Com. v. Bish, D.
379 WDA 2016
| Pa. Super. Ct. | Oct 31, 2016Background
- In 2011 David Ray Bish pled guilty to possession with intent to deliver 250 grams of methamphetamine and received the mandatory 5–10 year sentence; he did not file post-sentence motions or a direct appeal.
- In 2015 Bish pro se filed a motion to reconsider sentence invoking Alleyne v. United States, arguing the mandatory minimum triggered by facts must be found by a jury.
- The trial court treated the filing as an untimely post-sentence motion and denied it; this Court held it should have been treated as a first PCRA petition and remanded for appointment of counsel.
- Appointed counsel filed a Turner/Finley no-merit letter asserting the PCRA petition was untimely and no timeliness exception applied; the PCRA court issued notice and dismissed the petition on February 24, 2016.
- Bish appealed, arguing primarily that Alleyne applies retroactively and therefore satisfies the PCRA timeliness exception for newly recognized constitutional rights.
- The Superior Court concluded the petition was jurisdictionally untimely, Alleyne does not apply retroactively on collateral review under Pennsylvania law, and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument (Bish) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether the PCRA petition was timely | Bish contends his Alleyne-based challenge to an illegal mandatory minimum can be raised at any time | Commonwealth argues the petition is facially untimely (judgment final in 2011) and timeliness is jurisdictional | Petition untimely; PCRA court lacked jurisdiction, dismissal affirmed |
| Whether Alleyne creates a retroactive basis under PCRA exception §9545(b)(1)(iii) | Alleyne announces a new constitutional rule making his sentence illegal and thus fits the newly-recognized-right exception | Alleyne decision is not retroactive on collateral review and Bish filed more than 60 days after Alleyne | Alleyne does not satisfy the timeliness exception; Bish’s claim untimely |
| Whether legality-of-sentence claims are reviewable despite PCRA time bars | Bish asserts legality claims are non-waivable and can be raised anytime | Commonwealth and precedent note legality claims still must meet PCRA time limits or an exception | Legality-of-sentence review requires meeting PCRA timeliness or exception; Bish failed to do so |
| Whether counsel properly filed a Turner/Finley no-merit letter | Bish implies relief meritorious due to Alleyne | PCRA counsel maintained petition meritless due to untimeliness and lack of applicable exception | Court accepted counsel’s no-merit analysis and granted withdrawal; dismissal stands |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (holding any fact that increases mandatory minimum is an element subject to jury finding)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne does not apply retroactively on collateral review)
- Commonwealth v. Lewis, 63 A.3d 1274 (Pa. Super. 2013) (timeliness of PCRA petition is jurisdictional)
- Commonwealth v. Chester, 895 A.2d 520 (Pa. 2006) (untimely PCRA petitions deprive court of jurisdiction to address claims)
- Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999) (legality-of-sentence claims must still satisfy PCRA time limits or exception)
- Turner v. Commonwealth, 544 A.2d 927 (Pa. 1988) (standards for counsel seeking to withdraw in collateral proceedings)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (procedures for no-merit letter and counsel withdrawal in PCRA proceedings)