J-S17015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

BAKARI JVONNE THOMAS,

                        Appellant                 No. 3135 EDA 2016


              Appeal from the PCRA Order of August 31, 2016
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0003663-2009


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                           FILED APRIL 12, 2017

      Appellant, Bakari Jvonne Thomas, appeals from the order entered on

August 31, 2016, dismissing as untimely his second petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows.   On August 17, 2009, Appellant and his co-defendant robbed a

victim at gunpoint in the victim’s home.   Appellant’s co-defendant pistol-

whipped the victim, rendering him unconscious. When the victim awoke, he

required hospitalization for a concussion and stitches for a head wound. On

September 29, 2010, a jury convicted Appellant of conspiracy, aggravated
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assault, and two counts of robbery.1              Thereafter, the trial court also

convicted Appellant of persons not to possess a firearm.2

       At the sentencing hearing, the trial court determined that Appellant

had a prior assault conviction from Texas and that this adult conviction

constituted a predicate crime of violence under 42 Pa.C.S.A. § 9714.3           On

February 3, 2011, the trial court sentenced Appellant to an aggregate term

of 15 to 30 years of imprisonment.               More specifically, the trial court

sentenced Appellant to a mandatory term of 10 to 20 years of incarceration

for aggravated assault and a consecutive term of five to 10 years of

imprisonment for persons not to possess a firearm. The trial court imposed

terms of 10 to 20 years of imprisonment for conspiracy and one count of

robbery, each to be served concurrently to his aggravated assault

conviction.    The remaining robbery conviction merged with the other for

sentencing purposes.

       We affirmed Appellant’s judgment of sentence on January 3, 2012.

Commonwealth v. Thomas, 43 A.3d 511 (Pa. Super. 2012) (unpublished

____________________________________________


1
    18 Pa.C.S.A. §§ 903, 2702(a)(1), and 3701(a)(1), respectively.
2
    18 Pa.C.S.A. § 6105.
3
 “Any person who is convicted in any court of this Commonwealth of a crime
of violence shall, if at the time of the commission of the current offense the
person had previously been convicted of a crime of violence, be sentenced to
a minimum sentence of at least ten years of total confinement[.]” 42
Pa.C.S.A. § 9714 (a).



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memorandum).         On June 27, 2012, our Supreme Court denied further

review. Commonwealth v. Thomas, 47 A.3d 847 (Pa. 2012).

       On June 10, 2010, Appellant filed a pro se PCRA petition. Counsel was

appointed, but the trial court later granted counsel’s “no-merit” letter and

petition for leave to withdraw as counsel pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc).               On October 1, 2013, pursuant to

Pa.R.Crim.P. 907, the PCRA court gave Appellant notice of its intent to

dismiss the PCRA petition without an evidentiary hearing. Despite receiving

an extension of time to file a response, Appellant did not file one. On April

11, 2014, the PCRA court dismissed Appellant’s first PCRA petition.

Appellant did not appeal that determination.

       On March 28, 2016, Appellant filed a pro se motion to correct an illegal

sentence. The PCRA court treated this motion as a second PCRA petition.4

On April 19, 2016, the PCRA court ordered the Commonwealth to file an

answer.     The Commonwealth complied on May 25, 2016.            On August 9,

2016, the PCRA court gave Appellant notice of its intent to dismiss the PCRA

petition without an evidentiary hearing pursuant to Pa.R.Crim.P. 907.


____________________________________________


4
    Appellant does not challenge the PCRA court’s characterization of the
motion as a PCRA petition.       Regardless, this Court has held that “a
defendant's motion to correct his illegal sentence [is] properly addressed as
a PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
2013).



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Appellant did not respond. On August 31, 2016, the PCRA court entered an

order dismissing Appellant’s PCRA petition as untimely. This timely pro se

appeal resulted.5

       On appeal, Appellant presents the following issues for our review:

         1. Did the trial court err or abuse its discretion where it []
            improperly enhance[d] [Appellant’s] sentence pursuant
            to 42 Pa.C.S.[A.] § 9714, using a prior juvenile
            adjudication as a second strike[?]

         2. Did the trial [c]ourt lack the necessary subject matter
            jurisdiction to enhance [Appellant’s] sentence pursuant
            to an inapplicable statute[?]

