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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : YUSEF MITCHELL : : Appellant : No. 634 EDA 2024 Appeal from the PCRA Order Entered February 9, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0208791-2000 BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.

MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 19, 2025 Yusef Mitchell (“Mitchell”) appeals the denial of his second, counseled petition under the Post Conviction Relief Act (“PCRA”). 1 We affirm.

In November 2000, Mitchell pled guilty to conspiracy, violating the Uniform Firearms Act, and possessing a controlled substance with the intent to deliver. The trial court imposed an aggregate sentence of three to six years of incarceration followed by ten years of consecutive probation.

In April 2006, while on parole in the above-listed case, Mitchell committed new drug offenses for which his parole was revoked and he was ordered to serve one year of imprisonment. In June 2007, following a violation of probation hearing, the trial court anticipatorily revoked Mitchell’s probation in this case and imposed an aggregate term of seven-to-fourteen years of ____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546.

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imprisonment. This Court affirmed Mitchell’s judgment of sentence. See Commonwealth v. Mitchell, 955 A.2d 433 (Pa. Super. 2008). The Pennsylvania Supreme Court denied Mitchell’s petition for allowance of appeal on January 27, 2009. See Commonwealth v. Mitchell, 964 A.2d 894 (Pa. 2009). Mitchell filed a PCRA petition in October 2009. In February 2011, the PCRA court dismissed Mitchell’s petition. This Court affirmed the dismissal.

See Commonwealth v. Mitchell, No. 496 EDA 2011 (Pa. Super. 2012) (memorandum).

Mitchell filed the instant pro se PCRA petition in August 2021.

Thereafter, the Defender Association of Philadelphia filed an amended PCRA petition. The parties agreed to stay the instant petition, challenging the legality of anticipatory revocation of probation, pending the Supreme Court’s decision of the issue. The Pennsylvania Supreme Court subsequently determined in Commonwealth v. Rosario, 294 A.3d 338 (Pa. 2023), that anticipatory revocation of probation is illegal. Following the submission of supplemental briefs, the PCRA court issued a Rule 907 notice of intention to dismiss. On February 9, 2024, the court dismissed Mitchell’s PCRA petition.

Mitchell timely appealed and he and the PCRA court complied with Pa.R.A.P. 1925.

On appeal, Mitchell presents three issues for our review: 1. Did the [PCRA] court err in dismissing [Mitchell’s] PCRA petition as time-barred?

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2. Did the [PCRA] court err in not exercising its inherent power to correct obvious and patent errors in sentencing orders to vacate [Mitchell’s] illegal sentence?

3. Is the PCRA statute unconstitutional as it denies [Mitchell] of substantive due process of law by denying him an avenue to correct [an] obvious and patent[ly] illegal sentence?

Mitchell’s Brief at 2-3.2 Mitchell’s first issue asserts the PCRA court erred by dismissing his PCRA petition as untimely filed because he established the existence of a new constitutional decision retroactively applied under 42 Pa.C.S.A.

§ 9545(b)(1)(iii).

Our standard of review of an order dismissing a PCRA petition is well- settled: We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level.

This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

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2 For ease of analysis, we have reordered Mitchell’s issues.

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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).3 Pennsylvania courts may consider an untimely PCRA petition if the petitioner explicitly pleads and proves one of three exceptions set forth under section 9545(b)(1), which provides: (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: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the ____________________________________________

3 A judgment of sentence 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. See 42 Pa.C.S.A. § 9545(b)(3).

Mitchell’s judgment of sentence became final on April 27, 2009, ninety days after the January 26, 2009, denial of his petition for allowance of appeal, when his time for filing a petition for writ of certiorari to the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. Rule 13.1.

Mitchell had until April 27, 2010, to timely file the instant PCRA petition. He filed the instant petition in August 2021. Thus, Mitchell’s petition is facially untimely under the PCRA, which precludes review of the merits of the issues raised in the petition absent a time-bar exception. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

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Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1) (emphasis added). See Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (holding to establish the new constitutional right exception, a petitioner must show a constitutional right recognized by the United States or Pennsylvania Supreme Courts and deemed retroactively applicable to cases on collateral review at the time the PCRA petition was filed). A PCRA court lacks jurisdiction to entertain an untimely PCRA petition unless a petitioner can plead and prove a time-bar exception and the exercise of due diligence in discovering his claim. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 784 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(2).

Mitchell asserts under Rosario anticipatory revocation sentences are illegal and create a new, substantive rule of law. He argues this Court’s ruling in Commonwealth v. Diaz, 314 A.3d 852 (Pa. Super. 2024), that Rosario does not apply retroactively is “wrong,” and Rosario clearly announced a substantive, not a procedural, rule. Mitchell’s Brief at 16-18.

The PCRA court stated Rosario did not create a new constitutional right, stating, “[T]he abrogation of anticipatory revocation represents a significant change in sentencing practice,” and noting Rosario used the terms “unlawful” and “illegal” but never determined the former practice to be unconstitutional.

