Com. v. Ostrowski, T.
Com. v. Ostrowski, T. No. 1283 WDA 2016
Pa. Super. Ct.Mar 20, 2017Background
- Thomas G. Ostrowski was convicted by a jury of two counts of first-degree murder on June 29, 2000, and sentenced to life imprisonment; his judgment of sentence became final January 8, 2003.
- He filed his first PCRA petition on March 16, 2016 — more than 13 years after his judgment became final.
- Ostrowski relied on the U.S. Supreme Court’s decision in Montgomery v. Louisiana to argue that Alleyne v. United States should be applied retroactively on collateral review, thereby creating a newly recognized constitutional right under 42 Pa.C.S. § 9545(b)(1)(iii).
- Appointed PCRA counsel filed a Turner/Finley no-merit letter and moved to withdraw; the court granted withdrawal and issued a Rule 907 notice proposing dismissal as untimely.
- The PCRA court dismissed the petition as patently untimely, holding Ostrowski failed to plead a timely statutory exception to the PCRA one-year time bar; Ostrowski appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ostrowski’s PCRA petition was timely under the § 9545(b)(1)(iii) "new constitutional right" exception | Montgomery made Alleyne retroactive on collateral review, so Alleyne supplies a newly recognized constitutional right and Ostrowski’s petition is timely | Alleyne was procedural, not substantive; Montgomery does not render Alleyne retroactive on collateral review in Pennsylvania | Court held petition untimely: Alleyne is not retroactive on collateral review in PA; no applicable § 9545(b)(1)(iii) exception |
| Whether Montgomery’s decision changes retroactivity of Alleyne for PCRA purposes | Montgomery’s retroactivity rule requires state collateral courts to apply new substantive rules retroactively, so Alleyne should apply | Pennsylvania precedent (Washington, Newman, Ruiz) treats Alleyne as procedural and non-retroactive on collateral review | Court relied on state precedent: Montgomery did not convert Alleyne into a retroactive rule for collateral review in PA |
| Whether, even if Alleyne were retroactive, Ostrowski’s sentence could be affected by Alleyne | Alleyne invalidates mandatory-sentence enhancements based on judge-found facts, so it could affect his life sentence | The statute for first-degree murder imposes life based on jury-found elements beyond a reasonable doubt, not judge-found facts, so Alleyne would not help | Court found Alleyne inapplicable to the statutory scheme here; sentence unaffected |
| Whether the PCRA court had jurisdiction to address the merits of the petition | Ostrowski argued timely exception applied, so court should reach merits | PCRA court argued it lacked jurisdiction because petition was untimely and no exception proven | Court affirmed lack of jurisdiction and dismissed petition as untimely |
Key Cases Cited
- Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013) (finality timing when Supreme Court denies allowance of appeal)
- Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (PCRA time limits implicate jurisdiction; courts may not reach merits of untimely petitions)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne is procedural and not retroactive on collateral review)
- Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (Alleyne applies only to cases pending on direct appeal at time of decision)
- Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015) (same: Alleyne not retroactive on collateral review)
- Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (new substantive rules must be given retroactive effect on collateral review)
- Alleyne v. United States, 133 S.Ct. 2151 (2013) (facts increasing mandatory minimums must be found by jury)
- Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) (foundational rule from which Alleyne derives)
- Commonwealth v. Fairiror, 809 A.2d 396 (Pa. Super. 2002) (PCRA court lacks jurisdiction to hear untimely petition)