Appellant’s Brief at 4.

       Our standard of review is clear:

         In reviewing the denial of PCRA relief, we examine whether
         the PCRA court's determination is supported by the record
         and free of legal error. The scope of review is limited to the
         findings of the PCRA court and the evidence of record,
         viewed in the light most favorable to the prevailing party at
____________________________________________


5
   The Clerk of Courts of the Court of Common Pleas of Chester County sent
the order dismissing Appellant’s PCRA petition by certified mail on
September 2, 2016. Thus, Appellant had until October 3, 2016 to file a
timely notice of appeal. See Pa.R.A.P. 108(a)(1) (day of entry of an order
shall be the day the clerk of courts mails or delivers copies of the order to
the parties; see also Pa.R.A.P. 903(a) (notice of appeal shall be filed within
30 days after the entry of the order from which the appeal is taken); see
also 1 Pa.C.S.A. § 1908 (whenever the last day of the appeal period falls on
a weekend, such day shall be omitted from the computation of time). Here,
Appellant dated his notice of appeal September 27, 2016 and it was
time-stamped on October 3, 2016. Hence, it was timely. On October 18,
2016, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a)
relying largely upon its rationale in its August 9, 2016 Rule 907 notice and
August 31, 2016 order dismissing the PCRA petition.



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       the trial level.   It is well-settled that a PCRA court's
       credibility determinations are binding upon an appellate
       court so long as they are supported by the record. However,
       this Court reviews the PCRA court's legal conclusions de
       novo.

       We also note that a PCRA petitioner is not automatically
       entitled to an evidentiary hearing. We review the PCRA
       court's decision dismissing a petition without a hearing for
       an abuse of discretion. The right to an evidentiary hearing
       on a post-conviction petition is not absolute. It is within the
       PCRA court's discretion to decline to hold a hearing if the
       petitioner's claim is patently frivolous and has no support
       either in the record or other evidence.

                         *              *         *

       Before we may address the merits of Appellant's arguments,
       we must first consider the timeliness of Appellant's PCRA
       petition because it implicates the jurisdiction of this Court
       and the PCRA court. Pennsylvania law makes clear that
       when a PCRA petition is untimely, neither this Court nor the
       trial court has jurisdiction over the petition. The period for
       filing a PCRA petition is not subject to the doctrine of
       equitable tolling; instead, the time for filing a PCRA petition
       can be extended only if the PCRA permits it to be extended.
       This is to accord finality to the collateral review process.
       However, an untimely petition may be received when the
       petition alleges, and the petitioner proves, that any of the
       three limited exceptions to the time for filing the petition,
       set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
       met.

       The PCRA provides, in relevant part, as follows.

       § 9545. Jurisdiction and proceedings

                           *            *       *

       (b) Time for filing petition.—

       (1)    Any petition under this subchapter, including a second
              or subsequent petition, shall be filed within one year


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              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.

        42 Pa.C.S.A. § 9545(b).

Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014)

(original quotations, brackets, and most citations omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).         “[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.” 42 Pa.C.S.A. § 9545(b)(3).

      Here, our Supreme Court denied further review of Appellant’s direct

appeal on June 27, 2012. Thus, Appellant's judgment of sentence became


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final 90 days later, or on September 25, 2012, when the time for seeking

discretionary review with the United States Supreme Court expired.           See

U.S. Supreme Court Rule 13. Hence, Appellant’s current PCRA petition, filed

on March 28, 2016, was patently untimely.

      On appeal to this Court, Appellant first claims that a trial court never

relinquishes its jurisdiction to correct an illegal sentence. Appellant’s Brief at

8, 12.   However, Pennsylvania courts have consistently concluded that,

“[a]lthough 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. Beck, 848 A.2d 987, 989 (Pa. Super. 2004)

(internal citation omitted).

      In his PCRA petition, Appellant relied upon two United States Supreme

Court decisions, Montgomery v. Louisiana, 136 S.Ct. 718 (2016) and

Alleyne v. United States, 133 S.Ct. 2151 (2013,) to support his claim that

new constitutional rights entitled him to relief on his illegal sentencing claim.

