doubt,” the new rule
      announced in Alleyne is a new element that must be proven.

      Thus, the mandatory minimum statutes that Appellant was
      sentenced under are unconstitutional, and as such, [are]now
      beyond the Commonwealth of Pennsylvania’s power to impose
      and continue to enforce.

Id. at 10 (citations omitted).     Appellant contends that Alleyne stated a

watershed rule of criminal procedure that should apply retroactively. Id. at

11.

      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


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A.3d 1, 4 (Pa. Super. 2014) (citation omitted). This Court “may affirm the

decision of the [PCRA] court if there is any basis on the record to support the

[PCRA] court’s action; this is so even if we rely on a different basis in our

decision to affirm.” Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.

Super. 2009) (citation omitted).

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

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 judgment becomes final.” 42

Pa.C.S. § 9545(b)(1). A judgment is 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.” 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


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      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 petitioner must file his petition

within sixty days of the date the claim could have been presented. See 42

Pa.C.S. § 9545(b)(2) (subsequently amended eff. Dec. 24, 2018).

      When asserting an exception under Section 9545(b)(1)(iii), a petitioner

may not rely on a new constitutional rule that does not apply to his conviction

or sentence. See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.

2016). For example, in Miller v. Alabama, 567 U.S. 460 (2012), the United

States Supreme Court held that the imposition of a mandatory life-without-

parole sentence on offenders under the age of eighteen constituted cruel and

unusual punishment.    See Furgess, 149 A.3d at 93. In Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), the United States Supreme Court

recognized that the right recognized in Miller applied retroactively.      See

Furgess, 149 A.3d at 94. The Furgess Court held that Miller and

Montgomery did not establish a time-bar exception for petitioners who were

eighteen years of age or older when they committed the crime of murder and

were sentenced to mandatory life-without-parole sentence.         Id.; accord

Commonwealth v. Hudson, 156 A.3d 1194, 1198 (Pa. Super. 2017)

(concluding that a defendant sentenced to twenty-five to fifty years’

imprisonment as a juvenile could not invoke Miller as an time-bar exception

under Section 9545(b)(1)(iii)), appeal denied, 170 A.3d 1007 (Pa. 2017).




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       Instantly, there is no dispute that Appellant’s petition was untimely on

its face. Appellant instead relies on Alleyne to establish a time-bar exception

under Section 9545(b)(1)(iii). However, the record contains no indication that

the Commonwealth requested a mandatory minimum sentence under Section

9712(a), or that the trial court imposed a mandatory minimum sentence.6

Accordingly, Appellant’s reliance on Alleyne is misplaced. See Furgess, 149

A.3d at 94.

       Therefore, we agree with the PCRA court that Appellant’s petition did

not state an exception under Section 9545(b)(1)(iii). See Lawson, 90 A.3d

at 4; Wiley, 966 A.2d at 1157. Because we find no error in the PCRA court’s

ruling, we affirm.

       Order in 4089-2013 affirmed. Order in 3466-2013 vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/19



____________________________________________


6  We add that the trial court sentenced Appellant to ten to twenty years’
imprisonment for robbery in 4089-2013. Because the sentence exceeded the
five-year mandatory minimum sentence previously called for in Section
9712(a), the sentence did not violate Alleyne. See Commonwealth v.
Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).


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