Opinion
J-S41041-18 No. 2424 EDA 2017
07-31-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. GREGORY STOVER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 17, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1002462-1986 BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Gregory Stover, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which dismissed as untimely his serial petition filed under the Post Conviction Relief Act ("PCRA") and denied his request for habeas corpus relief. We affirm.
In its opinion, the PCRA court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises three issues for our review:
DOES THE RESIDUAL CLAUSE OF 18 PA.C.S. § 2502(B) VIOLATE CONSTITUTIONAL PROTECTIONS FOR DOCTRINE OF VAGUENESS BY FAILING TO PROVIDE APPROPRIATE NOTICE REQUIREMENTS AND ARBITRARILY CREATING A CLASS OF PEOPLE WHO HAVE BEEN SUBJECT TO CONDUCT VIOLATIONS WHICH THE LAW DOES NOT MAKE CRIMINAL WITHIN ITS SCHEME?
DOES THE FAILURE TO POSSESS A FINAL ENACTMENT DATE IN LEGISLATIVE ACT 1974, MARCH 26, NO. 46 CONSTITUTE A PROCEDURAL DEFECT, WHICH RENDERS SUCH ACT VOID FOR NEVER HAVING BEEN PROPERLY PASSED UNDER THE VOID AB INITIO DOCTRINE?(Appellant's Brief at 6).
DOES AMENDMENT AT 42 PA.C.S. § 9764(d)(3), AND JUDICIAL ENLARGEMENT OF SAME, CONFER A SUBSTANTIVE RIGHT ON THE D.O.C. TO RETROACTIVELY ENFORCE DETENTION THROUGH USE OF A COURT COMMITMENT FORM (DC-300B) RECEIVED PRIOR TO STATUTE'S FINAL ENACTMENT DATE VIOLATE, LAWS OF RETROACTIVITY; PA. CONSTITUTION; AND SUBSUMES IMPROPER PROCEDURES CLAIM OF JUDICIALLY CREATED LIFE IMPRISONMENT, ABSENT COURT ORDER, CONSTITUTES ILLEGAL DETENTION THAT EXCEEDS ANY LEGISLATIVELY IMPOSED MAXIMUM LIMIT AUTHORIZED BY STATUTE?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Tracy Brandeis-Roman, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed October 4, 2017, at 2-6) (finding: Appellant's current serial PCRA petition is facially untimely; in effort to invoke "new constitutional right" time-bar exception, Appellant relies on Alleyne v. United States and Commonwealth v. Hopkins ; neither case, however, announced new constitutional right that has been held to apply retroactively to untimely petitions on collateral review; Appellant also relies on Johnson v. United States and Welch v. United States ; nevertheless, Appellant cites no authority holding that Johnson and Welch satisfy "new constitutional right exception" to PCRA time-bar where PCRA petitioner was sentenced under state statutes; Appellant's remaining claims challenging his conviction or sentence, which were cognizable under PCRA, are time-barred with no exception pled; regarding Appellant's claim raised in writ of habeas corpus that Department of Corrections ("DOC") lacks legal authority for Appellant's continued detention due to absence of written sentencing order, record confirms court sentenced Appellant on November 21, 1988, copy of sentencing order is in Clerk of Courts, and docket reflects pronouncement of Appellant's sentence; moreover, even in absence of written sentencing order, DOC retains detention authority; Appellant's claims merit no relief). Accordingly, we affirm on the basis of the PCRA court's opinion.
See Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any fact that increases mandatory minimum sentence for crime is considered element of crime for fact-finder to find beyond reasonable doubt) and Commonwealth v. Hopkins , 632 Pa. 36, 117 A.3d 247 (2015) (holding mandatory minimum under 18 Pa.C.S.A. § 6317(a) (regarding drug delivery in school zone) is unconstitutional under Alleyne ).
In any event, Appellant was not subject to a mandatory minimum sentence under Section 6317(a), so Alleyne and Hopkins are inapplicable to his case.
See Johnson v. United States , ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (holding "residual clause" of federal Armed Career Criminal Act of 1984, which permits increased sentences for individuals who have committed three or more "violent felonies," including any felony that involves conduct that presents serious potential risk of physical injury to another, is unconstitutionally vague) and Welch v. United States , ___ U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) (holding Johnson announced new substantive rule that applies retroactively to cases on collateral review).
See Commonwealth v. Spotz , ___ Pa. ___, 171 A.3d 675 (2017) (holding neither Johnson nor Welch affords appellant relief because he was not sentenced under federal Armed Career Criminal Act; Johnson and Welch apply only to federal prisoners sentenced under relevant federal statute).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/31/18
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