J-S08008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
THOMAS ANTHONY SCOTT                           :
                                               :
                Appellant                      :   No. 586 WDA 2017

                  Appeal from the PCRA Order March 17, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0003918-2011


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 27, 2018

        Thomas Scott appeals from the order, entered in the Court of Common

Pleas of Allegheny County, dismissing his second petition1 filed under the Post

Conviction Relief Act (“PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.

        Scott was tried before a jury and convicted of two counts each of assault

of a law enforcement officer, aggravated assault, and recklessly endangering

another person.2 On August 29, 2011, the court sentenced him to an



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1Scott’s petition was labeled a “Petition for Writ of Habeas Corpus or Coram
Nobis.” The PCRA court properly addressed it as a PCRA petition. See 42
Pa.C.S. § 9542 (PCRA is “sole means obtaining collateral relief and
encompasses all other common law and statutory remedies . . . including
habeas corpus and coram nobis.”).

2   18 Pa.C.S. §§ 2702.1, 2702, 2705, respectively.



____________________________________
* Former Justice specially assigned to the Superior Court.
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aggregate term of imprisonment of 20-40 years.3 On direct appeal, this Court

affirmed the judgment of sentence.             Commonwealth v. Scott, No. 1582

WDA 2011 (unpublished memorandum, filed June 18, 2013). On November

19, 2013, our Supreme Court denied Scott’s petition for allowance of appeal.

Commonwealth v. Scott, 80 A.3d 776 (Pa. 2013). See Pa.R.A.P. 1113(a),

42 Pa.C.S. § 5505.

        On April 30, 2014, Scott filed a timely petition under the PCRA, which

was denied. On appeal, this Court affirmed the PCRA court’s denial of relief.

Commonwealth v. Scott, No. 1354 WDA 2014 (unpublished memorandum,

filed December 14, 2015). Scott filed another petition on February 24, 2016,
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3   The Sentencing Code provides, in relevant part:

        (a) Mandatory sentence.—A person convicted of the following
        offense shall be sentenced to a mandatory term of imprisonment
        as follows:

           18 Pa.C.S. § 2702.1(a) (relating to assault          of law
           enforcement officer) -not less than 20 years.


42 Pa.C.S. § 9719.1.

Section 2702.1 defines the crime of assault of a law enforcement officer in
the first degree as follows:

           Assault of a law enforcement officer in the first degree.—A
           person commits a felony of the first degree who attempts to
           cause or intentionally or knowingly causes bodily injury to a
           law enforcement officer, while in the performance of duty
           and with knowledge that the victim is a law enforcement
           officer, by discharging a firearm.


18 Pa.C.S. § 2702.1(a).

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but sought to withdraw it on April 12, 2016; the court granted Scott’s petition

to withdraw on June 20, 2016. Seven months later, on January 17, 2017,

Scott filed the instant petition, and the PCRA court filed a Pa.R.Crim.P. 907

notice of intent to dismiss on February 21, 2017. Scott filed an answer on

March 13, 2017, and the PCRA court denied the petition on March 20, 2017.

This appeal followed.

      Scott raises the following issues for our review:

            1. Are habeas corpus and coram nobis relief still
               available for individuals whose PCRA counsel rendered
               ineffective assistance?

            2. Is applying the PCRA’s timeliness restriction to
               individuals raising claims of ineffective assistance
               when the challenged attorney’s act or omission took
               place after the initial filing period elapsed,
               unconstitutional?

            3. When a defendant has a claim that would otherwise
               entitle him to relief but has lost that claim due to
               counsel’s error, is it unconstitutional to deny relief by
               giving the interest of finality more weight than the
               interests of justice, fundamental fairness, and
               accurate results?

            4. Since Alleyne v. United States, 133 S. Ct. 2151
               (2013) was decided before the judgment of sentence
               became final, did PCRA counsel render ineffective
               assistance by failing to challenge [Scott’s] illegal
               sentence?

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

decision is free of legal error. The PCRA court's findings will not be disturbed

unless there is no support for the findings in the certified record.


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Commonwealth        v.   Lawson,     90   A.3d   1,   4   (Pa.   Super.   2014);

Commonwealth v. Brandon, 51 A.3d 231, 233 (Pa. Super. 2012).

      A PCRA petition, including a second or subsequent petition, must be filed

within one year of the date the underlying judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa. Super. 2003). 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 review.” 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).

      Here, Scott did not seek a writ of certiorari from the United States

Supreme Court.      Therefore, his judgment of sentence became final on

February 17, 2014, when the 90-day period for Scott to file a petition for a

writ of certiorari expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R.

13(1). Thus, he had one year from that date, or until February 17, 2015, to

file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b).

      Scott did not file the instant petition until January 17, 2017, almost three

years after his judgment of sentence became final. Accordingly, the PCRA

court had no jurisdiction to entertain the petition unless he pleaded and proved

one of the three statutory exceptions to the time bar:

      (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;


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      (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.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of the exceptions

to the time bar must be filed within 60 days of the date the claim could have

been presented. 42 Pa.C.S.A. § 9545(b)(2). The time limits set forth in the

PCRA are jurisdictional in nature, implicating a court’s very power to

adjudicate a controversy. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014). Accordingly, the period for filing a PCRA petition is not subject to the

doctrine of equitable tolling and can be extended only by operation of one of

the above-enumerated exceptions to the PCRA time-bar. Id.

