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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

ROGER LEON BARLOW

                            Appellant                     No. 328 EDA 2016


            Appeal from the PCRA Order Entered December 17, 2015
               In the Court of Common Pleas of Chester County
               Criminal Division at No: CP-15-CR-0001166-2009


BEFORE: STABILE, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                          FILED NOVEMBER 15, 2016

        Appellant, Roger Leon Barlow, appeals pro se from the December 17,

2015 order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        On September 17, 2010, Appellant pled guilty to eight counts of arson

and one count of criminal mischief.1           On that same date, the trial court

imposed an aggregate 12½ to 25 years or incarceration followed by ten

years of probation. Appellant did not file a direct appeal.

        Appellant filed the instant PCRA petition on July 21, 2015, well over

three years after his judgment of sentence became final.          The PCRA court
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3301 and 3304, respectively.
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appointed counsel on September 14, 2015. On October 22, 2015, counsel

filed a no merit letter and petition to withdraw pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 479

A.2d 568 (Pa. Super. 1984) (en banc). On November 12, 2015, the PCRA

court filed notice of its intent to dismiss the petition without a hearing

pursuant to Pa.R.Crim.P. 920. Appellant responded on December 1, 2015.

On December 17, 2015, the PCRA court entered an order dismissing

Appellant’s petition and permitting counsel to withdraw. This timely appeal

followed.

      The PCRA requires any petition thereunder to be filed within one year

of the date on which his judgment of sentence becomes final. 42 Pa.C.S.A.

§ 9545(b)(1); Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).      If, as is presently the case, the petition is facially untimely, the

petitioner must plead and prove the applicability of one of the three

statutory exceptions to the one-year time bar. Id. Failure to do so deprives

the PCRA court of jurisdiction. This is true even if the petition challenges the

legality of the petitioner’s sentence.    Commonwealth v. Fahy, 737 A.2d

214, 223 (Pa. 1999).

      One exception to the PCRA’s one-year time bar is the recognition, by

the United States Supreme Court, of a new constitutional right that is held

by that Court to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(iii). To this

end, Appellant argues his sentence is illegal pursuant to Alleyne v. United


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States, 133 S. Ct. 2151 (2013) and Commonwealth v. Hopkins, 117 A.3d

247 (Pa. 2015).

       In Alleyne, the United States Supreme Court held that any fact, other

than a prior conviction, triggering a mandatory minimum sentence must be

found beyond a reasonable doubt by a jury. Alleyne, 133 S. Ct. at 2163-

64.    In Hopkins, the Pennsylvania Supreme Court relied on Alleyne to

strike down the Drug Free School Zones Act, 18 Pa.C.S.A. § 6317. Section

6317    imposed      mandatory   minimum   sentences   for   certain   controlled

substance offenses that occurred within a specified distance of a school or

playground. 18 Pa.C.S.A. § 6317.

       As noted above, Appellant did not file a direct appeal and his judgment

of sentence became final in October of 2010.      The Pennsylvania Supreme

Court has held that Alleyne does not apply retroactively to cases pending

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

(Pa. 2016).   We have held that Alleyne applies only to cases pending on

direct appeal as of June 17, 2013, the date the United States Supreme Court

handed down the opinion in Alleyne.        Commonwealth v. Newman, 99

A.3d 86, 90 (Pa. Super. 2014).        Alleyne therefore does not apply to

Appellant’s case, and he cannot rely on it to meet the requirements of

§ 9545(b)(1)(iii).

       Appellant argues that his petition is timely under Hopkins because he

filed it within 60 days of that decision, in accordance with § 9545(b)(2) of


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the PCRA.   Hopkins does not apply because Appellant was not sentenced

under § 6317.     Indeed, the record of the sentencing proceeding does not

confirm   that   Appellant   received   any   mandatory   minimum    sentence.

Appellant therefore did not salvage the timeliness of his petition by filing it

within 60 days of the Hopkins decision.

      In summary, Appellant’s PCRA petition is facially untimely and he has

failed to plead and prove the applicability of any timeliness exception. We

therefore affirm the PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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