J-S22010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    KEON SLOAN,

                             Appellant               No. 2712 EDA 2017


               Appeal from the PCRA Order Entered July 11, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1201211-2004


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 25, 2018

        Appellant, Keon Sloan, appeals pro se from the July 11, 2017 order that

dismissed, as untimely, his request for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.       After careful

review, we affirm.

        The PCRA court provided the factual and procedural history for this

matter as follows:

              On June 14, 2004, around 4:00 a.m., the two victims were
        asleep in a house located … in Philadelphia, Pennsylvania when
        Appellant and two co-defendants forced their way into the house.
        The three armed men went inside one victim's bedroom,
        demanding money. The victim was shot in the lower leg by a co-
        defendant. Then, the co-defendant passed the gun to Appellant,
        who continued to shoot at the victim until he had emptied his
        weapon. Appellant's shots missed the victim. As a result of the
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*   Retired Senior Judge assigned to the Superior Court.
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     shooting, this victim was hospitalized for two days for surgery.
     Hardware was permanently inserted into his lower leg.

           The other victim, who was located in another room, was
     awakened by the sound of gunshots. The two co-defendants
     found the victim and shot him a total of thirteen times. As a result
     of the shooting, the second victim required heart-bypass surgery,
     was hospitalized for two months, and became permanently
     disabled. His left arm was paralyzed, and six bullets that could
     not be surgically removed were left in his body, posing possible
     future complications.

            Following a jury trial from September 26, 2005 to October
     7, 2005, Appellant was convicted of burglary (18 Pa.C.S. § 3502),
     aggravated assault (18 Pa.C.S. § 2702), [carrying a firearm
     without a license] (18 Pa.C.S. § 6106), possession of an
     instrument of crime (18 Pa.C.S. § 907); and criminal conspiracy
     (18 Pa.C.S. § 903). On December 2, 2005, Appellant was
     sentenced to three consecutive terms of 10 to 20 years'
     incarceration for the aggravated assault, burglary, and criminal
     conspiracy charges. The aggregate term amounted to 30 to 60
     years' incarceration. Sentence was suspended on the weapons
     violations. Additional conditions of parole or probation included
     obtaining education, anger management, psychiatric counseling,
     drug rehabilitation, and mandatory court costs.

           Appellant filed a direct appeal challenging the judgment of
     sentence, raising numerous claims of trial court error.1 See
     Commonwealth v. Sloan, … 938 A.2d 1121 (Pa. Super. 2007)
     (unpublished mem[orandum]), appeal denied, 940 A.2d 364 (Pa.
     2007). The judgment of sentence was affirmed. … The Superior
     Court, in relevant part, found Appellant's excessive sentencing
     claim waived because Appellant failed to challenge his sentence
     during the proceedings and failed to file a post-sentence motion.
     [65 EDA 2006] at 15-16. On December 20, 2007, our Supreme
     Court denied his petition for allowance of appeal. Appellant filed
     a petition for writ of certiorari with the United States Supreme
     Court, which was denied on April 28, 2008.              Sloan v.
     Pennsylvania, 553 U.S. 1024 (2008).

        1 On direct appeal, Appellant argued that the court erred or
        abused its discretion by (1) failing to dismiss the case
        pursuant to Pa.R.Crim.P. 600; (2) excluding the public from
        the courtroom during a portion of the voir dire; (3)
        mishandling the voir dire and jury selection; (4) quashing a

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        subpoena issued to an assistant district attorney and
        sustaining the Commonwealth's objection to defense
        counsel's questioning of a detective; (5) sustaining the
        Commonwealth's objection to a victim[’s] being questioned
        about his bias toward the Commonwealth; (6) denying his
        motion to preclude a detective from testifying; (7)
        overruling his objections to a detective's testimony; and (8)
        issuing an erroneously calculated and excessive sentence.
        Commonwealth v. Sloan, 65 EDA 2006[, unpublished
        memorandum] at 3-4 [(Pa. Super. filed September 14,
        2007)].

            On December 22, 2008, Appellant filed his first PCRA
     petition and counsel was appointed. Subsequently, the PCRA
     counsel filed a Finley "no merit" letter in accordance with
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and
     requested leave to withdraw pursuant to Commonwealth v.
     Turner, 544 A.2d 927 (Pa. 1988). [Appellant’s] PCRA counsel
     found that the petition lacked merit because "each and every one
     of the Petitioner's claims were raised on direct appeal and rejected
     by the Superior Court." Finley Letter from Pasquale Colavita,
     Esq. to PCRA Court (June 26, 2009) at 2. Since the issues were
     previously litigated, the PCRA counsel argued that Appellant's
     claims were unreviewable. Upon review, the [PCRA] court agreed.
     On July 31, 2009, the court issued its Pa.R.Crim.P. 907 notice of
     intent to dismiss the petition. On September 4, 2009, the court
     formally dismissed Appellant's petition. Thereafter, on September
     17, 2009, Appellant filed a notice of appeal. On September 9,
     2010, the Superior Court affirmed. See Commonwealth v.
     Sloan, [] 13 A.3d 976 (Pa. Super. 2010) [(unpublished
     memorandum)], appeal denied, 13 A.3d 976 (Pa. 2011). On July
     25, 2011, our Supreme Court denied his petition for allowance of
     appeal.

