Com. v. Ross, J.
Com. v. Ross, J. No. 1192 MDA 2016
| Pa. Super. Ct. | Apr 13, 2017Background
- In January 1998 James W. Ross was convicted of multiple sexual offenses against a child and sentenced to an aggregate term of 36 to 180 years; his judgment of sentence became final in 1999 after direct appeal.
- Ross filed a first PCRA petition in 2000; it was dismissed and that dismissal was affirmed on appeal.
- Ross filed a second pro se PCRA petition in February 2016 asserting illegality of sentence based on Alleyne-related authority and seeking relief under Ruiz.
- The PCRA court issued a Pa.R.Crim.P. 907 notice and dismissed the second petition as untimely; Ross appealed pro se.
- The Superior Court affirmed, holding the petition was untimely and Ross failed to plead or prove any statutory timeliness exception, so the court lacked jurisdiction to reach the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of second PCRA petition | Ross argued his claim (illegal mandatory minimum under Alleyne) was viable based on Ruiz and therefore should be considered despite lapse of time | Commonwealth argued the petition was facially untimely and no statutory exception was pleaded or proved | Petition untimely; Ross failed to invoke any §9545(b) exception; dismissal affirmed |
| Application of Alleyne/retroactivity | Ross contended Alleyne (and Ruiz) created a newly-recognized rule entitling him to relief and equal treatment | Commonwealth argued Alleyne (and Ruiz) do not apply retroactively to judgments final before Alleyne; subsequent decisions are not "new facts" | Alleyne (and Ruiz) do not apply retroactively to final judgments; judicial decisions are not "newly-discovered facts" under §9545(b)(1)(ii) |
| Entitlement to evidentiary hearing / due process | Ross claimed the court should hold a hearing because he alleged new facts that, if true, would entitle him to relief; raised equal protection / due process concerns | Commonwealth maintained court lacked jurisdiction to hold a merits hearing because the petition was untimely and no exception applied | Because petition was untimely and no exception pleaded/proven, dismissal without hearing was proper |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding any fact that increases mandatory minimum must be submitted to jury and found beyond reasonable doubt)
- Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015) (held Alleyne-based claim may be retroactive only when judgment not final before Alleyne and petition timely)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne does not apply retroactively to judgments final on collateral review)
- Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (Alleyne not held retroactive to final judgments)
- Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010) (timeliness requirement for PCRA petitions and jurisdictional bar)
- Commonwealth v. Perrin, 947 A.2d 1284 (Pa. Super. 2008) (untimely PCRA petition must be dismissed without a hearing)
- Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (standard of review for PCRA dismissal)
- Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011) (subsequent decisional law is not a "new fact" under §9545(b)(1)(ii))
- Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013) (judicial decisions cannot be treated as newly-discovered facts)
- Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007) (60-day filing requirement for newly-recognized constitutional rights begins on the date of the underlying judicial decision)