J-S19040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
MITCHELL HOWARD,                           :
                                           :
                   Appellant               :           No. 2790 EDA 2014

          Appeal from the PCRA Order entered on September 3, 2014
              in the Court of Common Pleas of Delaware County,
                Criminal Division, No. CP-23-CR-0005241-2004

BEFORE: STABILE, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED MAY 01, 2015

        Mitchell Howard (“Howard”), pro se, appeals the Order dismissing his

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1       We

affirm.

        The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we adopt for purposes of this appeal.      See PCRA Court

Opinion, 10/28/14, 1-3.2

        On appeal, Howard raises the following issue for our review: “Whether

[his] sentence [] is illegal and violates the Sixth Amendment to the United




1
    See 42 Pa.C.S.A. §§ 9541-9546.
2
 We observe that the PCRA court’s Opinion incorrectly indicates that the gun
used by Howard was reported stolen in July 2014 when, in fact, it was
reported stolen in July 2004. See PCRA Court Opinion, 10/28/14, 1.
J-S19040-15


States Constitution because the sentencing [j]udge relied upon conduct not

found by a [j]ury or admitted in a plea? Brief for Appellant at 3.

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Howard contends that his sentence is illegal under Alleyne v. United

States, 133 S. Ct. 2151 (2013), because the court, rather than a jury,

determined that he used a deadly weapon during the commission of a crime.

Brief for Appellant at 8.   Howard claims that his Petition, although facially

untimely, falls within two exceptions to the PCRA’s timeliness requirements.

Id. at 9. Howard asserts that his failure to file the instant Petition was the

result of government interference, entitling him to the timeliness exception

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i). Brief for Appellant at 9. Howard

also asserts that his Petition was filed within sixty days of the Alleyne

decision or a Blair County decision which clarified Alleyne, entitling him to

the timeliness exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). Brief for

Appellant at 9-10. Howard contends that the Alleyne decision and the Blair

County decision constitute after-discovered facts, which were unknown to

him and could not have been discovered through reasonable diligence. Id.

at 10. Howard asserts that a petition raising a claim that a sentence is a


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J-S19040-15


nullity should not be barred because the petition is untimely or the claim is

waived. Id. at 11.

     The PCRA court addressed Howard’s claim, set forth the relevant law,

and concluded that it lacks merit. See PCRA Court Opinion, 10/28/14, 3-7.

We agree with the sound reasoning of the PCRA court and affirm on this

basis. See id.

     Order affirmed.

     Jenkins, J., recused.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/1/2015




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   IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                         CRIMINAL DIVISION




COMMONWEALTH         OF PENNSYLVANIA                   CP-23-CR-5241-2004

                     vs.

        MITCHELL HOWARD A/K/A
           HOWARD MITCHELL

A.Sheldon Kovach, Esquire, on behalf of the Commonwealth
Mitchell Howard, prose

                                        OPINION

Bradley, J.                                         FILED:    I   of1,;).{)   If


      On April 31, 2004 the Petitioner, Mitchell Howard, committed armed robbery at a

RadioShack store in Upper Darby, PA. He entered the store, robbed two employees at

gunpoint and fled with,   inter a/ia, the store manager's wallet, over $1,000.00       in cash, and a

Cannon Video Camcorder. A radio call went out and plain clothes police officers in the

immediate area approached the Petitioner, who matched the description of the robber.

Petitioner attempted to flee but he was apprehended. He had a fully loaded handgun, a large

sum of cash, the store manager's wallet, a bag containing controlled substances and his own

photo identification card and the stolen Cannon Camcorder in his possession.The gun he

possessedwas reported stolen in July of 2014. This incident gave rise to a plethora of

robbery and theft charges and alleged violations of The Controlled Substance, Drug, Device

and Cosmetic and Uniform Firearms Acts.



