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HomeMy WebLinkAboutCP-21-CR-0001595-2002COMMONWEALTH V. LANE C. HURLEY OTN: H460149-4 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (1) (2) (3) (4) AGGRAVATED INDECENT ASSAULT INDECENT ASSAULT CORRUPTION OF MINORS INVOLUNTARY DEVIATE SEXUAL INTERCOURSE : CP -21 -CR -1595-2002 IN RE: DEFENDANT'S SECOND PCRA PETITION BEFORE OLER, S.J. ORDER OF COURT AND NOW, this 13th day of February, 2017, upon consideration of Defendant's second petition under the Post Conviction Relief Act, following a hearing held on February 2, 2017, and for the reasons stated in the accompanying opinion, the petition is dismissed. NOTICE is hereby given to Defendant of his right to file an appeal from this order to the Pennsylvania Superior Court within 30 days of its entry. BY THE COURT, J. esley Oler, ., S.J. Charles J. Volkert, Esq. Chief Deputy District Attorney Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Attorney for the Commonwealth Stephanie L. Cesare, Esq. Abom & Kutulakis 2 West High Street Carlisle, PA 17013 Court-appointed Attorney for Petitioner Lane C. Hurley JC9260 SCI Laurel Highlands 5706 Glades Pike P.O. Box 631 Somerset, PA 15501-0631 Defendant/Petitioner Regular and Certified Mail COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CHARGES: (1) AGGRAVATED INDECENT IN RE: DEFENDANT'S SECOND PCRA PETITION BEFORE OLER, S.J. OPINION and ORDER OF COURT OLER, S.J., February 13, 2017. For disposition in this criminal case is Defendant's second petition for collateral relief under the Post Conviction Relief Act.' He was found guilty following a jury trial in 2006 of corruption of minors,2 indecent assault,3 aggravated indecent assault,4 and involuntary deviate sexual intercourse.s The charges arose from alleged .incidents in 1997 involving Defendant's 10 -year-old niece.6 ' Defendant's Motion for Post Conviction Collateral Relief, .filed November 7, 2016. 2 Act of July 1, 1978, P.L. 573, §1, as amended, 18 Pa. C.S. §6301(a)(1). This offense was a misdemeanor of the first degree. Id. 3 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3126(a)(7). This offense was a misdemeanor of the first degree. Id. 4 Act of February 2, 1990, P.L. 6, §5, as amended, 18 Pa_ C.S. §3125(a)(7). This offense was a felony of the second degree. Id. 5 Act of December 6, 1972, P.L. 573, § 1, as amended, 18 Pa. C.S. §3123(a)(6). This offense was a felony of the first degree. Id. Section 3123 of the Crimes Code was amended in certain respects subsequent to the events that formed the basis for the charge herein. See Act of December 16, 2002 (P.L. 1953, No. 226). See Order of Court, November 2, 2006. 6 Criminal Complaint, filed April 9, 2002. ASSAULT V. (2) INDECENT ASSAULT (3) CORRUPTION OF MINORS (4) INVOLUNTARY DEVIATE SEXUAL INTERCOURSE LANE C. HURLEY OTN: H460149-4 : CP -2I -CR -1595-2002 IN RE: DEFENDANT'S SECOND PCRA PETITION BEFORE OLER, S.J. OPINION and ORDER OF COURT OLER, S.J., February 13, 2017. For disposition in this criminal case is Defendant's second petition for collateral relief under the Post Conviction Relief Act.' He was found guilty following a jury trial in 2006 of corruption of minors,2 indecent assault,3 aggravated indecent assault,4 and involuntary deviate sexual intercourse.s The charges arose from alleged .incidents in 1997 involving Defendant's 10 -year-old niece.6 ' Defendant's Motion for Post Conviction Collateral Relief, .filed November 7, 2016. 2 Act of July 1, 1978, P.L. 573, §1, as amended, 18 Pa. C.S. §6301(a)(1). This offense was a misdemeanor of the first degree. Id. 3 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3126(a)(7). This offense was a misdemeanor of the first degree. Id. 4 Act of February 2, 1990, P.L. 6, §5, as amended, 18 Pa_ C.S. §3125(a)(7). This offense was a felony of the second degree. Id. 5 Act of December 6, 1972, P.L. 573, § 1, as amended, 18 Pa. C.S. §3123(a)(6). This offense was a felony of the first degree. Id. Section 3123 of the Crimes Code was amended in certain respects subsequent to the events that formed the basis for the charge herein. See Act of December 16, 2002 (P.L. 1953, No. 226). See Order of Court, November 2, 2006. 6 Criminal Complaint, filed April 9, 2002. Defendant was sentenced on December 19, 2006.' He received concurrent statutorily mandated minimum prison sentences of 2'/z to 5 and 5 to 10 years respectively for the offenses of aggravated indecent assault and involuntary deviate sexual intercourse, and sentences of probation consecutive thereto for the remaining two offenses." The mandatory minimum sentences for aggravated indecent assault and involuntary deviate sexual intercourse were imposed pursuant to 42 Pa. C.S. §9718(a)(1), (2), prescribing minimum sentences for certain offenses involving a victim less than 13 years old and 16 years old respectively_ Following an unsuccessful direct appeal, he was committed to prison on July 21, 2007.9 For purposes of the Post Conviction Relief Act, his judgment of sentence became final on October 7, 2009.