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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JOHN ARTHUR ASKEW,

                            Appellant                 No. 503 MDA 2016


                   Appeal from the PCRA Order March 9, 2016
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0000515-1989


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 02, 2016

        Appellant, John Arthur Askew, appeals pro se from the order

dismissing his third petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        The relevant facts and procedural history of this case are as follows.

On September 8, 1989, a jury found Appellant guilty of two counts of

second-degree murder.1 Appellant’s conviction stems from his participation

in a burglary of the home of an elderly couple, during which they were

blindfolded, bound and gagged, and eventually starved to death. On April 4,



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2502(b).
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1990, the trial court sentenced Appellant to consecutive mandatory terms of

life imprisonment.2

        On May 2, 1991, Appellant filed his first PCRA petition, and the PCRA

court appointed counsel. While the petition was pending, Appellant filed a

separate petition seeking to file a direct appeal nunc pro tunc, which the trial

court granted on August 25, 1992.              This Court affirmed the judgment of

sentence on May 2, 1994. (See Commonwealth v. Askew, 647 A.2d 260

(Pa. Super. 1994)).        Our Supreme Court denied Appellant’s petition for

allowance of appeal on February 22, 1995.                (See Commonwealth v.

Askew, 655 A.2d 982 (Pa. 1995)).               On April 26, 1995, the PCRA court

denied Appellant’s PCRA petition, because the claims raised therein were

disposed of on direct appeal.             (See Opinion and Order, 4/26/95, at

unnumbered pages 1-2). Appellant filed a pro se second PCRA petition on

June 3, 2013, which the PCRA court subsequently dismissed as untimely.

        Appellant filed the instant pro se PCRA petition on November 4, 2015,3

averring a right to relief predicated on Alleyne v. United States, 133 S.Ct.



____________________________________________


2
    See 18 Pa.C.S.A. § 1102(b).
3
  Appellant’s PCRA petition was dated November 4, 2015, and docketed on
November 13, 2015.         Although this discrepancy does not affect our
disposition of this case, we will deem Appellant’s petition filed on November
4, 2015, pursuant to the prisoner mailbox rule. See Commonwealth v.
Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012).




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2151 (2013),4 and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).5

(See PCRA Petition, 11/04/15, at 3-4, 8, 15-16, 18, 25 (alleging his

mandatory life sentence is illegal pursuant to Alleyne and Hopkins)). On

February 11, 2016, the court issued Rule 907 Notice of its intent to dismiss

the petition without a hearing, as untimely. See Pa.R.Crim.P. 907(1). After

consideration of Appellant’s response, the court entered its order dismissing

the petition on March 9, 2016. This timely appeal followed.6

       Appellant raises the following questions for our review:
       1. Does 42 Pa.C.S. § 9545(b)(1)(i) apply?

       2. Does 42 Pa.C.S. § 9545(b)(1)(ii) apply?
____________________________________________


4
  In Alleyne, the United States Supreme Court held that under the Sixth
Amendment to the United States Constitution, a jury must find beyond a
reasonable doubt any facts that increase a mandatory minimum sentence.
See Alleyne, supra, at 2158. “The effect of Alleyne’s new rule was to
invalidate a range of Pennsylvania sentencing statutes predicating
mandatory minimum penalties upon non-elemental facts and requiring
such facts to be determined by a preponderance of the evidence at
sentencing.” Commonwealth v. Wolfe, 140 A.3d 651, 653 (Pa. 2016)
(citation omitted; emphasis added).
5
   In Hopkins, the Pennsylvania Supreme Court determined that 18
Pa.C.S.A. § 6317(a)—which imposes a mandatory minimum sentence of two
years’ imprisonment upon a defendant for a conviction if delivery or
possession with intent to deliver a controlled substance occurs within 1,000
feet of, inter alia, a school—is unconstitutional in light of Alleyne, and that
severance of the violative provisions from the statute is not permissible.
See Hopkins, supra at 249.
6
  The court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). The court filed an order
on April 6, 2016, relying on the prior documents it filed in this case for the
reasons for its decision. See Pa.R.A.P. 1925(a).



