Opinion
J-S42037-16 No. 1727 WDA 2015
07-06-2016
COMMONWEALTH OF PENNSYLVANIA v. GREGORY S. KONTAXES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 20, 2015 in the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000197-2001 BEFORE: SHOGAN, OTT, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Gregory S. Kontaxes, appeals pro se from the order entered in the Fayette County Court of Common Pleas dismissing, as untimely, his fourth Post Conviction Relief Act ("PCRA") petition. Appellant claims the United States Supreme Court decision in Alleyne v. United States , 133 S. Ct. 2151 (2013), entitles him to relief. We affirm.
We summarize the relevant procedural history as follows. On August 4, 2006, Appellant pleaded guilty but mentally ill to charges of aggravated assault and related offenses arising from a violent attack on his parents and was sentenced to ten to twenty years' incarceration. Appellant appealed his sentence, nunc pro tunc, and this Court affirmed on August 27, 2008. Commonwealth v. Kontaxes , 1732 WDA 2007 (Pa. Super. Aug. 27, 2008), appeal denied, 426 WAL 2008 (Pa. July 9, 2009). On July 9, 2009, the Pennsylvania Supreme Court denied allowance of appeal. Appellant did not seek further review in the United States Supreme Court.
Initially, the trial court rejected Appellant's plea of guilty but mentally ill because Appellant was deemed incompetent to waive his insanity defense. See Commonwealth v. Kontaxes , 880 A.2d 591, 593 (Pa. 2005). The trial court never ruled on Appellant's motion to reinstate his plea of guilty but mentally ill, following a determination of competency, and he proceeded to a jury trial where he was convicted of the above crimes. Id. at 593-94. Ultimately, Appellant's jury convictions were vacated, and the trial court accepted his plea of guilty but mentally ill. See Commonwealth v. Kontaxes , 1732 WDA 2007 (unpublished memorandum at 1-2) (Pa. Super. Aug. 27, 2008).
On October 29, 2009, Appellant filed his first pro se PCRA petition, which the PCRA court dismissed on November 18, 2009. Appellant filed a second pro se petition on May 6, 2010, which the PCRA court dismissed on May 25, 2010. Appellant appealed, and this Court dismissed his appeal for failure to file a brief. Per Curiam Order, 11/22/10. On December 13, 2011, Appellant filed a third pro se PCRA petition, and the PCRA court dismissed the petition on April 25, 2012. Appellant appealed, and this Court again dismissed for failure of Appellant to file a brief. Per Curiam Order, 10/16/12.
Appellant filed a counseled PCRA petition resulting in the reinstatement of his direct appeal right nunc pro tunc. However, the 2009 pro se petition was his first petition following his judgment of sentence becoming final. See Commonwealth v. Karanicolas , 836 A.2d 940, 944 (Pa. Super. 2003) ("When a petitioner is granted a direct appeal nunc pro tunc in his first PCRA petition, a subsequent PCRA petition is considered a first PCRA petition for timeliness purposes." (citation omitted)).
Appellant sent a letter to the clerk of courts, filed November 4, 2009, asking the court to "stop" and "delay" his petition "until further notice." Pro Se Ltr., 11/4/09.
Appellant filed the instant petition on September 16, 2015. Therein, he argues he is entitled to relief because his sentence is unconstitutional pursuant to Alleyne. See PCRA Pet., 9/16/15, at 2-4 (unnumbered). The PCRA court issued a Pa.Crim.P. Rule 907 notice of intent to dismiss on September 25, 2015, Appellant filed a response, and on October 20, 2015, the court dismissed the petition as untimely. Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court authored a responsive opinion.
Appellant's petition appears on the docket on September 21, 2015. However, his petition indicates he mailed the petition on September 16; therefore, we consider the appeal filed on that date. See Commonwealth v. Chambers , 35 A.3d 34, 38 (Pa. Super. 2011).
Our review over dismissals of PCRA relief is limited to assessing whether the determination of the PCRA court is supported by the record and free of legal error. Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014). However, we must first consider the timeliness of Appellant's petition because it implicates the jurisdiction of this Court and the PCRA court. Id. at 992. A PCRA petition must be filed within one year of the date the judgment of sentence becomes final unless the petitioner pleads and proves one of three statutory exceptions. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii). This Court has held that a PCRA petitioner whose judgment of sentence was final prior to the Supreme Court's decision in Alleyne , i.e., June 17, 2013, cannot invoke Alleyne to satisfy the jurisdictional time-bar of the PCRA. See Miller , 102 A.3d at 995; Commonwealth v. Ruiz , 131 A.3d 54, 60-61 (concluding a PCRA petitioner is entitled to relief pursuant to Alleyne when presented in a timely PCRA petition and Appellant's judgment of sentence was not final at the time the Unites States Supreme Court decided Alleyne ).
Instantly, this Court affirmed Appellant's judgment of sentence on August 27, 2008, and the Pennsylvania Supreme Court denied his petition for allowance of appeal on July 9, 2009. Therefore, his judgment of sentence became final on October 7, 2009, at the expiration of time for seeking review in the United States Supreme Court. See Sup. Ct. R. 13; 42 Pa.C.S. § 9545(b)(3). Appellant filed the instant petition on September 15, 2015. Thus, it is facially untimely. Appellant has failed to plead in his petition an exception to the PCRA time-bar. See Miller , 102 A.3d at 995. Accordingly, we conclude the PCRA court properly dismissed Appellant's petition. See id. at 992.
We base our disposition on Appellant's failure to invoke an exception to the jurisdictional time-bar; however, we note the PCRA court observed Appellant was not sentenced pursuant to a mandatory minimum sentence. PCRA Court Op., 3/2/16, at 1-2. The record supports the PCRA court's determination for dismissal on this basis as well. See Miller , 102 A.3d at 992.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/6/2016