° Defendant's first petition for collateral relief under the Post Conviction Relief Act was filed on June 17, 2010,11 and supplemented on August 23, 2010.12 It was denied by order of this court dated December 5, 2011.13 The order denying the petition was affirmed by the Pennsylvania Superior Court on October 4, 2012,14 and Defendant's ' Order of Court, December 19, 2006. 8 Id. 9 Order of Court, July 21, 2009. 10 On direct appeal, the judgment of sentence was affirmed by the Pennsylvania Superior Court on December 29. 2008. Commonwealth v. Hurley, 596 MDA 2007 (Pa. Super. Ct. Dec. 29, 2008). Defendant's petition for allowance of appeal from the affirmance was denied by the Pennsylvania Supreme Court on July 9, 2009. Commonwealth v. Hurley, 602 Pa. 676, 981 A.2d 218 (2009). See 42 Pa. C.S. §9545(b)(3) ("For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review_") (emphasis added); Commonwealth v. (livens, 718 A.2d 330 (Pa. Super. Ct. 1998) (acknowledgment of 90 -day period within which to seek review in United States Supreme Court by petition for writ of certiorari). 11 Lane C. Hurley's Petition for Post -Conviction Collateral Relief, filed June 17, 2010. 12 Supplemental PCRA Pleading, filed August 23, 2010. 13 Order of Court, dated December 5, 2011. 14 Commonwealth v. Hurley, 2220 MDA 2011 (Pa. Super. Ct. Oct. 4, 2012). 2 petition for allowance of appeal from the affirmance was denied by the Pennsylvania Supreme Court on May 15, 2013.5 Defendant's current Post Conviction Relief Act petition, filed November 7, 2016, in substance challenges the legality of his sentences for aggravated indecent assault and involuntary deviate sexual intercourse, citing Alleyne v. United States, — U.S. , 133 S. Ct. 21511, 186 L. Ed. 2d 314 (June 17, 2013) (holding that sixth amendment requires that factor which increases mandatory minimum sentence be considered element of offense to be found by trier -of -fact by proof beyond a reasonable doubt), and its progeny. A hearing on the petition was held on February 2, 2017. For the reasons stated in this opinion, Defendant's petition can not be granted. STATEMENT OF FACTS The complex procedural and factual history of this case, which includes a retrial arising out of Defendant's claim of ineffective assistance of counsel, 16 has been recounted in opinions of this court dated August 9, 2007, and December 5, 2011, and will not be here repeated. As noted above, Defendant's sentence became final on October 7, 2009, and his current PCRA petition was filed on November 7, 2016. In response to Defendant's petition challenging the legality of his mandatory minimum sentences for aggravated indecent assault and involuntary deviate sexual intercourse, pursuant to Alleyne 17 and its progeny, the Commonwealth filed an answer and motion to dismiss." This response contended that the petition was neither timely " Commonwealth v. Hurley, 620 Pa. 697, 67 A.3d 794 (May 15, 2013). Defendant has also pursued what has thus far been an unsuccessful collateral challenge to his convictions in federal court. See Hurley v. Thompson, 2016 U.S. Dist. LEXIS 87527 (magistrate's recommendation) (M.D. Pa. June 29, 2016). 16 See Order of Court, dated February 20, 2004. 17 _ U.S. � 133 S. Ct. 2151, 186 L. Ed. 2d 314 (June 17, 2013). " Commonwealth's Answer to Defendant's PCRA Petition and Request for Dismissal without a Hearing, filed December 27, 2016. 3 under the Post Conviction Relief Act nor meritorious inasmuch as the constitutional rule recognized in Alleyne was not retroactive for purposes of collateral review.'9 Defendant filed a reply to the Commonwealth's response.20 His reply contended that the issue of timeliness depended upon an application of an exception to the general one-year period of limitation in the Post Conviction Relief Act, relating to recent decisions, and that the court should "address the retroactivity of Alleyne on mandatory minimums as to attacks on collateral review." 21 STATEMENT OF LAW Under Section 9545(b) of the Post Conviction Relief Act, it is provided as follows: (b) Time for filing petition (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:.. . (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.22 The limitation periods for filing PCRA petitions provided for in the act are jurisdictional. Commonwealth v. Burton, 2007 PA Super 319, 936 A.2d 521. In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United States Supreme court held that the due process clause of the fourteenth 19 Id. 20 Defendant's Reply to Commonwealth's Answer to Defendant's PCRA Petition and Request for Dismissal without a Hearing, filed January 23, 2017. 21 Id 22 42 Pa. C.S. § 9545(b)(1)(iii), (2). 