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       Petitioner pied guilty to armed robbery and related offenses and was sentenced as a

"third strike" offender on May 3, 2005. In 2006 pursuant to the Post Conviction Relief Act he

brought a successful claim challenging the legality of the mandatory minimum sentence

imposed. The PCRA court found that the sentence imposed was illegal and on February 22,

2007 he again pied guilty and was sentenced to an aggregate of fifteen to thirty years of

incarceration. This sentence included a mandatory minimum sentence as a second time

offender pursuant to 42 Pa.CS.A. § 9714, Sentencesfor second and subsequent offenses,

for one of the two robberies.

       On February 13, 2008 Petitioner filed a prose PCRA petition. Counsel was appointed.

Appointed counsel filed an application to withdraw accompanied by a "no merit" letter. The

PCRA Court gave Petitioner notice of its intent to dismiss the PCRA petition on November 6,

2008. On November 26, 2008 the PCRA petition was dismissed and counsel's application to

withdraw was granted. Petitioner filed a timely appeal and the order of the PCRA court was

affirmed by the Superior Court on November 16, 2009.

       On June 23, 2014 Petitioner filed the PCRA petition that is before the Court. The

petition alleges that the sentence imposed on February 22, 2007 is illegal in light of Alleyne

v. United States, 133 S.Ct. 2151 (2013). Alleyne was decided on June 17, 2013 and held

that, other than prior convictions, any fact that increases a mandatory minimum sentence

for a crime is not a sentencing factor but is an "element" of the crime that must be submitted

to the fact-finder and must be found based on proof beyond a reasonable doubt. This second

PCRA petition is untimely. The Court gave Petitioner notice of its intent to dismiss without a




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hearing and, after considering the Petitioner's response, the petition was dismissed.

Petitioner filed a timely Notice of Appeal on September 26, 2014, necessitating this Opinion.

      Section 9543 of the PCRA provides, inter elie, that to be eligible for relief a petitioner

must plead and prove by a preponderance of the evidence that his conviction resulted from

one or more of the enumerated errors or defects set forth in the Act. See shg.

Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999). The "imposition of a sentence greater

than the lawful maximum," is among the grounds that may provide a petitioner relief from

his conviction. See 42 Pa.CS.A. § 9543(a)(2)(vii). However, before a court may consider any

PCRA claim for relief the jurisdictional time requirements of the Act must be satisfied. Section

9545 of the PCRA "Jurisdiction and Proceedings," provides in pertinent part:

        (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.
     · (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.

      (3) For purposes of this subchapter, 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.

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       (4) For purposes of this subchapter, "government officials" shall not include
       defense counsel, whether appointed or retained.

42 Pa.CS.A. § 9543(b).

       Petitioner was sentenced on February 22, 2007. No post-sentence motions were

filed and no appeal was taken from judgment of sentence. Judgment of sentence

became final on March 24, 2007, giving Petitioner to March 24, 2008, or one year after

the date judgment of sentence became final to challenge the legality of sentence.

Although issues regarding the legality of sentence may not be waived, a claim that an

illegal sentence was imposed is not an exception to the PCRA's jurisdictional time

requirements. See Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007);

Commonwealth v. Vega, 754 A.2d 714 (Pa. Super. 2000). The petition sub Judice was

filed on June 23, 2014 and therefore, it is untimely on its face.

       In his "Concise Statement of Matters Complained of on Appeal," Petitioner claims

that the "facts upon which the claim is predicated were unknown [to him] and could not

have been ascertained by the exercise of due diligence" and his failure to raise this

claim earlier was the result of governmental interference. See 42 Pa.CS.A. §

9545(b)(l)(i) & (ii). Although it is unclear, he also appears to claim that the allegations

in the petition satisfy Section 4545(b )(iii) which provides an exception where "the right

asserted is a constitutional right that was recognized by the Supreme Court of the

United States or the Supreme Court of Pennsylvaniaafter the time period provided in

this section and has been held by that court to apply retroactively." Each of these

allegations fails.