PCRA Court Opinion, 4/10/24, at 4, quoting Rosario, 294 A.3d at 356. The

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court also noted the Pennsylvania Supreme Court has never determined Rosario applies retroactively. See PCRA Court Opinion, 4/10/24, at 5.

The PCRA court’s finding is correct; neither the United States Supreme Court, nor the Pennsylvania Supreme Court has held Rosario applies retroactively. For that reason alone, Mitchell failed to establish the application of the newly recognized constitutional right exception, 42 Pa.C.S.A. § 9545(b)(1)(iii). See Commonwealth v. Taylor, 283 A.3d 178, 187 (Pa. 2022) (stating the “has been held” language of 42 Pa.C.S.A. § 9545(b)(1)(iii) “means the action has already occurred, i.e., [the U.S. Supreme Court or Pennsylvania Supreme Court] has already held the new constitutional right to be retroactive to cases on collateral review”). In addition, as the PCRA court and panels of this Court have stated, the Pennsylvania Supreme Court decided Rosario on statutory, not constitutional, grounds. See PCRA Court Opinion, 4/10/24, at 4, citing Rosario, 294 A.3d at 346-56. Accord Commonwealth v. Peiffer, 2024 WL 4589862 at *3, n.7 (Pa. Super., October 28, 2024) (unpublished memorandum); 4 Commonwealth v. Stains, 323 A.3d 234, at *4 (Pa. Super. 2024) (unpublished memorandum). Moreover, this Court has declined to give Rosario retroactive effect. See Diaz, 314 A.3d at 855.5 ____________________________________________

4 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this Court filed after May 1, 2019, for their persuasive value).

5 As noted, Mitchell argues Diaz’s holding was “wrong.” Mitchell’s Brief at 17.

Diaz is a published opinion of this Court. It is beyond this panel’s power to (Footnote Continued Next Page)

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Thus, the PCRA court did not err by finding Mitchell failed to establish the new constitutional right exception, and that it lacked jurisdiction to conduct a retroactivity analysis on his untimely PCRA petition. See Commonwealth v. Reid, 235 A.3d 1124, 1154, n.18 (Pa. 2020).6 Mitchell next asserts that Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007) gives a PCRA court the inherent power to correct obvious and patent sentencing errors. See Mitchell’s Brief at 8-15.

The PCRA court declined to apply Holmes to reach the merits of Mitchell’s sentencing claim, noting Holmes recognized Section 5505 provides a court with only a limited power to alter a sentence after thirty days. See PCRA Court Opinion, 4/10/24, at 6. The court concluded Holmes did not confer jurisdiction to correct a seventeen-year-old sentence that was not illegal when imposed. See PCRA Court Opinion, 4/10/24, at 6. ____________________________________________

overrule that decision except where intervening Supreme Court authority calls a previous decision into doubt. See Commonwealth v. Postie, 200 A.3d 1015, 1209-30 (Pa. Super. 2018) (en banc). No such intervening authority exists.

6 Mitchell cited authority for the proposition a retroactive decision may be applied on PCRA review is inapposite. In Rivera-Figueroa, 174 A.3d 674 (Pa. Super. 2017), the Pennsylvania Supreme Court had declared unconstitutional the statute that was the basis of the PCRA petition and had also declared a new substantive rule of constitutional law. See 174 A.3d at 677-78. No such declaration occurred here. Moreover, Rivera-Figueroa addressed a timely-filed PCRA petition, not an untimely one. See Commonwealth v. Knecht, 219 A.3d 689, 692 (Pa. Super. 2019) (holding Rivera-Figueroa addressed a timely filed PCRA petition and an untimely filed PCRA petition must establish the application of 42 Pa.C.S.A. § 9545(b)(1)(iii)).

Accord Commonwealth v. Murphy, 180 A.3d 402, 406 (Pa. Super. 2018).

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The court properly declined to give Holmes the expansive reading Mitchell propounds. In both companion cases addressed in Holmes (“Holmes” and “Whitfield”), a trial court corrected its own error more than 30 days after sentencing.7 See Commonwealth v. Jackson, 30 A.3d 516, 520 (Pa. Super. 2011). Further, although Holmes recognized Section 5505 has been read to recognize a court’s inherent power to correct “obvious and patent mistakes” in its orders, it emphasized such power exists narrowly: The exception to the general rule of Section 5505 cannot expand to swallow the rule. In applying the exception to the cases at bar, we note that it is the obviousness of the illegality, rather than the illegality itself, that triggers the court’s inherent power. Not all illegal sentences will be amenable to correction as patent errors.