In Montgomery, the United States Supreme Court reexamined its decision

in Miller v. Alabama, 132 S.Ct. 2455 (2012), wherein “the [Miller] Court

held that a juvenile convicted of a homicide offense could not be sentenced

to life in prison without parole absent consideration of the juvenile's special

circumstances in light of the principles and purposes of juvenile sentencing.”




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Montgomery, 136 S.Ct. at 725.6                 In particular, Montgomery considered

“whether [the Miller] holding [wa]s retroactive to juvenile offenders whose

convictions and sentences were final when Miller was decided.”             Id.   The

Montgomery Court recognized that a “new constitutional rule of criminal

procedure does not apply, as a general matter, to convictions that were final

when the new rule was announced.”                  Montgomery, 136 S.Ct. at 728.

Whereas, “new substantive rules are [] retroactive.”              Id. at 730.    The

Montgomery Court noted,

         Substantive rules [] set forth categorical constitutional
         guarantees that place certain criminal laws and
         punishments altogether beyond the State's power to
         impose. It follows that when a State enforces a proscription
         or penalty barred by the Constitution, the resulting
         conviction or sentence is, by definition, unlawful. Procedural
         rules, in contrast, are designed to enhance the accuracy of
         a conviction or sentence by regulating the manner of
         determining the defendant's culpability. Those rules merely
         raise the possibility that someone convicted with use of the
         invalidated procedure might have been acquitted otherwise.
         Even where procedural error has infected a trial, the
         resulting conviction or sentence may still be accurate; and,
         by extension, the defendant's continued confinement may
         still be lawful. For this reason, a trial conducted under a
         procedure found to be unconstitutional in a later case does
         not, as a general matter, have the automatic consequence
         of invalidating a defendant's conviction or sentence.

Id. at 729–730 (internal citations and quotations omitted).

____________________________________________


6
  Because Appellant did not receive a life sentence and there is no dispute
that Appellant was an adult in 2009 when the crimes at issue were
committed, Montgomery and Miller are not directly applicable to Appellant.




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      Here, Appellant claimed in his PCRA petition that “Montgomery

explicitly makes Alleyne[] retroactive.” Pro Se PCRA Petition, 3/28/2016, at

4.   We disagree with Appellant’s declaration.       “Alleyne held that any fact

that, by law, increases the penalty for a crime must be treated as an

element of the offense, submitted to a jury, rather than a judge, and found

beyond a reasonable doubt.”      Commonwealth v. Washington, 142 A.3d

810, 812 (Pa. 2016), citing Alleyne, 133 S.Ct. at 2163. Our Pennsylvania

Supreme Court ultimately determined that the rule announced in Alleyne

was procedural and “does not apply retroactively to cases pending on

collateral review.”   Id. at 819-820.          Thus, Appellant cannot rely upon

Alleyne as a newly recognized constitutional right exception to timeliness

under the PCRA.

      Finally, this Court has recently

         considered the constitutionality of Section 9714 in
         Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015).
         In Reid, this Court acknowledged that the Alleyne decision
         retained [a narrow] exception for prior convictions. Reid,
         117 A.3d at 784. The Reid Court held that Section 9714 is
         not unconstitutional because it increases mandatory
         minimum sentences based on prior convictions. Reid, 117
         A.3d at 785.

Commonwealth v. Furness, 2016 WL 7406808, at *6 (Pa. Super. 2016).

We note, however, that the Pennsylvania Supreme Court recently granted an

allowance of appeal to consider the constitutionality of mandatory minimum

sentences imposed pursuant to Section 9714.            See Commonwealth v.

Bragg, 133 A.3d 328 (Pa. Super. 2016), appeal granted, 143 A.3d 890 (Pa.


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2016). Until our Supreme Court renders a decision in Bragg, we are bound

by the Reid Court’s finding that Section 9714 is constitutional.         See

Commonwealth v. Slocum, 86 A.3d 272, 278 n. 9 (Pa. Super. 2014)

(“This Court is bound by existing precedent under the doctrine of stare

decisis and continues to follow controlling precedent as long as the decision

has not been overturned by our Supreme Court.”).

     As Appellant’s current PCRA petition is patently untimely and not

subject to an exception, the PCRA court was without jurisdiction to entertain

the merits of Appellant’s claims.    Accordingly, the PCRA court properly

dismissed Appellant’s second PCRA petition.

     Order affirmed.

   Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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