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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARVIN JONES,

                            Appellant                No. 3585 EDA 2015


                Appeal from the PCRA Order November 2, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000895-2006


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 28, 2016

       Appellant, Marvin Jones, appeals from the order denying his second

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the procedural history of this case as

follows:

              On March 20, 2008, a non-jury trial was held in front of
       The Honorable [. . .] Patricia H. Jenkins. Petitioner was found
       guilty of the following charges: Information A: possession with
       intent to deliver1, Information B: possession of a controlled
       substance2     and    Information   C:   possession   of   drug
       paraphernalia3.
              1
                  35 [P.S.] §780-113(a)(30).

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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          2
              35 [P.S.] §780-113(a)(16).
          3
              35 [P.S.] §780-113(a)(32).

             On April 28, 2008, Petitioner was sentenced as follows:
     Information A: seven to fourteen years in a state correctional
     facility and on Information C: one year of state probation
     concurrent to Information A.4 Petitioner did not file any post-
     sentence motions.
          4
             Information B merged with Information A for
          purposes of sentencing.

           Petitioner filed a timely notice of appeal to the
     Pennsylvania Superior Court on May 28, 2008. The Superior
     Court affirmed Petitioner’s judgment of sentence on December
     31, 2009[,] 1547 EDA 2008. On February 1, 2010, Petitioner
     filed a petition for allowance of appeal in the Pennsylvania
     Supreme Court, which was denied on June 24, 2010[,] 88 MAL
     2010.

            Petitioner filed a PCRA Petition on February 27, 2014. The
     case was re-assigned to this Court who appointed PCRA counsel
     on March 31, 2014. On May 30, 2014, counsel was granted a
     continuance. On June 30, 2014, PCRA counsel submitted an
     application to withdraw as counsel and a no merit letter pursuant
     to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and
     Commonwealth. v. Turner, 544 A.2d 927 ([Pa.] 1988). After
     review of PCRA Counsel’s documents, the record, and Petitioner’s
     PCRA Petition, this Court agreed with PCRA counsel that the
     Petition was untimely and this Court issued a notice of intent to
     dismiss without a hearing on July 2, 2014 and granted counsel’s
     request to withdraw.

           Petitioner responded to the notice of intent to dismiss on
     July 10, 2014 and July 17, 2014. This Court issued an Order
     dismissing the Petition on July 28, 2014. Petitioner appealed on
     August 15, 2014. This Court issued a 1925(b) Order on August
     21, 2014, which Petitioner responded to on September 2, 2014.
     This Court filed its Opinion on October 10, 2014.

          In a non-precedential decision filed on March 30, 2015, the
     Superior Court stated it agreed with [the trial court’s] sound
     reasoning and affirmed on that basis. In addition, the Superior

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      Court noted that even if Appellant had filed his petition within
      the sixty-day period specified by Section 9545(b)(2) following
      the decision in Alleyne, Petitioner still would not be eligible for
      relief because Alleyne does not apply retroactively to cases on
      PCRA review. Commonwealth v. Miller, 102 A.2d 988, 995 (Pa.
      Super. 2014). Petitioner filed a petition for allowance of appeal
      to the Pennsylvania Supreme Court which he later withdrew.

            On August 12, 2015, privately retained counsel for
      Appellant filed a second Post-Conviction Relief Act Petition.
      Counsel filed a [supplement] to her petition on August 13, 2015.

                                    * * *

            This [c]ourt filed a notice of intent to dismiss on October 8,
      2015. Counsel responded on October 19, 2015. This [c]ourt
      dismissed the Petition on November 2, 2015. Counsel filed an
      appeal on November 20, 2015. This [c]ourt did not issue a
      1925(b) order because the sole issue at hand is whether this
      [c]ourt erred in dismissing the petition which included only one
      issue, the legality of the mandatory minimum sentence.

Trial Court Opinion, 12/7/15, at 1-4 (internal footnote omitted).