Jackson, id., citing Holmes, 933 A.2d at 66-67. Jackson further explained although Holmes recognized the limited authority of a trial court under Section 5505 to correct patent errors in sentences, it “did not establish an alternative remedy for collateral relief that sidesteps the jurisdictional requirements of the PCRA.” See Jackson, 30 A.3d at 521-22 (further noting section 9545 jurisdiction was not at issue in Holmes and Whitfield because the courts amended those sentences within one year of the time they became final). Thus, Holmes concluded, because Jackson sought relief nearly 20

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7 In Holmes, the court had improperly sentenced the defendant for a violation of probation rather than the violation of parole he committed; in Whitfield, the court vacated its erroneous sentence for a probation violation when it determined Whitfield’s probation had expired at the time of the new offense.

See Jackson, 30 A.3d at 520.

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years after his judgment of sentence became final, he was required to establish a time-bar exception to obtain review of his illegal sentence claim.

See id. at 521-523 (also recognizing that section 9545 is not amenable to equitable exceptions).8 Upon review it is clear that the PCRA court properly concluded it lacked inherent power to correct what Mitchell contends was an obvious and patent error.

Finally, although his argument is unclear, Mitchell appears to assert Montgomery v. Louisiana, 577 U.S. 190 (2016), applies and compels the grant of relief under the Supremacy Clause of the United States Constitution

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8 Mitchell asserts Jackson failed to apply Holmes in a time-bar context, and the Pennsylvania Supreme Court failed to correct Jackson in Commonwealth v. McGhee, 302 A.3d 659 (Pa. 2023). See Mitchell’s Brief at 11-15. However, in both Commonwealth v. Whiteman, 204 A.3d 448 (Pa. Super. 2019); and Jackson, 30 A.3d at 521, this Court held we lack jurisdiction to review an illegal sentence claim raised in an untimely PCRA petition. Moreover, we specifically concluded in Commonwealth v. Concordia, 97 A.3d 366 (Pa. Super. 2014) that Holmes does not permit a court to revise a sentence after 30 days as an “obvious and patent” error where “the issue was not apparent from the record at the time of sentencing[] but is based on a subsequent interpretation of nuanced statutory provisions”.

See id. at 371.

Additionally, Whiteman noted the difference a trial court’s sua sponte correction of its own erroneous sentence in accordance with section 5505, and a sentencing challenge in a PCRA petition. See Whiteman, 204 A.3d at 451.

Finally, Whiteman, noted section 5505 permits modification of orders “[e]xcept as otherwise provided or prescribed by law,” indicating section 5505 contemplates other sources of jurisdiction, whereas the PCRA explicitly states it is “the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purposes[.]” See id. at 450-51 (emphasis added).

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because there is no means for him to challenge his sentence, rendering the PCRA unconstitutional. See Mitchell’s Brief at 18-25.9 The PCRA court rejected Mitchell’s unconstitutionality claim. It noted Mitchell’s sentence was not illegal when imposed and recognized the Rosario Court was presumably ”cognizant of the effect that non-retroactivity would have on cases in a similar posture.” See PCRA Court Opinion, 4/10/24, at 6- 7. It concluded there is no legal vehicle for the court to claim jurisdiction and revise Mitchell’s sentence. See id. at 6-7.

The PCRA court did not err by rejecting Mitchell’s constitutional challenge. Montgomery holds, inter alia, that when the United States Supreme Court (“SCOTUS”) recognizes a new substantive rule of constitutional law, it applies retroactively. See Montgomery, 577 U.S. at 199, 212 (holding mandatory sentences of life imprisonment without parole involving Juveniles violates the Eighth Amendment prohibition on cruel and unusual punishment, and explicitly states the decision applies retroactively).

Rosario, however, did not find a new constitutional right or declare the prior sentencing practice unconstitutional. While it is true that if the Supreme Court declares the Constitution establishes a rule and requires its retroactive application, a state court cannot refuse to do so. Here, however, the Supreme

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9 Mitchell also asserts a violation of the separation of powers.

See Mitchell’s Brief at 25. He does not explain how a court ruling concerning procedural rules could constitute an unconstitutional judicial usurpation of legislative powers.

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Court of the United States did not declare a substantive constitutional violation, and neither did the Pennsylvania Supreme Court for that matter.

Thus, Montgomery provides no basis for relief. Mitchell does not have a path to challenge a sentence that was legal at the time the sentencing court imposed it where the sentence does not have a federal (or State) constitutional dimension and does not render the PCRA unconstitutional. 10 Thus, no relief is due under Mitchell’s Supremacy Clause theory.

Order affirmed.

Date: 2/19/2025

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10 Moreover, generally even new constitutional rules of criminal procedure, which Rosario is not, do not apply retroactively. See Montgomery, 577 U.S. at 198, citing Teague v. Lane, 489 U.S. 288 (1989). Nor would Teague’s two exceptions be a basis for granting relief, because Rosario neither announces a new substantive rule of constitutional law, nor constitutes a “watershed rule of criminal procedure” implication the fundamental fairness of the criminal proceeding. See id., citing inter alia, Teague, 489 U.S. at 307, 312-13.

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