J-S06030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROBERT BAKER                               :
                                               :
                      Appellant                :   No. 1108 EDA 2017
                                               :

                  Appeal from the PCRA Order March 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0311241-2001


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 23, 2018

       Appellant Robert Baker appeals pro se from the order of the PCRA court

dismissing his second petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm on the basis of the PCRA

court’s opinion.

       In 2001, following a jury trial, Baker was found guilty of the third-degree

murder of Tyrone Leanier, violating the uniform firearms act, and possessing

an instrument of crime.1 Baker was sentenced to serve an aggregate of 18½

to 37 years’ imprisonment. We affirmed Baker’s judgment of sentence on

January 31, 2008, and the Pennsylvania Supreme Court denied review. See
____________________________________________


1 Baker was convicted of violating 18 Pa.C.S.A. §§ 2502(c), 6106, and 907,
respectively.
J-S06030-18



Commonwealth           v.   Baker,    947      A.2d   821   (Pa.Super.)   (unpublished

memorandum), appeal denied, 958 A.2d 1046 (Pa. 2008).2

       Baker filed a first PCRA petition in 2011, which was dismissed by the

PCRA court. We affirmed the dismissal and the Pennsylvania Supreme Court

denied review in 2013. See Commonwealth v. Baker, 64 A.3d 274 (Pa.

Super.) (unpublished memorandum), appeal denied, 72 A.3d 599 (Pa. 2013).

Baker filed a second PCRA petition in 2014, and several amended petitions

thereafter; these were dismissed by the PCRA court on October 5, 2016. See

PCRA Court Opinion, filed May 30, 2017, at 2.

       Baker filed the instant PCRA petition on October 27, 2016.3 The PCRA

court issued a Rule 907 notice of its intention to dismiss the petition as

untimely, and Baker responded on February 7, 2017. See Pa.R.Crim.P. 907.

The PCRA court dismissed the petition on March 13, 2017.

       Baker raises the following issues, which we have rephrased for brevity

and clarity:


____________________________________________


2Baker first appealed his judgment of sentence in 2002; however, we affirmed
based on Baker’s failure to file a Pa.R.A.P. 1925(b) statement. See
Commonwealth v. Baker, 872 A.2d 1267 (Pa.Super. 2005) (unpublished
memorandum). Baker thereafter filed a PCRA petition and the PCRA court
reinstated Baker’s direct appeal rights nunc pro tunc.

3 We note that although Baker filed the instant petition during the period in
which he could have appealed the dismissal of his second and amended
petitions, Baker did not appeal those petitions, the PCRA court therefore had
jurisdiction to consider Baker’s third petition. See Commonwealth v.
Zeigler, 148 A.3d 849, 852-53 (Pa.Super. 2016).


                                            -2-
J-S06030-18


       A. Does Commonwealth v. Vasquez, 744 A.2d 1280 (Pa.
          2000), establish an exception to the time constraints under the
          PCRA, and allow a PCRA court to review an illegal sentencing
          claim in an otherwise untimely PCRA petition?

       B. Are sentences that fail to comply with Alleyne v. United
          States, 570 U.S. 99 (2013), and its progeny, illegal from their
          inception, despite pre-dating Alleyne?

       C. Did the PCRA court fail to respond to Baker’s argument that the
          PCRA is the sole means of obtaining collateral relief on an illegal
          sentencing claim before denying Baker’s petition as untimely?

See Baker’s Brief at 1-3.

       In his brief, Baker complains that he was sentenced under 42 Pa.C.S.A.

§ 9712,4 a statute which is unconstitutional pursuant to Alleyne,5 and that

his illegal sentence is subject to correction under the PCRA. Most of Baker’s

brief is taken word-for-word from President Judge Emeritus Bender’s

dissenting opinion in Commonwealth v. Ciccone, 152 A.3d 1004, 1010

(Pa.Super. 2016) (P.J.E. Bender, dissenting), appeal denied, 169 A.3d 564

(Pa. 2017). See Baker’s Br. at 8-14.

       The trial court explained in its Rule 1925(a) opinion that it found Baker’s

petition to be untimely because a PCRA petition must be filed within one year


____________________________________________


4 Section 9712 of the Sentencing Code provided that any person convicted of
a crime of violence who committed the crime while in visible possession of a
firearm and who placed the victim in reasonable fear of death or seriously
bodily injury during the commission of the crime be sentenced to a mandatory
minimum of five years’ incarceration. See 42 Pa.C.S.A. § 9712(a).

5“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) (citation omitted).

                                           -3-
J-S06030-18



of the date on which the judgment of sentence becomes final, or plead and

prove that at least one of three exceptions to the one-year time limit applies.

