J.S17035/16

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:
v. :
: RICHARD A. CANNON, :
: Appellant :

: No. 1316 WDA 2015

Appeal from the Ord er August 12, 2015 in the Court of Common Pleas of Mercer County Criminal Division

at No(s): CP

- 43

- CR

- 0001003

- 2004

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, * JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 1, 2016

Appellant, Richard A. Cannon, appeals from the order of the Mercer

County Court of Common Pleas dismissing his second Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541

- 9546, petition as meritless. Appellant

challenges his 2005 mandatory minimum sentences, imposed under 18

Pa.C.S. § 7508 (a) (“Drug trafficking sentencing and penalties”), and asserts

those sentences are now unconstitutional in light of Alleyne v. United

States , 133 S. Ct 2151 (2013), and subsequent decisions by this Court.

See, e.g. , Commonwealth v. Fennell , 105 A.3d 13, 1 8

- 20 (Pa. Super.

2014), appeal denied , 121 A.3d 494 (Pa. 2015). We affirm.

* Former Justice specially assigned to the Superior Court.J.S17035/16

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This Court previously summarized the relevant procedural history of

this appeal.

On August 18, 2005, Appellant was convicted by a jury of seven counts of possession with inten t to deliver controlled substances, 35 P.S. § 780

- 113(a)(30), seven counts of possession of controlled substances, 35 P.S. § 780

- 113(a)(16), and six counts of use of a communication facility, 18 Pa.C.S.[ ] § 7512(a). Appellant was subsequently sentenced t o an aggregate term of twelve years to twenty

- five years imprisonment[, which included several mandatory minimum sentences of five years’ imprisonment based on 18 Pa.C.S. § 7508(a)(3)]. Trial counsel, William G. McConnell, Jr., Esquire, filed post

sentenc e motions on Appellant’s behalf, which included a claim that Appellant’s sentence should be reduced because the Commonwealth engaged in unlawful sentence entrapment. Appellant’s post

- sentence motion was denied without hearing on October 26, 2005.

On Nove mber 7, 2005, Appellant attempted to file a timely appeal of his judgment of sentence. The appeal was never filed or processed. As a result, Appellant filed a PCRA petition, and his direct appeal rights were reinstated nunc pro tunc . Appointed counsel, Randall T. Hetrick, Esquire, filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.[A].P. 1925(b) for Appellant. On February 6, 2008, this Court denied the appeal, affirming Appellant’s judgment of sentence. [ C

ommonwealth v. Cannon , 1975 WDA 2006 (Pa. Super. Feb. 6, 2008)]. Appellant filed a petition for allowance of appeal with the Supreme Court, which was denied on October 14, 2008. [ Commonwealth v. Cannon , 145 WAL 2008 (Pa. Oct. 14, 2008)].

On December 30, 2009, PCRA counsel, Scott Coffey, Esquire, filed a PCRA petition on behalf of Appellant. Attorney Coffey then filed an amended PCRA petition on January 27, 2010, in which he raised a claim that “trial/sentencing/post sentencing counsel was [sic] ineffecti ve for failing to raise a claim that the Commonwealth manipulated [Appellant’s] sentence by waiting until he had committed 7 drug transactions over aJ.S17035/16

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- four month period, resulting in an increase of the mandatory minimum sentences requested from 5 years to 3 2 years (the actual mandatory minimum imposed was 12 years).”

Commonwealth v. Cannon , 713 WDA 2010 (Pa. Super. Jan. 25, 2011)

(unpublished memorandum at 1

- 3). On April 8, 2010, The PCRA Court

denied Appellant’s first PCRA petition following an evidentiar y hearing. Id.

at 3. This Court affirmed, and the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal. Id. at 8; see also

Commonwealth v. Cannon , 598 WAL 2011 (Pa. Mar. 7, 2012)

On July 27, 2015, Appellant filed the pro se “ petition/motion to vacate

judgment of sentence

— motion to set aside the mandatory minimum,” which

gives rise to this appeal. 1 On August 12, 2015, the PCRA court entered a

memorandum opinion and order denying relief. The court concluded it was

“bound by st

are decisis to follow” Commonwealth v. Riggle , 119 A.3d

1059 (Pa. Super. 2015), and find no relief was due because Alleyne and its

Pennsylvania progeny did not apply retroactively. See Order, 8/12/15;

PCRA Ct. Op., 8/12/15, at 4 (unpaginated). Appellant timely filed a notice of

appeal and a court

- ordered Pa.R.A.P. 1925(b) statement.

Appellant, in his pro se brief, presents the following question for

review: “Is Appellant’s mandatory minimum sentence illegal and

1 Although Appellant’s filing was received and docketed by the court on June 29, 2015, the record contains an envelope bearing a postmark dated Jun e 27th, which we adopt as the date of filing. See Commonwealth v. Chambers , 35 A.3d 34, 38 (Pa. Super. 2011).J.S17035/16

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unconstitutional since 18 Pa.C.S.[ ] § 75 08 has been declared

unconstitutional by recent Superior Court decisions?” Appellant’s Brief at 5.

