Commonwealth v. Crockett

COMMONWEALTH OF PENNSYLVANIA, Appellee v. NICHOLAS CROCKETT, Appellant

J-S14044-15

No. 2854 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

March 30, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order entered on September 19, 2014 in the Court of Common Pleas of Montgomery County, Criminal Division, No. CP-46-CR-0002334-2007

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:

Nicholas Crockett ("Crockett") appeals the Order dismissing his second Petition filed pursuant to the Post Conviction Relief Act ("PCRA").¹ We affirm.

The PCRA court set forth the relevant factual and procedural history in its Opinion, which we incorporate herein by reference for purposes of this appeal. See PCRA Court Opinion, 10/30/14, 1-4.

On appeal, Crockett, pro se, raises the following issues for our review:

1. Did the trial court err in failing to find [Crockett's] second PCRA Petition timely under Commonwealth v. Lark, 746 A[.]2d 585, 588 (Pa.[]2000), requiring [Crockett] to wait for the out come [sic] of his first [] [PCRA] Petition?

2. Did the trial court err in failing to find [that Crockett's] sentence is illegal/unconstitutional based on already [sic] preserving this issue on direct appeal, and based on the holdings in Alleyne v. U.S., 133[] S.[]Ct. 2151 (2013) and Commonwealth v. Newman, ([Pa. Super.] 2014)?

Brief for Appellant at 3 (capitalization omitted).

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).

As Crockett's issues are related, we will address them together. Crockett contends that his first PCRA Petition was timely. Brief for Appellant at 8. Crockett asserts that, because Alleyne was decided while he was actively appealing the denial of his first PCRA Petition, he was permitted to file his second Petition, raising an Alleyne argument, within sixty days of the final Order on his first Petition. Id. at 8-9. Crockett claims that his second Petition was timely filed within the sixty-day period following the Pennsylvania Supreme Court's denial of his Petition for Allowance of Appeal of the Order dismissing his first Petition. Id. at 9.

Crockett also contends that the PCRA court erred by failing to find that his sentence is illegal based on a retroactive application of Alleyne. Id. at 9-11. Crockett asserts that Alleyne is to be applied retroactively, pursuant to this Court's decision in Newman. Id. at 11.

The PCRA court succinctly addressed Crockett's issues, set forth the relevant law, and concluded that they lack merit. See PCRA Court Opinion, 10/30/14, 4-10. We agree with the sound reasoning of the PCRA court and affirm on this basis as to Crockett's claims on appeal. See id.

Order affirmed.

Judgment Entered.

/s/_________

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2015

COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CRIMINAL DIVISION

NO. 2334-07

OPINION

FURBER, P.J.

October 30, 2014

Nicholas Crockett has appealed to the Superior Court of Pennsylvania from our final order, dated September 18, 2014, dismissing as time-barred his second petition pursuant to the Post Conviction Relief Act. We believe that defendant's appeal is without merit.

Background

On July 3, 2008, following trial before the undersigned and a jury, defendant - then represented by Francis M. Walsh, Esquire - was convicted of aggravated assault², burglary³, two counts of recklessly endangering another person⁴, and related offenses.

A detailed recitation of the facts of this case may be found in our opinion dated July 22, 2009, addressing defendant's direct appeal. Stated succinctly, defendant forced his way inside a residence in Pottstown, Montgomery County, Pennsylvania, in search of an individual named Julious Colzie. Rushing through the house and into the kitchen - where multiplepeople were present - defendant fired three shots from a handgun in the direction of Colzie as Colzie and another individual fled out the back door⁵.

On September 10, 2008, the Commonwealth filed notice of it's intention to seek five year mandatory minimum sentences on defendant's convictions for burglary and aggravated assault, pursuant to 42 Pa.C.S.A. §9712(a), on the basis that the offenses were committed while the defendant visibly possessed a firearm.

Defendant appeared before the undersigned for sentencing on December 12, 2008. Following hearing, the court imposed the mandatory minimum sentences on defendant's convictions for aggravated assault and burglary, directing that these sentences of not less than five (5) nor more than ten (10) years imprisonment be served consecutively. The undersigned also imposed a consecutive sentences of not less than three (3) nor more than six (6) years imprisonment on defendant's conviction for firearms not to be carried without a license, and consecutive sentences of not less than six (6) nor more than twelve (12) months imprisonment on each of defendant's two convictions for recklessly endangering another person. Defendant thus received an aggregate sentence of not less than fourteen (14) nor more than twenty-eight (28) years imprisonment.