      Appellant presents the following issues for our review:

             Whether the PCRA Court erred when it denied the PCRA
      petition as untimely?

            Whether the [Commonwealth v. Hopkins, 117 A.3d 247
      (Pa. 2015)] decision is automatically retroactive to collateral
      review because it is the first interpretation by the State’s highest
      court of the constitutionality of criminal statutes authorizing the
      imposition of mandatory sentences on a class of criminal
      defendants or because it narrows the classes of people subject to
      increased punishment under [Montgomery v. Louisiana, 136
S. Ct. 718 (2016)] / [Welch v. United States, 136 S. Ct. 1257
      (2016)].

            Whether the PCRA Court erred when it did not exercise its
      inherent jurisdiction and vacate a sentence that is illegal,
      unconstitutional and void?

Appellant’s Brief at 1-2.

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      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

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

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).         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.”          42

Pa.C.S. § 9545(b)(3).

      However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.1 A petition invoking one of these exceptions must be filed




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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

       Our review of the record reflects that Appellant was sentenced on April

28, 2008. Appellant filed a direct appeal, and this Court affirmed Appellant’s

judgment of sentence on December 31, 2009. Commonwealth v. Jones,

1547 EDA 2008, 990 A.2d 47 (Pa. Super. filed December 31, 2009).

Appellant filed a petition for allowance of appeal which was denied on June

24, 2010.    Commonwealth v. Jones, 88 MAL 2010, 997 A.2d 1176 (Pa.

June 24, 2010). Appellant did not file a petition for writ of certiorari.
                       _______________________
(Footnote Continued)
1
    The exceptions to the timeliness requirement 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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).




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       Accordingly, Appellant’s judgment of sentence became final on

September 22, 2010, when the time for seeking certiorari from the United

States Supreme Court expired.2            See 42 Pa.C.S. § 9545(b)(3) (providing

that “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.”).    Therefore, Appellant had to file the current PCRA petition by

September 22, 2011, in order for it to be timely. Appellant did not file the

instant PCRA petition, his second, until August 12, 2015. Thus, Appellant’s

instant PCRA petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted.     42 Pa.C.S. § 9545(b)(2).           This is true despite the fact that

Appellant’s petition presents a challenge to the legality of his sentence. See

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)

(“Although legality of sentence is always subject to review within the PCRA,
____________________________________________


2
   Appellant had ninety days from the date of the Pennsylvania Supreme
Court’s decision on direct appeal to file a petition for a writ of certiorari with
the United States Supreme Court. Commonwealth v. Hackett, 956 A.2d
978, 980 n.4 (Pa. 2008); United States Supreme Court Rule 13.



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claims must still first satisfy the PCRA’s time limits or one of the exceptions

thereto.”).

      In his petition, Appellant argues that he is eligible for relief because:

      the sentence was based on unconstitutional statutes in violation
      of the Due Process Clause of the Fourteenth Amendment and
      Commonwealth v. Hopkins, 2015 PA Lexis 1282 (6/15/15)
      which interpreted Alleyne v. United States, 570 U.S. __, 133
S. Ct. 2151, 186 L. Ed. 2d 314 (2013) to mean that Pennsylvania
      statutes imposing mandatory minimums based on facts found by
      a judge based on a preponderance of the evidence were (and
      are) unconstitutional.

PCRA Petition, 8/12/15, at 1-2.          Appellant further alleges that “the

conviction was obtained and sentence imposed in violation of Alleyne . . .

[because] the prosecution did not produce a lab report proving the nature

and weight of the controlled substance beyond a reasonable doubt.”            Id.

Thus, Appellant’s argument may be characterized as an attempt to assert

the “new constitutional right” exception to the PCRA time-bar based on

Alleyne v. United States, 133 S. Ct. 2151 (2013), and Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015).

