J-S38038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ERWIN FERGUSON, JR.

                            Appellant                No. 3257 EDA 2015


               Appeal from the PCRA Order September 30, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000340-2001


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED JULY 06, 2016

        Appellant Erwin Ferguson, Jr. appeals from the order of the Court of

Common Pleas of Monroe County dismissing his petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

        On March 5, 2002, Appellant entered a plea of nolo contendere to

criminal homicide.1 On May 30, 2002, the trial court sentenced Appellant to

15 to 30 years’ imprisonment. Appellant did not file a notice of appeal.

        On June 19, 2003, Appellant filed his first PCRA petition.   The PCRA

court denied the petition, and this Court affirmed.    The Supreme Court of

Pennsylvania denied Appellant’s petition for allowance of appeal.



____________________________________________


1
    18 Pa.C.S. § 2501.
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       On January 22, 2007, Appellant filed his second PCRA petition.   The

PCRA court dismissed the petition, and this Court affirmed.

       On August 12, 2015, Appellant filed the instant PCRA petition, his

third. On September 1, 2015,2 the PCRA court issued notice of its intent to

dismiss the PCRA petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907. On September 21, 2015,3 Appellant filed a “Pro Se

Response to Notice of Disposition Without Hearing.”      On September 30,

2015, the PCRA court issued an order denying the PCRA petition.          On

October 22, 2015, Appellant filed a notice of appeal.

       On October 27, 2015, the PCRA court issued an order requiring

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).     Appellant

did not file a 1925(b) statement. On December 15, 2015, the PCRA court

issued its 1925(a) statement.




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2
 The notice of intent issued by the PCRA court was dated August 31, 2015,
but stamped as docketed on September 1, 2015.
3
  The postage on the envelope in which Appellant mailed the response was
dated September 21, 2015. See Commonwealth v. Chambers, 35 A.3d
34, 38 (Pa.Super.2011) (“in the interest of fairness, the prisoner mailbox
rule provides that a pro se prisoner’s document is deemed filed on the date
he delivers it to prison authorities for mailing”).




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        Appellant claims the PCRA court erred by dismissing his PCRA petition

as untimely.4        He    claims he      filed   his   petition within 60   days of

Commonwealth v. Hopkins,5 which, he argues, applies to the facts of his

case.

        Appellant failed to file a 1925(b) statement and, therefore, has waived

his claims raised on appeal.            See Pa.R.A.P. 1925(b)(vii) (“Issues not

included in the [1925(b)] Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”).

        Moreover, even if Appellant had preserved his issue, he is not entitled

to relief because his petition is untimely. Our standard of review from the

denial of post-conviction relief “is limited to examining whether the PCRA

court’s determination is supported by the evidence of record and whether it

is free of legal error.”      Commonwealth v. Ousley, 21 A.3d 1238, 1242

(Pa.Super.2011) (citing Commonwealth v. Morales, 701 A.2d 516, 520

(Pa.1997)).

        Before addressing the merits of a PCRA petition, we first determine

whether the petition is timely. The PCRA provides that a petition, “including

a second or subsequent petition, shall be filed within one year of the date


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4
  Appellant’s brief does not contain a statement of questions presented as
required by Pennsylvania Rule of Appellate Procedure 2116; however, his
issue is clear from the remainder of his brief.
5
    117 A.3d 247 (Pa.2015).



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the   judgment      becomes   final.”   42    Pa.C.S.   §   9545(b)(1);   accord

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010);

Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003).                   A

judgment is 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. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.             To

establish that an exception to the PCRA time-bar applies, a petitioner must

allege and prove:

            (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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).        When invoking an exception to the PCRA

time-bar, the petition must “be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Appellant’s judgment of conviction became final on July 1, 2002, when

the time to seek review by this Court expired.6 He had one year from that

date, i.e., July 1, 2003, to file a timely PCRA petition. Therefore, his current

petition, filed on August 12, 2015, is facially untimely.

       Appellant maintains he has established the newly discovered fact

exception to the PCRA time bar, because the Pennsylvania Supreme Court

did not issue a decision in Hopkins until June 15, 2015.7        However, case
____________________________________________


6
   Appellant had 30 days from entry of the judgment of sentence on May 30,
2002 to file a direct appeal. Pa.R.A.P. 903(a). Thirty days from May 30,
2002, was Saturday, June 29, 2002. Therefore, Appellant had until Monday,
July 1, 2002, to file a direct appeal. 1 Pa.C.S. § 1908 (When last day of
time period “fall[s] on Saturday or Sunday, . . . such day shall be omitted
from the computation”); Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the
Pennsylvania Consolidated Statutes (rules of construction) so far as not
inconsistent with any express provision of these rules, shall be applicable to
the interpretation of these rules . . . .”).
7
   In Hopkins, the Supreme Court of Pennsylvania found that pursuant
Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151, 2158, 186 L.Ed.2d
314 (2013), the mandatory minimum sentencing scheme set forth in 18
Pa.C.S. § 6317 (“Drug-free school zones”) was unconstitutional in its
entirety. See Hopkins, 117 A.3d at 262. The appellant in Hopkins had
filed a direct appeal, as his sentence was not final at the time the Supreme
Court of the United States issued its decision in Alleyne.

Appellant was not sentenced pursuant to any mandatory minimum. See
Pennsylvania Commission on Sentencing Automatic Guideline Form. Rather,
Appellant argues that the Court relied on facts contained in his pre-sentence
report (“PSI”) report that were not submitted to the jury. Appellant’s Brief
(Footnote Continued Next Page)


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decisions are not facts for purposes of 42 Pa.C.S. § 9545(b)(1)(ii).8

Commonwealth            v.   Cintora,     69     A.3d   759,   763   (Pa.Super.2013).

Accordingly, Appellant has failed to allege and prove any exception to the

PCRA time bar, and the PCRA court properly dismissed his third PCRA

petition as untimely.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




                       _______________________
(Footnote Continued)

at 2-3. Hopkins and Alleyne bar the imposition of mandatory minimum
sentences based on facts that were not found by a jury. They do not
preclude the use of a PSI report to determine an appropriate sentence.
8
   Further, Appellant’s PCRA petition does not qualify for the new
constitutional right exception to the PCRA time bar. Neither the United
States Supreme Court nor the Pennsylvania Supreme Court has determined
that Alleyne and Hopkins apply retroactively to those whose sentences
were final prior to their issuance. Commonwealth v. Miller, 102 A.3d 988,
995 (Pa.Super.2014); cf. Hopkins, 117 A.3d at 262. Therefore, Appellant’s
PCRA petition does not qualify for the new constitutional right exception to
the PCRA time bar. Miller, 102 A.3d at 905.



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