J-S10044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GABRIEL ISHAM PITTMAN                      :
                                               :
                      Appellant                :   No. 1977 EDA 2017

                    Appeal from the PCRA Order June 6, 2017
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0000304-1998


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 20, 2018

        Appellant Gabriel Isham Pittman appeals pro se from the order

dismissing as untimely his seventh petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant claims that he properly

raised exceptions to the PCRA time bar by alleging the previously unknown

facts and newly-recognized constitutional rights under 42 Pa.C.S. §

9545(b)(1)(ii) and (iii).1        He also claims that the PCRA time bar is

unconstitutional. We affirm.

        On July 6, 1998, Appellant entered an open guilty plea to third-degree

murder, recklessly endangering another person, and firearms not to be carried

without a license, as well as a nolo contendere plea to aggravated assault.2
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1   We have reordered Appellant’s arguments for the purpose of this disposition.

2   18 Pa.C.S. §§ 2502(c), 2705, 6106(a), and 2702(a)(6) respectively.
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On July 24, 1998, the Commonwealth filed a notice of its intent to seek a

mandatory minimum sentence under 42 Pa.C.S. § 9172 (sentences for

offenses committed with firearms).             On August 19, 1998, the trial court

sentenced Appellant to an aggregate of twenty-six to fifty-nine years’

incarceration.3

       After this Court affirmed the judgment of sentence and the Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal in 1999,

Appellant filed numerous PCRA and habeas corpus petitions. Appellant’s sixth

PCRA petition was filed in September of 2015.              This Court affirmed the

dismissal of Appellant’s sixth PCRA petition on January 6, 2017.              See

Commonwealth v. Pittman, 3393 EDA 2015 (Pa. Super. filed Jan. 6, 2017)

(unpublished memorandum).

       Appellant filed the instant PCRA petition, his seventh, on February 14,

2017. In his petition, Appellant argued that several cases, including Johnson

v. United States, 135 S. Ct. 2551 (2015), Alleyne v. United States, 570

U.S. 99 (2013), and Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016),

recognized new constitutional rights held to apply retroactively on collateral

review.    Appellant also claimed that his trial counsel was ineffective for
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3 Of relevance to this appeal, the trial court sentenced Appellant to twenty to
forty years’ imprisonment for third-degree murder and five to ten years’
imprisonment for aggravated assault. Although the Commonwealth sought a
five-year mandatory minimum sentence for murder of the third-degree, the
trial court imposed a statutory maximum sentence on that count. See
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).



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permitting him to plead guilty.         According to Appellant, his conviction and

sentence violated the Tenth Amendment because Pennsylvania amended the

penalties for third-degree murder to obtain federal grants under the Violent

Offender Incarceration and Truth-in-Sentencing (VOI/TIS) program.4

       On April 5, 2017, the PCRA court filed a notice of its intent to dismiss,

pursuant to Pa.R.Crim.P. 907. In its notice of intent, the court concluded that

Appellant’s reliance on several cases was misplaced. The court explained that

Johnson “held that imposing an increased sentence under the residual clause

of the Armed Career Criminal Act (ACCA) violates the Constitution’s guarantee

of due process[;]” however, Appellant was not sentenced pursuant to the

ACCA. Order, 4/5/17, at n.1.           It further stated that Martinez was also

inapplicable to Appellant as it “dealt with certain registration requirements

under the Sex Offender Registration and Notification Act (SORNA).”              Id.

Finally, the PCRA court suggested that Alleyne did not apply because

Appellant was not sentenced to a mandatory minimum sentence. Id.

       On May 5, 2017, Appellant filed a nunc pro tunc response to the PCRA

court’s notice of intent to dismiss.           Appellant asserted that the intended

dismissal of his petition would violate his substantive and procedural due

process rights because the court did not require the Commonwealth to file an

answer.     Appellant further asserted that the PCRA time bar violated the

Supremacy Clause of the United States Constitution because it conflicted with

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4   34 U.S.C. §§ 12101-12124.

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the Antiterrorism and Effective Death Penalty Act (AEDPA) and United States

Supreme Court decisions construing the time limitations under the AEDPA.

      Appellant also averred that the Commonwealth invoked five-year

mandatory minimum sentences based on his use of a firearm. He claimed

that the United States Supreme Court decision in Hurst v. Florida, 136 S.

Ct. 616 (2016), recognized that Alleyne applied retroactively to his case. He

suggested that the Pennsylvania Supreme Court decision in Commonwealth

v. Washington, 142 A.3d 810 (Pa. 2016), which held that Alleyne does not

apply retroactively to cases pending on collateral review, was wrongly

decided.