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      3. Does 42 Pa.C.S. § 9545(b)(1)(iii) apply?

      4. Has Appellant filed for relief within 60 days of learning new
      facts as 42 Pa.C.S. § 9545(b)(2) allows?

      5. Did Hopkins adopt a new retroactive watershed, procedural
      rule of constitutional law that changed the legal landscape,
      announced in Alleyne?

      6. Was Appellant denied his U.S. Constitutional Amendment
      rights to Due Process and Confrontation when the charging
      documents failed to notify him of a mandatory sentence?

      7. Does 18 Pa.C.S. § 2502(b) fail to provide a classification and
      grading of the offense as § 2505(c) does and all other criminal
      statutes are graded and classified as either a felony or
      misdemeanor 1, 2, or 3? And, is it unconstitutional for failing to
      meet the Due Process and Confrontation Clauses for failing to
      put Appellant on notice of the actual charges and punishment
      against him?

      8. Does 18 Pa.C.S. § 1102 fail to provide a classification and
      grading of § 2502(b) as all other criminal statutes are classified
      and graded [as] either [a] felony or misdemeanor 1, 2, or 3?
      And, is it unconstitutional for failing to meet the Due Process and
      Confrontation Clauses of the U.S. Constitution for failing to put
      Appellant on notice of the actual charges and punishment
      against him?

      9. Is 42 Pa.C.S. § 9711 unconstitutional for being recodified from
      18 P.S. § 1311 which was held unconstitutional by both the PA
      and U.S. Supreme Court’s [sic]? And, is it also unconstitutional
      for not allowing aggravating factors to be proven beyond a
      reasonable doubt nor mitigating factors, during trial?

      10. In the wake of Hopkins, [Commonwealth v.] Secreti[,
      134 A.3d 77 (Pa. Super. 2016)], Montgomery [v. Louisiana,
      136 S.Ct. 718 (2016)], and [Commonwealth v.] Burton[, 121
      A.3d 1063 (Pa. Super. 2015)]; is [Commonwealth] v. Watts,[
      23 A.3d 980 (Pa. 2011),] erroneous?

(Appellant’s Brief, at 8-9).



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   We begin by addressing the timeliness of Appellant’s instant PCRA

petition.

      Crucial to the determination of any PCRA appeal is the timeliness
      of the underlying petition.      Thus, we must first determine
      whether the instant PCRA petition was timely filed.            The
      timeliness requirement for PCRA petitions is mandatory and
      jurisdictional in nature, and the court may not ignore it in order
      to reach the merits of the petition. The question of whether a
      petition is timely raises a question of law. Where the petitioner
      raises questions of law, our standard of review is de novo and
      our scope of review plenary.

            A PCRA petition is timely if it is “filed within one year of the
      date the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §
      9545(b)(1). “[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.A. § 9545(b)(3). . . .

Commonwealth v. Brown, 141 A.3d 491, 499-500 (Pa. Super. 2016)

(case citations and some quotation marks omitted).

      In this case, Appellant’s judgment of sentence became final on May

23, 1995, when his time to file a petition for writ of certiorari with the United

States Supreme Court expired.       See U.S. Sup.Ct. R. 13; 42 Pa.C.S.A. §

9545(b)(3).   Because Appellant filed the instant petition on November 4,

2015, it is untimely on its face, and the PCRA court lacked jurisdiction to

review it unless he pleaded and proved one of the statutory exceptions to

the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:



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      (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.

Id.

      Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] 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.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).           In

addition, “it is the petitioner’s burden to allege and prove that one of the

timeliness exceptions applies.”   Commonwealth v. Robinson, 139 A.3d

178, 186 (Pa. 2016) (citation omitted).

      Here, Appellant concedes that his petition is patently untimely, and he

invokes all three exceptions to the PCRA’s time-bar based on his reading of

Alleyne and its Pennsylvania progeny. (See Appellant’s Brief, at 13, 16).