      It is also settled that Alleyne does not invalidate a mandatory minimum

sentence when presented in an untimely PCRA petition. See Commonwealth

v. Miller, 102 A.3d 988 (Pa. Super. 2014). In concluding Alleyne does not

satisfy the new retroactive constitutional right exception to the PCRA’s one

year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Miller Court explained:

      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. This is fatal
      to Appellant’s argument regarding the PCRA time-bar. This Court
      has recognized that a new rule of constitutional law is applied
      retroactively to cases on collateral review only if the United States
      Supreme Court or our Supreme Court specifically holds it to be
      retroactively applicable to those cases.


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Id. at 995 (citations omitted) (emphasis supplied).4 Furthermore, this Court

also recently declined to give Alleyne retroactive effect to cases on timely

collateral review when the defendant’s judgment of sentence was finalized

before Alleyne was decided. See Commonwealth v. Riggle, 119 A.3d 1058

(Pa. Super. 2015).

       Alleyne was decided on June 17, 2013, before Scott’s judgment of

sentence became final. The Newman Court instructed that Alleyne applies

only to cases pending on direct appeal as of June 17, 2013, the date of the

Alleyne decision. See Newman, 99 A.3d at 90. Thus, although Scott’s case

was pending on direct appeal (Alleyne was decided one day before this Court

affirmed on direct appeal, and five months before the Pennsylvania Supreme

Court denied his petition for allowance of appeal), he did not pursue a claim

under Alleyne, and PCRA counsel did not pursue that claim in Scott’s first

timely PCRA petition, which was filed on April 30, 2014, over one year after

the Alleyne decision. However, and as Scott acknowledges, it is well settled

that ineffective assistance of counsel is not recognized as an exception to the

PCRA time requirement. See Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 786 (Pa. 2000) (“[t]he allegation of ineffective assistance of counsel for


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4Because the timeliness requirement of the PCRA is jurisdictional and was not
met, the merits of this claim cannot be addressed by this Court. See Miller,
102 A.3d at 995 (stating that although Alleyne claims implicate the legality
of the sentence, courts cannot review such a claim where the court does not
have jurisdiction).



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failure to put forward available claims does not excuse compliance with the

timeliness requirements of the PCRA.”).5         Scott claims, therefore, that he

should be entitled to extraordinary relief, in the form of habeas corpus or

coram nobis.      His attempt at circumventing the strictures of the statutory

framework of the PCRA, however, fails.

       In Commonwealth v. Descardes, 136 A.3d 493 (Pa. 2016), our

Supreme Court held that the trial court’s treatment of a petition for writ of

error coram nobis as a PCRA petition was proper, citing the plain language of

section 9542 of the PCRA:


          This subchapter provides for an action by which persons
          convicted of crimes they did not commit and persons serving
          illegal sentences may obtain collateral relief. The action
          established in this subchapter shall be the sole means
          of obtaining collateral relief and encompasses all
          other common law and statutory remedies for the
          same purpose that exist when this subchapter takes
          effect, including habeas corpus and coram nobis.

42 Pa.C.S. § 9542 (emphasis added). See Descardes, 136 A.3d at 497-98.

The Court emphasized that it has “consistently held that, pursuant to the plain

language of Section 9542, where a claim is cognizable under the PCRA, the

PCRA is the only method of obtaining collateral review.” Id. at 501. It is not
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5 The Supreme Court of Pennsylvania has recognized a distinction between
situations in which counsel “has narrowed the ambit of appellate review by
the claims he has raised or foregone versus those instances [] in which counsel
has failed to file an appeal at all.” Commonwealth v. Halley, 870 A.2d 795
(Pa. 2005); Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999).



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the case here that Scott’s rights could only be vindicated outside the

framework of the PCRA. The fact that Scott’s claim was not pursued does not

change the fact that it could have been raised under the PCRA.6 Descardes,

supra.

       We find no error. Lawson, supra; Brandon, supra. Scott’s petition

is untimely, without exception, and thus the PCRA had no jurisdiction to

entertain the petition. We, therefore, affirm the PCRA court’s order dismissing

Scott’s PCRA petition.

       Order affirm.


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6 We note that in Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015),
this Court determined that the mandatory sentence provision at issue here
does not implicate Alleyne. We stated:

        Section 9719.1 does not require proof of any additional elements
       beyond those already required to convict a defendant of assault
       of a law enforcement officer in the first degree under 18 Pa.C.S.
       § 2702.1(a). Nor does section 9719.1 follow the statutory scheme
       that allowed a trial court to apply a mandatory minimum sentence
       if the Commonwealth established the triggering fact for the
       mandatory minimum by a preponderance of the evidence, which
       this Court found unconstitutional under Alleyne. . . . Instead,
       section 9719.1 simply describes the legislatively-required
       sentence for an offender convicted of assaulting a law
       enforcement officer pursuant to section 2702.1(a). Because it
       does not require proof of facts that increase a mandatory
       minimum sentence, and does not follow the statutory construction
       that allowed trial courts to find such facts by a preponderance of
       the evidence at sentencing, section 9719.1 is not unconstitutional
       under Alleyne or its Pennsylvania progeny.

Id. at 785-86 (footnote omitted).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2018




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