Appellant cites to Alleyne , refers to this Court’s decisions invalidating

mandatory minimum sentences, and asserts his sentences are similarly

subject to c orrection. See id. at 10

- 11. We are constrained to disagree.

It is well settled that the PCRA

provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The acti on 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; see also 42 Pa.C.S. § 6503(b) (“Where a person is

restrained by virtue of sentence after conviction for a criminal offense, the

writ of habeas corpus shall not be available if a remedy may be had by post

conviction hearing proceedings authorized by law.”). Pennsylvania courts

must “evaluate any post

- conviction petition under the Post Conviction Relief

Act (PCRA), regardless of the title of the document filed.” Williams v. Erie

Cnty. Dist. Attorney’s Office , 848 A.2d 967, 969 (Pa. Su per. 2004)

(citation omitted); accord Commonwealth v. Rivera , 802 A.3d 629, 633

(Pa. Super. 2002).

Appellant’s present claim for relief from the application of a mandatory

minimum sentence is cognizable under the PCRA. Cf. Commonwealth v.

Ford , 947 A.2 d 1251, 1252

- 53 (Pa. Super. 2008); Commonwealth v.J.S17035/16

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Miller , 102 A.3d 988, 995 (Pa. Super. 2014). Therefore, his instant pro se
“petition/motion” must be regarded as a PCRA petition, his second. See

Williams , 848 A.2d at 969; Rivera , 802 A.3d at 633.

Cons equently, our standard of review is as follows. “[W]e examine

whether the PCRA court’s determination is supported by the record and free

of legal error.” Miller , 102 A.3d at 992 (citations and quotation marks

omitted). “[T]his Court may affirm the decisi on of the PCRA Court if it is

correct on any basis.” Commonwealth v. Hutchins , 760 A.2d 50, 55 (Pa.

Super. 2000); see also Commonwealth v. Callahan , 101 A.3d 118, 121

(Pa. Super. 2014) (noting this Court may raise question of timeliness under

PCRA sua spo nte ).

Pennsylvania law makes clear that when “a PCRA petition is untimely, neither this Court nor the trial court has jurisdiction over the petition.” . . . [“A]n untimely petition may be received when the petition alleges, and the petitioner proves, t hat 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.

* * *

(b) Time for filing petition.

—
(1) Any pet ition 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 t he result of interference byJ.S17035/16

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- 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 unk nown 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 th e 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.

Miller , 102 A.3 d at 993 (quoting 42 Pa.C.S. § 9545(b)(1)(i)

- (iii), (2)).

Section 9545(b)(1)(ii) codifies the “previously unknown facts”

exception. To invoke that provision,

the petitioner must establish that: 1) the facts upon which the claim was predicated were unk nown and 2) could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection.

Commonwealth v. Cintora , 69 A.3d 759, 763 (Pa. Super. 2013) (citation

omitted) (emphasis added). However, judicial decisions do not constitute

facts for the purposes of Section 9545(b)(1)(ii). See id. Thus, the mere

discovery of recent case law will not provide a basis for asserting a PCRA

time liness exception. See id.J.S17035/16

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Section 9545(b)(1)(iii) establishes a timeliness exception for newly

recognized constitutional rights. To assert the exception, “a petitioner must

prove that there is a ‘new’ constitutional right and that the right ‘has

been held’ by that court to apply retroactively .” Miller , 102 A.3d at

994 (citation omitted) (emphasis added).

In Miller , this Court concluded Alleyne does not establish a timeliness

exception under Section 9545(b)(1)(iii). Id. at 995. We reasoned,

“[N]eit her 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.” Id.

Instantly, Appellant’s judgment of sentence became final on January

12, 20 09, 2 and he had until January 12, 2010, to file a facially timely PCRA

petition. See 42 Pa.C.S. § 9545(b)(1), (3). Therefore, he was required to

plead and prove a timeliness exception under 42 Pa.C.S. § 9545(b) to

establish jurisdiction over his July 27, 2015 motion/petition. 3 This he did not

do. Accordingly, this Court must affirm the PCRA court’s dismissal of

2 As noted above, this Court affirmed the judgment of sentence on February 6, 2008, and the Pennsylvania Supreme Court denied allowance of appeal on October 14, 2008. Appellant did not petition the United States Supreme Court for writ of certiorari in his direct appeal. We emphasize Appellant’s conviction became final before the United States Supreme Court decided Alleyne on June 17, 2013. See C ommonwealth v. Ruiz , ___ A.3d ___, ___, 2015 WL 9632089 (Pa. Super. Dec. 30, 2015).

3 Moreover, Appellant’s petition was not filed by August 16, 2013, the sixtieth day after Alleyne was decided. See 42 Pa.C.S. § 9545(b)(2).J.S17035/16

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Appellant’s second PCRA petition. See Callahan , 101 A.3d at 121;

Hutchins , 760 A.2d at 55.

Order affirmed.

Judgment Entered.

Joseph D. Se letyn, Esq. Prothonotary

Date: March 1, 2016