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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                            Appellant               No. 1961 WDA 2015


                  Appeal from the PCRA Order October 30, 2015
               In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0006538-1990 CP-02-CR-0006540-
            1990 CP-02-CR-0014485-1990 CP-02-CR-0016210-1990


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED AUGUST 10, 2016

       John Dantzler appeals from the order, entered in the Court of Common

Pleas of Allegheny County, dismissing his third petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 After careful

review, we affirm.

       On December 20, 1990, Dantzler entered a guilty plea to various drug

offenses. On May 15, 1991, the court sentenced Dantzler to an aggregate

term of 16 to 32 years’ incarceration.         A mandatory 3-year minimum

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1
 The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal
error. The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.    Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
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sentence      pursuant      to     18    Pa.C.S.   §    7508    (drug    trafficking

sentencing/penalties) was applied to his sentence. Dantzler filed a motion to

withdraw his guilty plea averring that the plea was not knowing, voluntary or

intelligent. After an evidentiary hearing, the court denied his motion.

       Dantzler filed a timely direct appeal; our Court affirmed his judgment

of sentence on March 6, 1992.            Dantzler filed a petition for allowance of

appeal to our Supreme Court that was denied on December 8, 1992.

Dantzler filed his first PCRA petition on May 25, 1994. On March 2, 1995,

the court dismissed Dantzler’s petition. On January 16, 1997, Dantzler filed

his second PCRA petition which the court dismissed on April 9, 1997, for

failure to state a claim upon which relief could be granted. Dantzler filed his

third PCRA petition on April 16, 2015, alleging that he is eligible for relief

due to a constitutional violation “that so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” PCRA Petition, 4/16/15, at ¶ 4(I). Specifically, Dantzler alleged that

his sentence is illegal as a result of the court’s application of an

unconstitutional mandatory minimum statute.            On October 30, 2015, the

court dismissed Dantzler’s petition. This timely appeal followed.

       On appeal, Dantzler presents the following issue for our review:          As

the Pennsylvania Superior and Supreme Courts have found section 97122 to

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2
   See 42 Pa.C.S. § 9712 (sentences for offenses committed with firearms).
Although Dantzler cites section 9712 in his appellate brief, he was actually
(Footnote Continued Next Page)


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be facially unconstitutional in its entirety, is the Appellant entitled to relief

from his illegal sentence as the statute has been unconstitutional from the

date of its passage and ineffective for any purpose? Appellant’s Brief, at 7.

      Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment becomes

final. See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn,

703 A.2d 1054 (Pa. Super. 1997).                  Instantly, Dantzler’s judgment of

sentence became final, for purposes of the PCRA, on March 8, 1993, when

the time expired for him to file a petition for writ of certiorari with the United

States Supreme Court. See Sup. Ct. R. 13. Thus, in order for Dantzler’s

petition to be considered timely filed, it must have been filed by March 8,

2004. Dantzler, however, did not file his third petition until April 16, 2015 –

more than eleven years late under the PCRA.               See 42 Pa.C.S.A. § 9545

(b)(3). Therefore, Dantzler’s petition is facially untimely.

      However, when a petition alleges, and a petitioner proves that an

exception to the time for filing the petition is met, the petition will be

considered timely.        These exceptions include interference by government

officials in the presentation of the claim, after-discovered facts or evidence,

and an after-recognized constitutional right.             See Commonwealth v.


                       _______________________
(Footnote Continued)

sentenced under section 7508’s mandatory minimum statute, which is cited
in his Pa.R.A.P. 1925(b) statement of error complained of on appeal as well
as argued throughout his brief and amended petition.



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Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). A PCRA petition invoking

one of these exceptions must “be filed within 60 days of the date the claims

could have been presented.” Id; see also 42 Pa.C.S.A. § 9545(b)(2). The

timeliness requirements of the PCRA are jurisdictional in nature and,

accordingly, a PCRA court cannot hear untimely petitions. Commonwealth

v. Robinson, 837 A.2d 1157 (Pa. 2003).

       Dantzler does not allege or prove any section 9545(b)(1) exception to

the PCRA time bar. Rather he alleges his sentence is illegal based on the

holding of Alleyne v. United States, 133 S. Ct. 2151 (2013),3 and the

application of an unconstitutional mandatory minimum statute, section

7508(a)(3)(ii).      Dantzler is correct that the mandatory minimum statute

under which he was sentenced has been held unconstitutional.                See

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014). However, in

order for this Court to review a legality of sentence claim, there must be a

basis for our jurisdiction to engage in such review. See Commonwealth v.

Borovichka, 2011 PA Super 88, 18 A.3d 1242, 1254 (Pa. Super. 2011)

(stating, “[a] challenge to the legality of a sentence . . . may be entertained

as long as the reviewing court has jurisdiction[.]”) (citation omitted)).    As

this Court recently noted, “[t]hough not technically waivable, a legality [of


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3
  In Alleyne, the Supreme Court held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and must be found
beyond a reasonable doubt. Id. 133 S. Ct. at 2163.



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sentence] claim may nevertheless be lost should it be raised . . .       in an

untimely PCRA petition for which no time-bar exception applies, thus

depriving the court of jurisdiction over the claim.”      Commonwealth v.

Seskey, 86 A.3d 237, 242 (Pa. Super. 2014).4

       Thus, the trial court did not err in dismissing Dantzler’s untimely PCRA

petition. Johnston, supra.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2016




____________________________________________


4
  We also note that Alleyne does not invalidate an unconstitutional
mandatory minimum sentence when presented in an untimely PCRA petition.
See Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014).



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