See PCRA Ct. Op. at 2 (citing 42 Pa.C.S.A. § 9545(b)(1)). Baker filed his

petition more than one year after his judgment of sentence became final, and

he pleaded the timeliness exception that allows for the filing of a petition

within 60 days of the recognition, by a United States or Pennsylvania Supreme

Court decision, of a constitutional right that applies retroactively. Id. at 3

(citing 42 Pa.C.S.A. § 9545(b)(1)(iii)). Specifically, Baker claimed his petition

was timely based on Alleyne’s recognition of a constitutional right that,

according to Baker, was held to be retroactive in Commonwealth v.

Ciccone, 2016 Pa.Super. 149, No. 3114 EDA 2014 (Pa.Super. July 12, 2016)

(en banc) (withdrawn). PCRA Ct. Op. at 3.

      The PCRA court noted that although an earlier version of Ciccone held

that Alleyne applied retroactively, that version of Ciccone was withdrawn

following the Pennsylvania Supreme Court’s decision in Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016) (“We hold that Alleyne does not

apply retroactively to cases pending on collateral review . . .”). The PCRA court

observed that we then issued a superseding decision in Ciccone holding,

consistently with Washington, that Alleyne does not apply retroactively to

cases pending on PCRA review. PCRA Ct. Op. at 3 (citing Commonwealth v.

Ciccone, 152 A.3d 1004 (Pa.Super. 2016) (en banc), appeal denied, 169 A.3d

564 (Pa. 2017)).




                                      -4-
J-S06030-18



      The PCRA court also rejected Baker’s argument that Commonwealth

v. Vasquez, 744 A.2d 1280 (Pa. 2000), created an additional exception to

the PCRA’s time limits. The court explained that unlike Baker’s petition for

collateral review, Vasquez was a direct appeal of a sentence that was illegal

at its inception, and does not except Baker’s petition from the PCRA’s

timeliness requirements. PCRA Ct. Op. at 4 (citing Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“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”)).

      “[I]n reviewing the propriety of an order granting or denying PCRA relief,

this Court is limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal error.”

Commonwealth v. Grove, 170 A.3d 1127, 1136 (Pa.Super. 2017).

      After a review of the record, the briefs of the parties, the applicable law,

and the well-reasoned opinion of the Honorable Tracy Brandeis-Roman, we

conclude that Baker is due no relief as his petition is untimely under the PCRA.

Thus, we affirm on the basis of the PCRA court’s opinion, which we adopt and

incorporate herein. See PCRA Ct. Op. at 1-4.

      Order affirmed.




                                       -5-
J-S06030-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/18




                          -6-
0038_Opinion
                                                                                                         Circulated 03/05/2018 12:01 PM




                        COURT OF COMMON PLEAS OF PHILADLEPHIA COUNTY
                            FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                    CRIMINAL TRIAL DIVISION
               COMMONWEALTH OF
                                      . CP-51-CR-0311241-2001 Comm v Baker, Robert
               PENNSYLVANIA                               Opinion


               v.
                                                               11111111 1111 1111 I 11111111         CP-51-CR-0311241-2001
               ROBERT BAKER
                                                        ,.._ ------- - -
                                                                           7952951241
                                                                                        -      --�         1108 EDA 2017

                                                                      OPINION
               TRACY BRANDEIS-ROMAN, J.                                                              Date: May 30, 2017

                      This appeal comes before the Superior Court following the dismissal of a Post-Conviction Relief

               Act ("PCRA")1 petition filed on October 27, 2016. On March 13, 2017, the lower court dismissed the

               PCRA petition and supplemental filings for the reasons set forth below.

               I.     PROCEDURAL HISTORY

                      On November 1, 2001, following a jury trial before the Honorable Willis W. Berry, Jr., Petitioner

               was found guilty of third degree murder, Violation of the Uniform Firearms Act ("VUF A"), and

               possession of an instrument of crime. Petitioner was sentenced on March 26, 2002, to an aggregate

               sentence of 18 Yz to 37 years. The Pennsylvania Superior Court affirmed Petitioner's judgment of

               sentence on January 18, 2005. Petitioner filed a timely PCRA petition and nunc pro tune relief was

               granted on November 16, 2005. After appealing to the Pennsylvania Superior Court, Petitioner's

               judgment of sentence was affirmed on January 31, 2008.2 The Pennsylvania Supreme Court denied

               allocatur on September 30, 2008.3

                      On March 27, 2009, Petitioner filed his first pro se PCRA petition. On August 1, 2011, the

               petition was formally dismissed. The Pennsylvania Superior Court affirmed the PCRA court's

               dismissal on September 12, 2013, followed by the Pennsylvania Supreme Court's denial of allocatur



               1
                   42 Pa. Cons. Stat. §§ 9541-9546.
               2
                   Commonwealth v, Baker, 947 A.2d 821 (Pa. Super. 2008) (unpublished memorandum).
               3
                   Commonwealth v. Baker, 958 A.2d I 046 (Pa. 2008) (table).
                                                                              1
on July 31, 2013.4 Petitioner filed a second petition on November 13, 2014, followed by several

amended petitions. All were subsequently dismissed on October 5, 2016.

