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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

AHMAAD RASHAD HOLTON

                             Appellant                No. 1756 MDA 2015


                Appeal from the PCRA Order September 22, 2015
       in the Court of Common Pleas of Dauphin County Criminal Division
                       at No(s): CP-22-CR-0001297-2011

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 15, 2016

        Appellant, Ahmaad Rashad Holton, appeals pro se from the order

entered in the Dauphin County Court of Common Pleas dismissing his second

Post Conviction Relief Act1 (“PCRA”) petition.     Appellant contends that his

guilty plea counsel was ineffective and also avers that the trial court erred

by failing to apply Alleyne v. United States, 133 S. Ct. 2151 (2013)

retroactively. We affirm.

        On September 21, 2011, Appellant entered a negotiated guilty plea to

robbery, criminal conspiracy, person not to possess firearms, and carrying a

firearm without a license. That same day, the trial court sentenced him to

an aggregate term of eleven to twenty-two years of imprisonment.


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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Appellant did not file a post-sentence motion or direct appeal. On October

3, 2011, Appellant filed a timely pro se PCRA petition.             Counsel was

appointed on October 5, 2011, and was subsequently granted leave to file a

supplemental PCRA petition on behalf of Appellant. However, PCRA counsel

filed a motion to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc), which the PCRA court granted by order dated

December 2, 2011. On December 28, 2011, the PCRA court issued an order

dismissing Appellant’s first PCRA petition.       Appellant filed a timely appeal,

which this Court dismissed on May 8, 2012.

     Over two years later, on December 12, 2014, Appellant filed the

instant, pro se PCRA petition.    After the PCRA court denied Appellant’s

motion for the assignment of counsel but granted him an extension of time,

Appellant ultimately filed a supplemental PCRA petition on April 6, 2015. On

July 2, 2015, the PCRA court issued a memorandum opinion and order

containing the   court’s Pa.R.Crim.P.       907    notice   of intent to   dismiss

Appellant’s second PCRA petition. On September 22, 2015, the PCRA court

dismissed Appellant’s petition. Appellant filed a timely appeal and a court-
                                        2
ordered Pa.R.A.P. 1925(b) statement.         On December 29, 2015, the PCRA


2
  We note that the PCRA court found Appellant’s instant claims to be waived
due to his failure to file a timely Pa.R.A.P. 1925(b) statement of matters
complained of on appeal. Trial Ct. Op., 12/28/15. Conversely, Appellant
contends that he did file a timely Rule 1925(b) statement, based upon the



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court filed a Pa.R.A.P. 1925(a) opinion incorporating the analysis set forth in

its Rule 907 notice of intent to dismiss.

       This appeal followed wherein Appellant raises the following issues for

our review:

         1. Whether plea counsel (Deanna Muller, Esq. and Royce
         Morris, Esq.) rendered ineffective assistance of counsel by
         inducing Appellant to plead guilty to an aggregated
         sentence that ran consecutively which created a sentence
         that was manifestly excessive and clearly unreasonable.?

         2. Whether plea counsel (supra) were ineffective for failing
         to conduct an independent inquiry as to whether
         Appellant’s plea colloquy was knowing, voluntary and
         intelligent?

         3. Did the trial court err in asserting that Alleyne v.
         United States did not apply retroactively to those on
         collateral review, where the Supreme Court’s ruling is
         clearly one of a “substantial nature” pursuant to Schriro
         v. Summerline, 542 US 348 (2004)[?]

Appellant’s Brief at 3.

      Appellant argues that his plea counsel was ineffective for inducing him

to plead guilty to a manifestly excessive sentence and for failing to ensure

that his guilty plea was knowing, voluntary, and intelligent. Id. Appellant

also contends that his sentence is illegal pursuant to Alleyne, 133 S. Ct. at

2163 (holding that any fact that invokes application of a mandatory




timing in which he received the PCRA court’s order directing him to file such
statement from the SCI-Houtzdale institutional mail. Appellant’s Letter to
Prothonotary, filed 6/06/16. For purposes of this appeal, we assume that
Appellant’s Rule 1925(b) statement was timely.



