J-S37004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JAMES JOHN INGRAHAM

                         Appellant                    No. 1919 MDA 2016


          Appeal from the PCRA Order entered November 3, 2016
               In the Court of Common Pleas of Berks County
  Criminal Division at Nos: CP-06-CR-0002228-2013, CP-06-CR-0002516-
                       2009, CP-06-CR-0002226-2013


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 21, 2017

      Appellant, James John Ingraham, appeals from the November 3, 2016

order entered in the Court of Common Pleas of Berks County, dismissing his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

      The underlying factual and procedural background is undisputed.

Appellant was convicted of multiple crimes, as a result of raping several

young girls, including his biological daughter. Following the entry of a plea

agreement, Appellant was sentenced as follows: (1) Docket number 2516-

2009: On October 30, 2009, Appellant was sentenced to 8 to 16 years’

imprisonment, followed by 15 years’ probation; (2) Docket number 2226-

2013: On June 10, 2013, Appellant was sentenced to 8 to 16 years’

imprisonment, followed by 15 years’ probation, to be served consecutively to
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the sentence imposed at docket number 2516-2009; Docket number 2228-

2013:    On June 10, 2013, Appellant was sentenced to 8 to 16 years’

imprisonment, followed by 15 years’ probation, to be served concurrently

with the sentence imposed at docket number 2226-2013. Appellant did not

appeal any of his sentences.

      On June 1, 2015, Appellant filed the instant PCRA petition, his first.

After appointing counsel, the PCRA court granted counsel’s petition for

withdrawal, and, on November 3, 2016, dismissed Appellant’s first PCRA

petition as untimely. This appeal followed.

      As discussed below, Appellant does not establish the timeliness of the

instant petition. Appellant merely argues the merits of his petition. For the

reasons stated below, we conclude Appellant’s PCRA petition is untimely and

therefore he is not entitled to a review of the merits of his petition.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                       All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.     42 Pa.C.S.A. § 9545(b)(1).          “The PCRA’s time

restrictions are jurisdictional in nature.      Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

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address the substantive claims.”          Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).         As timeliness is separate and distinct from the

merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.        See Commonwealth v. Stokes, 959 A.2d

306, 310       (Pa.   2008)    (consideration    of   Brady   claim   separate   from

consideration of its timeliness).        The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the

legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“Although legality of sentence is always subject to review within

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

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999)).

       As noted, Appellant does not specifically address the timeliness of the

underlying PCRA petition. He seems to imply that because he is challenging

the legality of his sentence under Alleyne,1 the challenge is not subject to

time restrictions. Alleyne, however, is of no help to Appellant. It is well-

established that Alleyne does not apply retroactively to cases, like the

instant one, pending on collateral review.               See Commonwealth v.


____________________________________________


1
 Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that a jury
must find beyond a reasonable doubt any fact increasing a mandatory
minimum sentence).



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Washington, 142 A.3d 810, 819-20 (Pa. 2016). Additionally, as the PCRA

court noted, Alleyne is not applicable here because Appellant was not

sentenced to mandatory minimum sentences. Alleyne, supra. Finally, to

insure that the PCRA timeliness requirements were met, Appellant should

have filed the instant petition within 60 days of Alleyne. See Pa.C.S.A. §

9545(b)(2).     He did not.2     Accordingly, because Alleyne does not provide

any support for Appellant’s timeliness argument, we must conclude that the

PCRA court correctly found the instant petition untimely.3        Because the

instant petition is untimely, we cannot review the merits of Appellant’s

contentions. See Chester, supra (courts have no jurisdiction to review the

merits of an untimely PCRA petition); Fahy, 737 A.2d at 224 (same).




____________________________________________


2
 Alleyne was decided on June 17, 2013. Appellant filed the instant PCRA
petition on June 1, 2015.
3
  Appellant’s conviction at Docket number 2516-2009 became final at the
expiration of the time for filing a direct appeal, i.e., November 30, 2009.
Accordingly, Appellant had one year from that date to file a timely PCRA
petition (i.e., November 30, 2010).           Appellant’s convictions at Docket
numbers 2226-2013 and 2228-2013 became final at the expiration of the
time for filing a direct appeal, i.e., July 10, 2013. Accordingly, Appellant had
one year from that date to file a timely PCRA petition (i.e., July 10, 2014).
Appellant filed the underlying PCRA on June 1, 2015. The petition is clearly
facially untimely. Additionally, as explained, Appellant failed to prove any of
the exceptions apply. The instant PCRA petition is therefore untimely.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




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