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        A petitioner who files an out of time petition bears the burden to allege and

prove that one of the timeliness exceptions applies. See .§.,-9.. Commonwealth v. Jones,

54 A.3d 14 (Pa. 2012); Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010);

Commonwealth v. Garcia, 23 A.3d 1059 (Pa. Super. 2011). Petitioner alleges that the

basis for his challenge to the legality of the sentence imposed arose only after the

United States Supreme Court's June 17, 2013 Alleyne decision was "clarified" by our

Superior Court in Commonwealth v. Mundy, 78 A.3d 661 (Pa. Super. October 10, 2013)

and in an opinion filed by a Court of Common pleas in Blair County Pennsylvaniawhich

he obtained on May 14, 2014.

        Judicial decisions are not "newly-discovered facts" and they do not satisfy

Section 9543(b)(l)(ii). In Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super.

2013) the petitioners, brothers sentenced to life in prison after they pied guilty to

multiple felony offenses, filed untimely PCRA petitions. Each petitioner claimed that the

United States Supreme Court decision in Miller v. Alabama1,            -        U.S. --,     132 S.Ct.

2455, 183 L.Ed.2d 407 (2012), was a newly discovered "fact" that satisfied the

timeliness exception set forth in Section 9545(b)(l)(ii). In a brief discussion the court

explained: "Our 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)(l)(ii). See Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980, 986

(2011) (holding, a judicial opinion does not qualify as a previously unknown "fact"

capable of triggering the timeliness exception set forth in section 9545(b)(l)(ii) of the

1 In Miller, supra the United States Supreme Court held that mandatory sentences of life imprisonment without
parole for those under the age of eighteen at the time their crimes were committed violate the Eighth
Amendment's prohibition on cruel and unusual punishments.

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PCRA; "section 9545(b)(1)(ii) applies only if the petitioner has uncovered facts that

could not have been ascertained through due diligence, and judicial determinations are

not facts"); Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super.2012) (same)." 69

A.3d at 763. Additionally, the court explained that even if it was assumed that a judicial

decision could be considered a new "fact" the petitioners failed to satisfy the sixty day

requirement set forth in Section 9545(b)(2) which would require an otherwise untimely

to be filed within sixty days of the new court decision.

       Alleyne, a judicial decision is not a "fact" that satisfies Section 9543(b)(l)(ii).

Further, as in Cintora, the current PCRA petition was not filed within sixty days of either

Alleyne or Commonwealth v. Munday, supra.

       Petitioner's allegations also fail to satisfy the "recently recognized constitutional

right exception that is set forth in subsection (iii). In Commonwealth v. Miller,--- A.3d -

---, 2014 WL 4783558 (Pa. Super. 2014) the PCRA petitioner invoked subsection (iii)

and claimed that in Alleyne the United States Supreme Court recognized a new

constitutional right after judgment of sentence became final in his case and that the

newly recognized right applies retroactively. The Superior Court however, concluded

that Alleyne did not recognize a new constitutional right but was an extension of the

line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000) (recognizing that other than a prior conviction any fact that

increases penalty for crime beyond prescribed statutory maximum must be submitted to

jury and proved beyond reasonable doubt). Additionally, neither the United States

Supreme Court nor the PennsylvaniaSupreme Court have ruled that Alleyne applies


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retroactively and under these circumstances relief from the PCRA's one-year

jurisdictional time requirement is not available via subsection (iii). The Superior Court's

conclusions in Miller dictate our conclusion that subsection (b )(iii) has not been satisfied

in this case.

       Finally, the allegation that the failure to make these claims earlier was the result of

governmental interference may be summarily dismissed. "Neither the court system nor the

correctional system is obliged to educate or update prisoners concerning changes in case

law." Commonwealth v. Brandon 51 A.3d at 236 quoting Commonwealth v. Baldwin, 789

A.2d 728, 731 (Pa.Super.2001). Alleyne was available to all, including the Petitioner on the

day it was decided, June 17, 2013. The allegations that claim based on Alleyne could be

made only after a Blair County court ruled in an unrelated matter and that this PCRA court's

rulings regarding the timeliness of the petition constitute "governmental interference" are

patently frivolous.


                                                    BY THE COURT:




                                                                                                 J.




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