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minimum sentence must be proven beyond a reasonable doubt and

submitted to a jury). Id.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”     Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

However, it is well established that the timeliness requirements of the PCRA

are jurisdictional in nature as our Supreme Court has explained:

         the PCRA timeliness requirements are jurisdictional in
         nature and, accordingly, a PCRA court is precluded from
         considering untimely PCRA petitions.            See, e.g.,
         Commonwealth v. Murray, 753 A.2d 201, 203 ([Pa.]
         2000) (stating that “given the fact that the PCRA’s
         timeliness requirements are mandatory and jurisdictional
         in nature, no court may properly disregard or alter them in
         order to reach the merits of the claims raised in a PCRA
         petition that is filed in an untimely manner”);
         Commonwealth v. Fahy, 737 A.2d 214, 220 ([Pa.] 1999)
         (holding that where a petitioner fails to satisfy the PCRA
         time requirements, this Court has no jurisdiction to
         entertain the petition). We have also held that even where
         the PCRA court does not address the applicability of the
         PCRA timing mandate, th[e] Court will consider the issue
         sua sponte, as it is a threshold question implicating our
         subject matter jurisdiction and ability to grant the
         requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (some

citations and parallel citations omitted).

      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim


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could have been presented.”    Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted). Pursuant to 42

Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of

direct review by this Court or the United States Supreme Court, or at the

expiration of the time seeking such review.” Commonwealth v. Jones, 54

A.3d 14, 17 (Pa. 2012) (citations omitted).

     When a petition is filed outside the one-year time limit, petitioners

must plead and prove the applicability of one of the three exceptions to the

PCRA timing requirements. Commonwealth v. Johnston, 42 A.3d 1120,

1126 (Pa. Super. 2012) (“If the petition is determined to be untimely, and

no exception has been pled and proven, the petition must be dismissed

without a hearing because Pennsylvania courts are without jurisdiction to

consider the merits of the petition.” (citation omitted)).         The three

exceptions to the general one-year time limitation are:

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



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42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      In the case sub judice, Appellant did not file a direct appeal and

therefore his judgment of sentence became final thirty days after his

September 2011 sentencing.          See Jones, 54 A.3d at 17; 42 Pa.C.S. §

9545(b)(3).   Thus, his instant PCRA petition, which was filed in December

2014, is untimely on its face.       Appellant does not assert that any of the

exceptions in Section 9545(b)(i)-(iii) apply to this case.    Accordingly, the

PCRA court lacked jurisdiction to consider the merits of Appellant’s claim and

we cannot address his PCRA petition.         See Johnston, 42 A.3d at 1126.

Further, it is of no moment that the PCRA court did not specifically address

the untimely nature of Appellant’s PCRA petition, because this Court will

address this threshold question sua sponte.       See Whitney, 817 A.2d at

477-78.

      We note that even had Appellant argued that his Alleyne claim

constituted an after-discovered constitutional right pursuant to the PCRA

time-bar exception 42 Pa.C.S. § 9545(b)(1)(iii), his claim would lack merit.

Neither the United States Supreme Court nor the Pennsylvania Supreme

Court has held that Alleyne applies retroactively to untimely PCRA petitions.

Indeed, our Supreme Court recently held that Alleyne does not apply

retroactively to cases pending on collateral review.      Commonwealth v.

Washington, ___ A.3d ___ , ___ , 2016 WL 3909088 at *8 (Pa. July 19,

2016).    Accordingly, because Appellant has not established any of the



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timeliness exceptions to the PCRA time-bar, the PCRA court lacked

jurisdiction to address his claims and we affirm the dismissal of Appellant’s

instant untimely PCRA petition. See Johnston, 42 A.3d at 1126.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2016




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