J-S85027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSEPH DURKIN                              :
                                               :
                      Appellant                :   No. 2017 EDA 2016

                   Appeal from the PCRA Order April 25, 2016
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0007257-2007


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

MEMORANDUM BY RANSOM, J.:                             FILED JANUARY 09, 2017

       Appellant, Joseph Durkin, appeals pro se from the order entered April

25, 2016, denying as untimely his third petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       In March 2008, following a bench trial, Appellant was sentenced to an

aggregate term of fifteen to forty years’ incarceration for one count of

Corrupt Organizations, three counts of Possession of a Controlled Substance,

two counts of Dealing with Proceeds of Unlawful Activities, two counts of

Criminal Attempt to Possess a Controlled Substance with Intent to

Manufacture or Deliver, and one count of criminal conspiracy.1         Appellant

was further ordered to pay mandatory fines of $150,000. In March 2009,
____________________________________________


1
  Respectively, 18 Pa.C.S.A. § 911(b)(3); 35 P.S. § 780-113(a)(30); 18
Pa.C.S.A. § 5111(a)(1); 18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 903.
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this Court affirmed Appellant’s judgment of sentence. Commonwealth v.

Durkin, 974 A.2d 1180 (Pa. Super. 2009) (unpublished memorandum). In

February 2010, the Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal.      Commonwealth v. Durkin, 989 A.2d 7 (Pa.

2010).

      In July 2010, Appellant filed his first petition for collateral relief, which

was denied, and this Court affirmed. Commonwealth v. Durkin, 100 A.3d

302 (Pa. Super. 2014) (unpublished memorandum).                Appellant filed a

second PCRA petition in June 2014, which was dismissed as untimely. This

Court affirmed, and appellant did not file a petition for allowance of appeal

with the Pennsylvania Supreme Court.          Commonwealth v. Durkin, 125

A.3d 440 (Pa. Super. 2015) (unpublished memorandum).

      In February 2016, Appellant pro se filed a Petition for Writ of Habeas

Corpus petition, essentially his third PCRA petition.       In March 2016, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition without a hearing.        The PCRA court did not direct

Appellant to file a Pa.R.A.P. 1925(b) statement but issued a memorandum

opinion explaining its decision.

      Appellant raises the following issue:

      (1)   Does the creation or manifest result of four (4) separate
            classes of offenders under the Commonwealth’s mandatory
            minimum sentencing statutes for identically situated
            defendants violate the Equal Protection clause of Article 1
            section 26 of the Pennsylvania Constitution and the
            Fourteenth Amendment to the United States Constitution?


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Appellant’s Brief at 3.

      The standard of review regarding an order denying a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of the record and is free of legal error.        Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).          We afford the court’s factual

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

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Although Appellant filed a petition seeking habeas corpus relief, it is

proper to review under the PCRA. The PCRA is the “sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies for the same purpose…, including habeas corpus.”          42 Pa.C.S. §

9542. Both the PCRA and the state habeas corpus statute contemplate that

the PCRA subsumes the writ of habeas corpus in circumstances where the

PCRA provides a remedy for the claim. Commonwealth v. Peterkin, 722

A.2d 638, 640 (Pa. 1998).

      Here, Appellant challenges the legality of his sentence.     Because the

PCRA provides a remedy for Appellant’s claims, the lower court was correct

in treating the petition as a request for relief under the PCRA.

      Therefore, we must next address the PCRA timeliness requirements.

The timeliness of Appellant’s petition implicates jurisdiction and may not be

altered or disregarded in order to address the merits of his claim.

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

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PCRA, all petitions seeking collateral relief must be filed within one year of

the date the judgment of sentence becomes final. Id.

      Here, Appellant’s judgement of sentence became final on May 6, 2010,

when the 90 day period for filing for writ of certiorari with the United States

Supreme Court expired.     See 42 Pa.C.S. §9545(b)(3).      The instant PCRA

was filed on February 11, 2016, more than six years after the judgment of

sentence became final. The Appellant’s petition is patently untimely, and for

this court to have jurisdiction to review the merits of Appellant’s claims, he

must prove the applicability of one of the exceptions to the timeliness

requirement.

      There are three statutory exceptions:

      (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). Appellant has the burden of proving an exception

to the time bar. Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa.

2008).    In addition, a petition seeking relief pursuant to a statutory

exception must adhere to the additional requirement of filing the claim


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within 60 days of the date the claim could have been first presented.      42

Pa.C.S. § 9545(b)(2).

      Appellant asserts that he is entitled to relief because Alleyne creates

new classes of offenders who are identically situated but treated differently,

thus violating the Equal Protection Clause of the United States Constitution

and illegally sentencing Appellant. This claim is waived, as Appellant failed

to raise it in his PCRA petition. See Commonwealth v. Wallace, 724 A.2d

916, 921 n.5 (1999) (issues not raised in PCRA petition cannot be

considered on appeal).

      Essentially, Appellant challenges the legality of his sentence, claiming

that the mandatory sentences and fines are unlawful. See Petition for Writ

of Habeas Corpus, 2/11/16, at 1-2 (citing in support Alleyne v. United

States, 135 S. Ct. 1251 (2013). Appellant asserts, that Alleyne should be

applied retroactively thus entitling him to collateral relief. Id. at 5.

      The United States Supreme Court was clear in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), holding that state collateral review courts

must give retroactive effect to a new, substantive rule of constitutional law.

Id. at 729. The Pennsylvania Supreme Court has determined that the rule

announced in Alleyne was neither a substantive nor a “watershed”

procedural rule and, therefore, did not apply retroactively to cases pending

on collateral review. Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016), see also Commonwealth v. Riggle, 119 A.3d 1058, 1064-67

(Pa. Super. 2015).

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     Appellant’s petition is untimely, and he has not satisfied a timeliness

exception to the requirements of the PCRA. Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant’s claim and

properly dismissed his petition. See Ragan, 932 A.2d at 1170.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




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