0 amendment to the federal constitution, in conjunction with the sixth amendment, entitles a state defendant to a jury finding on the basis of proof beyond a reasonable doubt of a factor that statutorily increases the maximum sentence applicable to an offense. In Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), the Court extended the principle of Apprendi to encompass a factor that increases a mandatory minimum sentence applicable to an offense, pursuant to the federal constitution's sixth amendment. The rule in Alleyne has been widely applied to factors that mandate minimum sentences for offenses. See, e.g., Commonwealth v Hopkins, _ Pa. _, 117 A.3d 247 (2015). And on June 20, 2016, the Alleyne principle was held by the Pennsylvania Supreme Court to extend to a factor mandating a minimum sentence without regard to whether the factor was a statutory element of the offense upon which the guilty verdict had been predicated. Commonwealth v. Wolfe, _ Pa. _, 140 A.3d 651 (2016) (affirming remand for resentencing on direct appeal where defendant subjected to mandatory minimum sentence, on basis of victim's age, for offense of involuntary deviate sexual intercourse with child under age of 16). However, the current state of the law in Pennsylvania is that the rule of Alleyne is not to be applied retroactively on collateral review of a sentence that became final before the decision in Alleyne, notwithstanding that it may serve to render a sentence impeachable on a direct appeal. Commonwealth v. Washington, _ Pa. _, 142 A.3d 810 (2016); cf. Commonwealth v. Barnes, Pa. A.3d (2016) (holding that, for purposes of issue preservation on direct appeal, sentence in violation of Alleyne rule is illegal and thus non-waivable).7-3 23 In Commonwealth v. Ruiz, 2015 PA Super 275, 131 A.3d 54, where Alleyne was decided during the 30 - day direct appeal period and Defendant's subsequent PCRA petition was filed within one year of the finality of his judgment of sentence, the rule in Alleyne was held to afford relief. Unfortunately for Defendant, his sentence had become inial prior to the decisions in Alleyne and its progeny and the holding in Ruiz can not be considered controlling in light of the less distinguishable case of Washington. To the extent that Defendant has argued that a certain habeas corpus challenge to his conviction (see note 15 supra) that is said to remain pending in federal court should be regarded as an extension of his direct appeal for purposes of a retroactive application of the Alleyne rule to his case, the court is unable to agree with the contention. See Vasquez v. Hillery, 474 U.S. 254, 257, 106 S. Ct. 617, 620, 88 L. Ed. 2d 5 APPLICATION OF LAW TO FACTS In the present case, Defendant's petition under the Post Conviction Relief Act is not timely under the general rule requiring a filing within one year of sentence finality. Nor is the 60 -day exception to the general rule in the case of a newly recognized constitutional right applicable to Defendant's petition. In the latter regard, even if the application in Commonwealth v. Wolfe, _ Pa. 140 A.3d 651 (June 20, 20 16) of the Alleyne rule to sentences such as Defendant's where the mandatory sentencing factor was necessarily found to have been proven beyond a reasonable doubt by the trier-of=fact in returning a guilty verdict is regarded as advancing a new constitutional right, the decision (a) preceded Defendant's current petition by more than 60 days and (b) did not involve a retroactive right for purposes of collateral relief. Although Defendant has actually now been incarcerated beyond the time contemplated in the judgment of sentence for his release (assuming good behavior while in prison), any change in the established state of the law as it relates to the legality of his sentence for purposes of collateral review is a matter within the province of the appellate courts. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 13th day of February, 2017, upon consideration of Defendant's second petition under the Post Conviction Relief Act, following a hearing held on February 2, 2017, and for the reasons stated in the accompanying opinion, the petition is dismissed. NOTICE is hereby given to Defendant of his right to file an appeal from this order to the Pennsylvania Superior Court within 30 days of its entry. 598, 604 (1986) (federal habeas corpus challenge to state conviction described as vehicle for "collateral relief in federal court"); Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345 (2011) (discussion of nature of federal habeas corpus review with respect to state convictions). 6 Charles J. Volkert, Esq. Chief Deputy District Attorney Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Attorney for the Commonwealth Stephanie L. Cesare, Esq. Abom & Kutulakis 2 West High Street Carlisle, PA 17013 Court-appointed Attorney for Petitioner Lane C. Hurley JC9260 SCI Laurel Highlands 5706 Glades Pike P.O. Box 631 Somerset, PA 15501-0631 Defendant/Petitioner Regular and Certified Mail 7 BY THE COURT, J. /J/�' Jesley Ol ' Jr., S.J.