Com. v. Brown, M.
Com. v. Brown, M. No. 604 MDA 2017
| Pa. Super. Ct. | Sep 6, 2017Background
- Appellant Mark David Brown pled nolo contendere to unlawful contact with a minor on March 31, 2011; court adjudicated him a sexually violent predator and sentenced him July 28, 2011 to 14–44 months’ imprisonment plus 12 months’ probation.
- Brown did not file a direct appeal; his judgment of sentence became final around August 27, 2011 (30 days after sentencing).
- Brown’s probation was revoked on February 19, 2015, and he was resentenced to 14–72 months’ imprisonment plus 24 months’ probation; this resentencing was affirmed on appeal on February 4, 2016.
- Brown filed his first PCRA petition pro se on September 22, 2016, asserting his 2011 sentence was illegal under Alleyne v. United States.
- The PCRA court appointed counsel, who filed a Turner/Finley no-merit letter and sought to withdraw; the court gave Rule 907 notice, permitted withdrawal, and dismissed the petition as untimely on March 2, 2017.
- Brown appealed pro se; the Superior Court affirmed, holding the PCRA petition was time-barred and Alleyne did not provide a retroactive basis for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown’s PCRA petition was timely | Brown argued Alleyne created a new constitutional rule that renders his sentence illegal and excuses the PCRA time-bar | Commonwealth argued petition was filed well after the one-year filing period and Alleyne does not apply retroactively to convictions final before Alleyne | Petition untimely; Alleyne does not create a retroactive basis to excuse the time-bar; dismissal affirmed |
| Whether Alleyne qualifies under PCRA’s new-right exception | Brown claimed Alleyne is a new constitutional right applicable to his case | Commonwealth relied on controlling precedent that Alleyne is not retroactive for collateral attacks on pre-Alleyne final sentences | Alleyne not a retroactively applicable new constitutional right for this purpose |
| Whether Brown complied with the 60-day filing requirement when invoking a timeliness exception | Brown did not show he filed within 60 days of when the claim could have been presented | Commonwealth noted Brown filed years after Alleyne and did not meet Section 9545(b)(2) timing | Brown failed the 60-day requirement; exception not satisfied |
| Whether Alleyne affects mandatory minimums in Brown’s case | Brown argued Alleyne invalidated his sentence as an Alleyne violation | Commonwealth pointed out the record does not show a mandatory minimum sentence was imposed | Alleyne inapplicable because no mandatory minimum was imposed; claim fails |
Key Cases Cited
- Alleyne v. United States, 133 S.Ct. 2151 (2013) (holding facts increasing mandatory minimum must be found by jury beyond a reasonable doubt)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (held Alleyne is not retroactive to convictions final before Alleyne for collateral relief)
- Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (concluding Alleyne and its progeny have not been held retroactive by higher courts)
- Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011) (explaining petitioner must show a newly created constitutional right and retroactive application to invoke PCRA exception)
- Commonwealth v. Zeigler, 148 A.3d 849 (Pa. Super. 2016) (noting timeliness is jurisdictional for PCRA petitions)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (addressing counsel’s motion to withdraw and procedures for court-appointed counsel)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (establishing procedures for no-merit letters by PCRA counsel)