Com. v. Smith, K.
2288 EDA 2016
| Pa. Super. Ct. | Dec 8, 2016Background
- Kevin Smith was convicted by jury in 2000 of multiple robberies and related offenses and sentenced to an aggregate 23–46 years imprisonment plus 7 years probation.
- Direct appeal was affirmed by the Superior Court in 2002; no further appeal to the Pennsylvania Supreme Court was taken, so the judgment became final in October 2002.
- Smith filed two prior untimely PCRA petitions (2004 and 2005); both were dismissed as untimely and he did not appeal those dismissals.
- On March 21, 2016, Smith filed a third PCRA petition asserting his sentence was unconstitutional under Alleyne v. United States and arguing Alleyne should apply retroactively.
- The PCRA court issued a Rule 907 notice, Smith responded, and the court dismissed the petition on May 27, 2016 as time-barred for lack of jurisdiction; Smith timely appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third PCRA petition is timely / whether court has jurisdiction | Smith contends his Alleyne-based sentencing challenge falls within the statutory exception for newly recognized constitutional rights, so the petition is timely under 42 Pa.C.S. § 9545(b)(1)(iii) | Commonwealth/PCRA court: judgment became final in 2002; petition filed in 2016 is untimely and jurisdictionally barred absent an exception, which Smith failed to plead/prove | Petition is untimely and PCRA court lacked jurisdiction; dismissal affirmed |
| Whether Alleyne is a retroactive rule that permits collateral relief | Smith argues Alleyne requires facts increasing penalty be jury-found and should apply retroactively to his sentence | Commonwealth: Alleyne has not been held retroactive by the U.S. or Pa. Supreme Court; therefore it cannot be used to overcome the PCRA time-bar | Alleyne does not apply retroactively on collateral review under Pennsylvania law; Smith cannot invoke the §9545(b)(1)(iii) exception |
Key Cases Cited
- Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013) (facts that increase penalty are elements that must be found by a jury)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne held not to apply retroactively on collateral review)
- Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super. 2010) (explaining when a judgment of sentence is final for PCRA timeliness)
- Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011) (courts have no authority to create equitable exceptions to the PCRA time bar)
- Commonwealth v. Burton, 936 A.2d 521 (Pa. Super. 2007) (statutory exceptions to PCRA timeliness must be pled in the petition)
- Commonwealth v. Williams, 35 A.3d 44 (Pa. Super. 2011) (timeliness of a PCRA petition implicates jurisdiction)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (requirements for counsel filing no-merit letter in collateral proceedings)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedural requirements for no-merit appellate counsel withdrawal)