      In Alleyne, the Supreme Court held that the constitutional jury
      trial right requires any fact, other than a prior conviction, that
      triggers a mandatory minimum sentence to be proven beyond a
      reasonable doubt before the finder of fact.        Alleyne is an
      application of the Court’s prior pronouncement in Apprendi v.
      New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
      (2000), which ruled that any fact that increases a maximum
      sentence must be found by the factfinder beyond a reasonable
      doubt or admitted by the defendant during his guilty plea. In
      Alleyne, the United States Supreme Court expressly overruled
      Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153
L. Ed. 2d 524 (2002), which held that a fact that involves a
      mandatory minimum sentence does not implicate jury trial

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     rights.   Alleyne also implicitly abrogated McMillan v.
     Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67
     (1986), which withstood an Apprendi attack in the Harris
     decision.

          In   Commonwealth v. Newman,                99 A.3d 86
     (Pa.Super.2014) (relying upon Commonwealth v. Watley, 81
A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that
     Alleyne will be applied to cases pending on direct appeal when
     Alleyne was issued.

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)

(emphasis added).

     While this Court has held that Alleyne applies to cases that were on

direct appeal when Alleyne was issued, we have declined to construe that

decision as applying retroactively to cases in which the judgment of

sentence has become final.

     In concluding Alleyne does not satisfy the new retroactive
     constitutional right exception to the PCRA’s one year time bar,
     42 Pa.C.S. § 9545(b)(1)(iii), the [Commonwealth v. Miller,
     102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:

           Even assuming that Alleyne did announce a new
           constitutional right, neither our Supreme Court, nor
           the United States Supreme Court has held that
           Alleyne is to be applied retroactively to cases in
           which the judgment of sentence had become
           final. This is fatal to Appellant’s argument regarding
           the PCRA time-bar. This Court has recognized that a
           new rule of constitutional law is applied retroactively
           to cases on collateral review only if the United States
           Supreme Court or our Supreme Court specifically
           holds it to be retroactively applicable to those cases.

     Id. at 995 (citations omitted) (emphasis supplied).




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Commonwealth v. Ruiz, 131 A.3d. 54, 58 (Pa. Super. 2015) (emphasis in

original).   Indeed, our State Supreme Court recently held that “Alleyne

does not apply retroactively to cases pending on collateral review.”

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

      As noted, Appellant’s judgment of sentence was imposed on April 28,

2008, and became final on September 22, 2010. Alleyne was decided on

June 17, 2013.      Alleyne, 133 S. Ct. at 2151.      Appellant’s judgment of

sentence was finalized years before Alleyne was decided.           Therefore,

Appellant’s PCRA petition does not qualify for the new constitutional right

exception to the PCRA time bar under Alleyne.

      Furthermore, the Hopkins decision did not announce a “new rule”;

rather, it simply assessed the validity of 18 Pa.C.S. § 6317 under Alleyne

and concluded that particular mandatory minimum sentencing statute is

unconstitutional.   Nevertheless, even if Hopkins announced a new rule,

neither our Supreme Court nor the United States Supreme Court has held

that Hopkins applies retroactively to postconviction petitioners such as

Appellant.    As noted, Appellant’s judgment of sentence became final on

September 22, 2010, and Hopkins was not decided until June 15, 2015.

Consequently, to the extent Appellant attempts to rely on Hopkins, he has

not satisfied the time-bar exception of Section 9545(b)(1)(iii).

      Additionally, we note that although a challenge based on Alleyne does

implicate the legality of a sentence, “a legality of sentence claim may


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nevertheless be lost should it be raised . . . in an untimely PCRA petition for

which no time-bar exception applies.” Miller, 102 A.3d at 995-996. Thus,

the PCRA court properly dismissed Appellant’s instant PCRA petition as

untimely. It was filed beyond the one-year general deadline, and Appellant

cannot rely on Alleyne or its progeny to invoke the timeliness exception at

section 9545(b)(1)(iii).

      Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.     See Commonwealth v. Fairiror, 809 A.2d
396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).     Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.                See

Commonwealth        v.     Bennett,   930 A.2d 1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2016




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