Appellant claims “Hopkins adopted a new retroactive procedural rule of



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constitutional law that changed the legal landscape[,]” and that “Hopkins

created new facts that previously did not exist in PA[.]”   (Id. at 28).    He

avers “[i]n Hopkins[, supra] our [Supreme Court] adopted the [United

States Supreme Court’s] Alleyne, [supra,] decision which created a

substantive procedural rule of constitutional law, retroactively applicable on

collateral review,” entitling him to relief for his illegal mandatory minimum

sentence.     (Id. at 13; see id. at 21-22, 24).         Although Appellant

acknowledges that Hopkins was issued on June 15, 2015, he explains that

he discovered the case on October 16, 2015, and filed his petition within

sixty days of that date, on November 4, 2015, rendering his petition timely.

(See id. at 13). We disagree.

      Appellant’s argument fails for several reasons.    First, the trial court

sentenced Appellant pursuant to 18 Pa.C.S.A. § 1102(b), which mandates

that “a person who has been convicted of murder of the second degree . . .

shall be sentenced to a term of life imprisonment.” 18 Pa.C.S.A. § 1102(b).

Thus, the “fact” that led to Appellant’s sentence of life imprisonment was his

jury conviction of second-degree murder. The trial court engaged in no fact-

finding at sentencing in order to determine the applicability of the life

sentence. Therefore, Alleyne is not applicable in the instant case.

      Moreover, a panel of this Court has recently stated, in the context of a

facially untimely PCRA petition that:

            Our Supreme Court decided Hopkins on June 15, 2015;
      thus, in order to invoke the newly-discovered fact exception of
      42 Pa.C.S.A. § 9545(b)(1)(ii)[,] Appellant needed to submit his

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     PCRA petition within sixty days thereof, not within sixty days of
     the date upon which he became aware of the decision. See 42
     Pa.C.S. § 9545(b)(2); Commonwealth v. Brandon, 51 A.3d
     231, 235 (Pa. Super. 2012) (providing that the sixty-day time
     period with respect to new decisional law begins to run upon the
     date of the underlying judicial decision). . . . [Further], the
     Pennsylvania Supreme Court has held that “subsequent
     decisional law does not amount to a new ‘fact’ under section
     9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23
     A.3d 980, 987 (Pa. 2011).

            Also, contrary to Appellant’s claim, the Hopkins decision
     did not announce a “new rule,” but rather simply assessed the
     validity of Section 6317 under Alleyne and concluded that
     particular mandatory minimum sentencing statute was
     unconstitutional. Furthermore, even if Hopkins had announced
     a new rule, neither our Supreme Court nor the United States
     Supreme Court has held that Hopkins applies retroactively to
     post-conviction petitioners such as Appellant. Consequently, to
     the extent Appellant attempts to rely on Hopkins, he has not
     satisfied the timeliness exception of Section 9545(b)(1).

           Finally, assuming that Alleyne announced 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, and 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 the
     Pennsylvania Supreme Court specifically holds it to be
     retroactively applicable to those cases. Commonwealth v.
     Phillips, 31 A.3d 317, 320 (Pa. Super. 2011), appeal denied, 42
     A.3d 1059 (Pa. 2012). To the contrary, our Supreme Court
     recently filed an opinion in Commonwealth v. Washington,
     142 A.3d 810, 811, 820 (Pa. 2016) wherein it addressed the
     retroactive effect of Alleyne and held “that Alleyne does not
     apply retroactively to cases pending on collateral review. . . . ”
     Id. at 820.

Commonwealth v. Whitehawk, 2016 WL 4473779, at *3-4 (Pa. Super.

filed Aug. 24, 2016) (some citation formatting provided).




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     Based on the foregoing, we conclude that Appellant has not met his

burden of proving his untimely petition fits within one of the exceptions to

the PCRA’s time-bar. See Brown, supra at 499-500; Robinson, supra at

186. Accordingly, we affirm the order of the PCRA court.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2016




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