Com. v. Ishmail, E.
339 EDA 2016
| Pa. Super. Ct. | Oct 18, 2016Background
- Elijah Ishmail pled guilty in January 2008 to PWID and resisting arrest and was sentenced per a plea agreement (18–36 months for PWID; 2 years probation for resisting). No post-sentence motions or direct appeal were filed, so that judgment became final February 24, 2008.
- Ishmail later was convicted on a firearms offense after parole authorities searched his home; he received a 5–10 year term plus 4 years probation.
- Following a probation revocation, the court imposed a consecutive 1–2 year term; Ishmail appealed and the Superior Court affirmed in December 2013 (no PA Supreme Court review), making his judgment of sentence final January 3, 2014.
- Ishmail filed a pro se PCRA petition on August 6, 2015 (outside the one-year PCRA filing window) and counsel filed a Turner/Finley no-merit letter; the PCRA court issued notice of intent to dismiss and dismissed the petition on January 6, 2016 as untimely.
- On appeal, Ishmail raised ineffective-assistance, voluntariness of plea, sentence legality, and search-issue claims but did not meaningfully invoke or prove any statutory timeliness exception under 42 Pa.C.S. § 9545(b).
- The Superior Court affirmed dismissal because the petition was untimely and Ishmail failed to plead or prove any applicable timeliness exception.
Issues
| Issue | Ishmail's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the PCRA petition was timely | Ishmail argued various substantive claims (IAC, illegal sentence, involuntary plea, illegal search) and attempted to invoke Alleyne/Hopkins to excuse timeliness | The Commonwealth maintained the petition was filed after the one-year filing period and no timeliness exception was established | Petition untimely; dismissal affirmed |
| Whether Alleyne/Hopkins create a retroactive right to excuse untimeliness | Ishmail invoked Alleyne and Hopkins to claim a new retroactive right | Commonwealth argued Alleyne not held retroactive and Hopkins merely applied Alleyne, so neither satisfies § 9545(b)(1)(iii) | Alleyne not retroactive on collateral review; Hopkins does not announce a new rule — cannot satisfy timeliness exception |
| Whether ineffective assistance of counsel establishes a timeliness exception | Ishmail raised IAC claims in his petition | Commonwealth argued IAC does not, on its face, satisfy PCRA timeliness exceptions | Court noted IAC claims alone do not meet timeliness exception requirements |
| Whether PCRA court erred in dismissing without a hearing after Turner/Finley letter and notice | Ishmail proceeded pro se on appeal challenging various denials | Commonwealth relied on procedural compliance with Turner/Finley process and statutory time bar | Dismissal without a hearing was proper because petition was facially untimely and no exception was pled/proved |
Key Cases Cited
- Bennett v. Commonwealth, 930 A.2d 1264 (Pa. 2007) (PCRA timeliness is jurisdictional and exceptions strictly applied)
- Wharton v. Commonwealth, 886 A.2d 1120 (Pa. 2005) (ineffective assistance claims do not automatically satisfy PCRA timeliness exceptions)
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (facts increasing mandatory minimums must be submitted to a jury)
- Hopkins v. Commonwealth, 117 A.3d 247 (Pa. 2015) (applied Alleyne to Pennsylvania mandatory minimum scheme)
- Washington v. Commonwealth, 142 A.3d 810 (Pa. 2016) (Alleyne not retroactive on collateral review in Pennsylvania)
- Commonwealth v. Ishmail, 93 A.3d 500 (Pa. Super. 2013) (Superior Court decision affirming Ishmail’s revocation-related sentence on direct appeal)
- Turner v. Commonwealth, 544 A.2d 927 (Pa. 1988) (procedures governing counsel’s no-merit letters in collateral appeals)
- Finley v. Commonwealth, 550 A.2d 213 (Pa. Super. 1988) (en banc) (procedural standards accompanying Turner no-merit practice)