     Thereafter, the instant petition was filed on October 27, 2016. Pursuant to Pa.R.Crim.P. 907, this

court sent a notice of intent to dismiss the petition as untimely without exception on January 19, 2017.

In response to this court's 907 notice, Petitioner filed another petition on February 7, 2017. This court

formally dismissed the petition on March 13, 2017. 5 Petitioner timely filed a notice of appeal to the

Pennsylvania Superior Court on March 23, 2017.

II. DISCUSSION

     As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Robinson, 12 A.3d 477 (Pa. Super. 2011). A PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying judgment becomes final.

42 Pa. Cons. Stat. §9545(b)(l). A judgment is deemed 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." Id § 9545(b)(3).

     Petitioner's judgment of sentence became final for PCRA purposes on or about November 30,

2008, ninety (90) days after the Pennsylvania Supreme Court denied allocatur and the time period

for filing a petition for writ of certiorari in the United States Supreme Court expired. See id; U.S.

Sup. Ct. R. 13, (allowing 90 days to file petition for writ of certiorari (effective June 30, 1980).

Petitioner's prose petition, filed on October 27, 2016 was therefore untimely by approximately seven

(7) years. See 42 Pa. Cons. Stat. § 9545(b)(l).




4
 Commonwealth v. Baker, 64 A.3d 274 (Pa. Super. 2013) (table), appeal denied, 72 A.3d 599 (Pa. 2013) (table).
5
 The order was issued more than twenty (20) days after Petitioner was served with notice of the forthcoming dismissal
of his Post-Conviction Relief Act petition. Pa.R.Crim.P. 907.
                                                         2
     The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited

circumstances under which the late filing of a petition will be excused. Id. § 9545(b)(l). To invoke

an exception, a petition must allege and Petitioner must prove:

         (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.

Id. § 9545(b)(I )(i)-(iii).

     Petitioner attempted to satisfy the newly recognized constitutional rights exception by citing the

United States Supreme Court decision in Alleyne v. United States, 133 S. Ct. 2151 (2013) and the

Pennsylvania Superior Court decision in Commonwealth v. Ciccone, 152 A.3d 1004 (Pa. Super.

2016).

     Petitioner argued that pursuant to the decision in Ciccone, his sentence was illegal and must be

vacated. The court in Ciccone held that the Alleyne decision may not be applied retroactively to

collateral relief.6 In Alleyne, the United State Supreme Court determined that "[f]acts that increase

the mandatory minimum sentence are therefore elements and must be submitted to the jury and found

beyond a reasonable doubt."? While the United States Supreme Court was silent as to the retroactivity

of Alleyne, the Pennsylvania Supreme Court consistently held that the Alleyne decision did not apply

retroactively to collateral attacks. More recently, the Pennsylvania Supreme Court stated




6 At the time of Petitioner's filing, Ciccone held that Alleyne was retroactive in timely PCRA petitions, however that
decision was withdrawn in light of the court's decision in Washington. Even if Ciccone had not been overruled,
Petitioner is still not eligible for relief as his petition was untimely.
7
  Alleyne, 133 S. Ct. at 2158.
                                                            3
unequivocally "we hold that Alleyne does not apply retroactively to cases pending on collateral

review." Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Thus, Petitioner failed to

successfully invoke the newly recognized rights exception to timeliness.

    In his February 2017 response to the 907 notice, Petitioner asserted that this court had jurisdiction

because illegal sentences were non-waivable, as per the decision in the Pennsylvania Supreme Court

case Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000). Vasquez was a direct appeal of a sentence

that was illegal at its inception. Our Supreme Court held that illegal sentences were never waivable

and trial courts never relinquish their jurisdiction where the initial sentence was illegal. Id at 24. It is

settled law that while illegal sentence are non-waivable, they are still subject to and must satisfy the

PCRA timeliness provision. Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999). Petitioner's petition

was neither timely nor did it successfully invoke an exception to the timeliness bar. Furthermore, the

holding in Vasquez was distinguished from the case at hand. While the Appellant's sentence in

Vasquez was illegal at the time of his sentencing, Petitioner's sentence relied on the United States

Supreme Court precedent that the statute was constitutional at the time of its inception. Ciccone, 152

A.3d at 1010. Therefore, Petitioner was not eligible for relief.

III. CONCLUSION

    This court has evaluated Petitioner's untimely filings and determined them to be without

exception. Petitioner failed to satisfy his burden of establishing an exception to the PCRA' s statutory

time bar. Accordingly, for the reasons stated herein, the decision of the court dismissing the PCRA

petition should be affirmed.

                                                    BY THE COURT:




                                                    TRACY BRANDEIS-ROMAN, J.

                                                    4
