Com. v. Jordan, K., 3460 EDA 2016

Background

Kevin Jordan was convicted by a jury on March 26, 2009, of multiple drug- and violent-crime offenses and sentenced June 16, 2009 to 12–24 years’ imprisonment.
Jordan’s direct appeals were exhausted; Pennsylvania Supreme Court denied allowance on June 1, 2011, and his judgment of sentence became final on August 30, 2011.
Jordan filed a timely first PCRA petition in October 2011; the petition was denied and that denial was affirmed on appeal.
Jordan filed a second PCRA petition on August 11, 2016, advancing six claims including alleged newly discovered facts, reliance on Ciccone/Wolfe/Alleyne developments, entitlement to an evidentiary hearing, and a challenge to mandatory recidivist sentencing under 42 Pa.C.S. § 9714(a)(1).
The PCRA court issued notice to dismiss as untimely, concluded Jordan failed to plead an exception to the one-year PCRA time bar, and dismissed the second petition on October 3, 2016.
On appeal, the Superior Court affirmed, holding it lacked jurisdiction because Jordan’s petition was untimely and he did not satisfactorily plead a 42 Pa.C.S. § 9545(b)(1) exception; additionally Alleyne-related arguments would not afford relief to Jordan in any event.

Issues

Issue	Jordan's Argument	Commonwealth's Argument	Held
Timeliness / jurisdiction of second PCRA petition	Second PCRA timely under §9545(b)(2) because filed within 60 days of Superior Court’s July 12, 2016 Ciccone decision	Petition was filed in 2016 well after one-year deadline; Jordan failed to prove any statutory exception	Petition untimely; court lacked jurisdiction to review merits
Burton claim / withheld records during first PCRA	Court concealed transcripts/sentencing order during first PCRA, so claim newly discoverable and should be remanded	No adequate pleading that exception applies; claim part of untimely petition	Not persuasive; untimely petition barred review
Entitlement to evidentiary hearing based on Ciccone/Wolfe developments	Ciccone (and Wolfe interpretation of 1 Pa.C.S. § 1925) created new claim outside Alleyne; hearing required	Subsequent appellate developments do not render petition timely; no jurisdiction to hold hearing	No jurisdiction; no hearing required because petition untimely
Retroactivity of Alleyne to collateral review	Alleyne (facts increasing mandatory minima must be found by jury) applies retroactively via Ciccone	Washington and subsequent authority foreclose retroactive application on collateral review	Alleyne does not apply retroactively to PCRA collateral attacks; Ciccone’s withdrawn/en banc posture does not help Jordan
Motion to vacate dismissal pending Ciccone en banc reconsideration	Ciccone en banc decision central; dismissal should be vacated pending reconsideration	Pending or withdrawn decisions do not toll PCRA deadlines; Jordan still failed to meet exceptions	Denial of the motion not an abuse; petition remains untimely
Challenge to mandatory minimum recidivist sentencing (§9714)	§9714 is facially unconstitutional / Jordan lacked opportunity to reform before second conviction	§9714 has not been invalidated by Alleyne or its progeny; sentence lawful	§9714 unaffected by Alleyne; even if Alleyne applied retroactively it would not afford Jordan relief

Key Cases Cited

Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (facts increasing mandatory minimums must be found by jury)
Commonwealth v. Ciccone, 152 A.3d 1004 (Pa. Super. 2016) (en banc) (initially held Alleyne retroactive on collateral review; later decision framework superseded)
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne does not apply retroactively to PCRA collateral attacks)
Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super. 2001) (petition invoking PCRA timing exception must plead and prove specific facts)
Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013) (PCRA timeliness is jurisdictional; de novo review)
Commonwealth v. Jordan, 75 A.3d 554 (Pa. Super. 2013) (affirming denial of Jordan’s first PCRA petition)