      Alternatively, Appellant asserted that his petition should be converted

to a petition to enforce a plea agreement or a petition for a writ of habeas

corpus.    He concluded that he was entitled to discharge from his unlawful

confinement.

      On June 7, 2017, the PCRA court dismissed Appellant’s PCRA petition.

The PCRA court adopted the reasoning it set forth in the April 5, 2017 notice

of intent to dismiss.   The court opined that Appellant continued to cite

authority that was not relevant to this case, “including [AEDPA]—in an attempt

to argue that the PCRA’s time limitations are unconstitutional.” Order, 6/7/17,

at n.1. The court concluded that Appellant previously litigated a challenge to

the constitutionality of the PCRA time bar. Id.

      The PCRA court acknowledged that it incorrectly indicated in its notice

of intent to dismiss that Appellant was not sentenced to a mandatory

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minimum. Id. The court explained, however, that Hurst did not hold that

Alleyne applied retroactively to cases on collateral review and that Appellant

was not entitled to relief in light of Washington. Id.

      On June 20, 2017, Appellant timely filed a notice of appeal as well as a

concise statement of errors complained of on appeal. The trial court issued a

Pa.R.A.P. 1925(a) opinion.       The court relied on its reasons for dismissing

Appellant’s petition and added that Appellant’s claim that it erred by failing to

order the Commonwealth to file an answer was meritless because the issue of

timeliness was jurisdictional.

      Appellant raises the four questions on appeal, which we have reordered

as follows:

      1. Do the newly discovered facts of public records, and
         understanding of public records, regarding [VOI/TIS], a fatally
         defective bill of information, and plea colloquy and sentencing
         transcripts evincing that Appellant[’]s judgments of conviction
         and sentence are void ab initio, do not meet the terms of the
         agreement and violate the tenth and fourteenth amendments
         and the contracts clauses at article I, section 10, and article 1,
         section 17 of the federal and state constitutions satisfy the
         [Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017)]-newly
         discovered facts test, and did the PCRA court deprive Appellant
         of due process and equal protection of the law by not allowing
         amendment to the PCRA petition to assert these issues under
         subsection 9545(b)(1)(ii)?

      2. Where Appellant’s sentence is unconstitutional under Alleyne
         . . . which is retroactive under Tyler v. Cain, [533 U.S. 656
         (2001)] and/or has been held and/or made retroactive by
         Hurst . . . and where the essential element of malice, as
         defined by state law, has been retroactively been [sic] held to
         be unconstitutionally void for vagueness under Johnson . . .
         and Welch v. [United States, 136 S. Ct. 1257 (2016)], are
         Appellant’s conviction and mandatory minimum sentence for


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         third degree murder void, and aggravated mandatory
         statutory/guideline sentences for related offenses void, and did
         the PCRA court deprive Appellant of due process and equal
         protection of the law by finding that the timeliness exception
         at subsection 9545(b)(1)(iii) was not met?

      3. Did the PCRA court err in dismissing the PCRA petition as
         untimely where the Commonwealth did not file a motion to
         dismiss on timeliness grounds, has the Commonwealth
         forfeited and/or waived the affirmative defense of untimeliness
         on appeal by not raising the defense in the lower court?

      4. Do the 1995 procedural amendments to the PCRA render PCRA
         proceedings violative of the 10th amendment?

Appellant’s Brief at 2 (full capitalization omitted).

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (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).




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      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became 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
      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). To invoke one of these exceptions, however,

petitioner must also file his petition within sixty days of the date the claim

could have been presented.        See 42 Pa.C.S. § 9545(b)(2).          “Asserted

exceptions to the time restrictions for the PCRA must be included in the

petition, and may not be raised for the first time on appeal.” Commonwealth

v. Furgess, 149 A.3d 90, 93 (Pa. Super. 2016) (citation omitted).

      There is no dispute here that Appellant’s conviction became final in

2000, and that Appellant’s current PCRA petition, filed on February 14, 2017,

was facially untimely. Because Appellant failed to file the instant PCRA petition

within one year after his judgment of sentence became final, he must satisfy

one of the exceptions to the PCRA time bar.

      Appellant first claims that he recently discovered the VOI/TIS program

and alleges that Pennsylvania’s decision to obtain VOI/TIS grants by amending

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its laws violates the Tenth Amendment. He contends that the PCRA court

erred in failing to grant leave to amend his petition to assert a timeliness

exception under section 9545(b)(1)(ii).