Defendant filed a direct appeal to the Superior Court of Pennsylvania, which that court denied by memorandum opinion dated July 26, 2010 (1523 EDA 2009). Defendant's petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on November 30, 2010 (139 MAL 2010).

On December 5, 2011, defendant filed, pro se, a timely first petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541, et seq., raising numerous claims of ineffective assistance of counsel on the part of hispreliminary hearing counsel (John I. McMahon, Jr., Esquire) and his trial and appellate counsel (Mr. Walsh). The undersigned appointed Patrick J. McMenamin, Jr., Esquire, to represent defendant as PCRA counsel. On March 7, 2012, Mr. McMenamin forwarded to this court a detailed "no merit" letter, pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), stating Mr. McMenamin's opinion that defendant was not entitled to PCRA relief. Following an independent review of the record, the undersigned determined that Mr. McMenamin was correct, and that defendant was not entitled to PCRA relief. Accordingly, on May 23, 2012, the undersigned notified defendant, pursuant to Pa.R.Crim.P. 907(1), of this court's intention to dismiss his first PCRA petition without a hearing.

Rather than filing his optional response to this court's Rule 907(1) Notice - and despite having been explicitly advised that said Rule 907(1) Notice did not constitute a final, appealable order - defendant nonetheless filed an appeal from the Rule 907(1) Notice to the Superior Court of Pennsylvania. The Superior Court dismissed said appeal by order dated October 2, 2012 (1714 EDA 2012), and remanded the record to the Montgomery County Court of Common Pleas.

On December 13, 2012, the undersigned entered this court's final order dismissing defendant's first PCRA petition. Defendant appealed to the Superior Court, which affirmed our order of dismissal by memorandum opinion dated October 1, 2013 (101 EDA 2013). By order dated March 26, 2014, the Supreme Court of Pennsylvania denied defendant's petition for allowance of appeal (912 MAL 2013).

On May 30, 2014, defendant filed, pro se, the instant PCRA petition, his second. The petition on its face is dated May 23, 2014, and the envelope in which the petition was mailed is postmarked May 27, 2014.

Upon review, the undersigned determined that defendant's second PCRA petition was time-barred. Accordingly, on August 7, 2014, the undersigned entered this court's Notice Pursuant to Pa.R.Crim.P. 907(1), informing defendant of our intention to dismiss his second PCRA petition without a hearing. Defendant did not file a response to our Rule 907(1) Notice and, on September 18, 2014, the undersigned accordingly entered our final order dismissing defendant's second PCRA petition.

On October 6, 2014, defendant filed a timely appeal to the Superior Court of Pennsylvania. On October 28, 2014, the undersigned received a copy of defendant's statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). For the reasons that follow, we believe that defendant's second PCRA petition was properly dismissed and that defendant is not entitled to appellate relief.

Discussion

In his second PCRA petition, defendant contends that the mandatory minimum sentences imposed upon him for aggravated assault and burglary have been rendered unconstitutional by the decision of the Supreme Court of the United States in Alleyne v. United States, 570 U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In Alleyne, the Court held that any fact triggering the imposition of a mandatory minimum sentence is an element of the offense that must be submitted to a jury and found beyond a reasonable doubt.

The holding of Alleyne cast serious doubt on the constitutionality of a number of Pennsylvania's mandatory minimum sentencing statutes - including 42 Pa.C.S.A. §9712 - in that those statutes specify that the requisite triggering facts are not to be treated as elements of the offense, and in that the statutes direct that it is the sentencing judge who determines theexistence of the triggering facts under a preponderance of the evidence standard. Indeed, on March 21, 2014, the undersigned entered an order in the consolidated cases of Commonwealth v. Khalil Brockington (No. 9311-12), Commonwealth v. Khalil Blakeney (No. 2521-13), and Commonwealth v. William Bates (No. 139-13) which explicitly held that three of Pennsylvania's mandatory minimum sentencing statutes that are similar in construction to §9712...