           On October 11, 2016, Appellant, acting pro se, filed this
     instant PCRA petition. Appellant alleged that both trial and
     appellate counsel provided ineffective assistance for failing to
     object to certain jury charges and that his aggravated assault
     conviction merged with robbery at sentencing. On December 6,
     2016, the [PCRA] court issued its Pa.R.Crim.P. 907 notice of intent
     to dismiss the petition as without merit. Appellant timely filed a
     response to the court's notice of intent to dismiss. By Order dated
     July 11, 2017, the court dismissed the petition, and this timely
     appeal followed.


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PCRA Court Opinion (PCO), 9/29/17, at 1-4.1

       First, we must address the timeliness of Appellant’s notice of appeal.

On November 6, 2017, this Court issued a rule to show cause “why this appeal

should not be quashed as untimely filed on August 14, 2017, from the denial

of the petition for post-conviction relief on July 11, 2017.” Order, 11/6/17, at

1 (single page). Subsequently, this Court issued an order rescinding the rule

to show cause, leaving the issue to this panel. Order, 2/7/18, at 1 (single

page). Our review of the certified record indicates that Appellant’s notice of

appeal was time-stamped by the PCRA court on August 1, 2017. Accordingly,

we deem Appellant’s notice of appeal to have been timely filed.

       Next, we recognize Appellant’s brief does not conform to the Rules of

Appellate Procedure. His brief, inter alia, does not contain any statement of

the questions involved as required by Pa.R.A.P. 2111(a)(4) and 2116.

Nevertheless, we can readily ascertain that Appellant claims that his sentence

is illegal pursuant to Alleyne v. United States, 570 U.S. 99 (2013).         He

asserts two exceptions to the PCRA timeliness requirements, 42 Pa.C.S. §

9545(b)(1)(ii) and (b)(1)(iii).       He first claims the Alleyne decision was a

newly-discovered fact and, second, that the Alleyne decision applies

retroactively.


____________________________________________


1 While the PCRA court’s Rule 907 notice stated that Appellant’s PCRA petition
lacked merit, the court’s opinion indicates that his petition was denied as
untimely. PCO at 5. Appellant has not raised any issues concerning the PCRA
court’s Rule 907 notice in his brief.

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      This Court’s standard of review, regarding an order denying a petition

filed under the PCRA, is whether the determination of the PCRA court is

supported   by   the   evidence    of   record   and   is   free   of   legal   error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin

by addressing the timeliness of Appellant’s petition, because the PCRA time

limitations implicate our jurisdiction and may not be altered or disregarded in

order to address the merits of a petition. Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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
            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.



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42 Pa.C.S. § 9545(b)(1)(i)-(iii).        Any petition attempting to invoke one of

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

been presented.” 42 Pa.C.S. § 9545(b)(2).

       First, Appellant appears to attempt to invoke the newly-discovered fact

exception to the PCRA’s timeliness requirements, Section 9545(b)(1)(ii). In

this regard, he asserts that the Alleyne decision is a newly-discovered fact of

which he was previously unaware. See Appellant’s Brief at 4-5. This claim is

meritless. Our Supreme Court has held “that subsequent decisional law does

not amount to a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.”

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

       Second, Appellant asserts that the Alleyne decision satisfies the

retroactive-right exception pursuant to Section 9545(b)(1)(iii).      Appellant’s

Brief at 4.    However, as this Court has recognized: “Even assuming that

Alleyne did announce a new constitutional right, 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).2

Accordingly, this claim is also meritless.

       Third, we address Appellant’s assertion that, once he learned of the

Alleyne decision, he had asked “the United States Supreme Court for a stay
____________________________________________


2 Indeed, following this Court’s decision in Miller, our Supreme Court held
that Alleyne does not apply retroactively to collateral attacks on mandatory
minimum sentences. See Commonwealth v. Washington, 142 A.3d 810
(Pa. 2016).

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or remand so that he c[ould] address the issues.” Appellant’s Brief at 5. This

claim is patently false. As noted above, Appellant’s writ of certiorari filed in

the United States Supreme Court was denied by the High Court on April 28,

2008. Alleyne was subsequently decided in 2013.

      For the above reasons, we conclude that the lower court’s order

dismissing Appellant’s PCRA petition as untimely is supported by the evidence

of record and free of legal error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/18




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