       However, Appellant did not plead VOI/TIS as a “previously unknown

fact” in his PCRA petition or his response to the PCRA court’s notice of intent

to dismiss his petition. Moreover, Appellant did not seek leave to amend his

petition. Therefore, this claim is waived.5 See Furgess, 149 A.3d at 93; see

also Pa.R.A.P. 302(a).

       Appellant next contends that the United States Supreme Court in Hurst

recognized that Alleyne applies retroactively in a collateral proceeding. He

further claims that the Pennsylvania Supreme Court wrongly decided

Washington.

       The PCRA court concluded:

       First, the Pennsylvania Supreme Court has specifically held that
       Alleyne does not apply retroactively to cases pending on
       collateral review. Commonwealth v. Washington, 142 A.3d
       810 (Pa. 2016). Second, Hurst v. Florida, 136 S. Ct. 616
       (2016)—cited by [Appellant] to support his clam—did not hold that
       Alleyne applies retroactively to cases on collateral review.

Order, 6/7/17, at n.1. We agree.

       It is well settled that in order to establish an exception to the PCRA time

bar under section 9545(b)(1)(iii), the petitioner must establish: (1) “the right
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5Moreover, Appellant failed to establish that VOI/TIS constitutes a “fact,” see
Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011) (distinguishing
between “law” and “facts” under section 9545(b)(1)(ii)), or that he exercised
due diligence in discovering this alleged fact.


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

of the United States or [the Supreme Court of Pennsylvania;]” and (2) “the

right has been held by that court to apply retroactively.” Commonwealth v.

Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (quotation marks omitted). The

asserted right must be recognized at the time the petition was filed. Id.

       The Pennsylvania Supreme Court has held that Alleyne does not apply

retroactively on collateral review. Washington, 142 A.3d at 820. Appellant’s

contention that Washington was wrongly decided is unpersuasive, but also

asks this Court to disregard or overturn a controlling precedent issued by a

higher court, neither of which is within this Court’s province.                  See

Commonwealth v. Edwards, ___ A.3d ___, 2018 WL 487404 at *4 n.15

(Pa. Super. filed Jan. 19, 2018) (“We, of course, are duty-bound to effectuate

[our Supreme] Court’s decisional law” (citation omitted)).

       Moreover, Appellant’s reliance on Hurst is unavailing.6 In Hurst, the

petitioner challenged Florida’s “hybrid” procedures for the imposition of the

death penalty after he was resentenced to death. See Hurst, 136 S. Ct. at

620.    The United States Supreme Court held that Florida’s death penalty

procedures violated the Sixth Amendment. Id. at 624. The Court did not

expressly engage in a retroactivity analysis with respect to Alleyne and the

procedural history did not suggest that the Court intended Alleyne to apply

retroactively on collateral review.            Therefore, Appellant’s contention that
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6 Hurst was decided on January 12, 2016, while Appellant’s appeal from his
sixth PCRA petition was pending.

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Hurst held that Alleyne applies retroactively for the purposes of section

9545(b)(1)(iii), or should alter the holding in Washington, lacks any support.

Thus, the PCRA court properly rejected Appellant’s alleged discovery of a new

constitutional right.

       Appellant further contends that Johnson renders the third-degree

murder statute unconstitutionally vague. However, Johnson was decided on

June 15, 2015, approximately three months before Appellant filed his sixth

PCRA petition. Therefore, Appellant could have raised his claim in his prior

petition, and he cannot establish that the instant seventh petition was filed

within sixty days of the Johnson decision.7 See 42 Pa.C.S. § 9545(b)(2).

       Appellant next argues that the PCRA court erred in dismissing his

petition as untimely without requiring the Commonwealth to file an answer.

According to Appellant, the Commonwealth’s failure to object to the timeliness

of his petition constitutes waiver of an affirmative defense.      This claim is

frivolous as it is well settled that the timeliness requirements of PCRA are

jurisdictional and may be raised by a court sua sponte. See Commonwealth

v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

       Lastly, Appellant claims that the PCRA time bar violates the Tenth

Amendment. However, Appellant’s claim in this regard contravenes the claim

he raised in his response to the PCRA court’s notice of its intent to dismiss the

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7In any event, we agree with the PCRA court that Johnson did not announce
a new constitutional rule held to be retroactive, but merely applied due
process principles to invalidate the “residual clause” of the ACCA.

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petition. Therefore, we will not entertain a novel legal theory raised for the

first time on appeal.     See Furgess, 149 A.3d at 93; see also Pa.R.A.P.

302(a).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/18




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