J-S49040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

THOMAS EDWARD GROVE,

                            Appellant                  No. 157 EDA 2016


               Appeal from the PCRA Order November 30, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002493-2010
                            CP-15-CR-0003188-2010

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED June 16, 2016

        Appellant, Thomas Edward Grove, appeals pro se from the order

entered in the Court of Common Pleas of Chester County dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-46. We affirm.

        The relevant facts and procedural history are as follows:   Appellant

pled guilty to possession with the intent to deliver a controlled substance

and possession of a firearm prohibited.1       On September 27, 2011, he was

sentenced to an aggregate of eleven years to twenty-two years in prison.

Appellant filed neither a timely post-sentence motion nor a direct appeal.

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1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 6105(a)(1), respectively.



*Former Justice specially assigned to the Superior Court.
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       On May 29, 2015, Appellant filed a pro se PCRA petition,2 and the trial

court appointed counsel to represent Appellant. On August 5, 2015, counsel

filed a petition seeking to withdraw his representation, and thereafter,

Appellant filed an amended pro se PCRA petition.            By order entered on

October 9, 2015, the PCRA court provided notice of its intent to dismiss

Appellant’s PCRA petition, to which Appellant filed a pro se response.      On

November 30, 2015, the PCRA court dismissed Appellant’s PCRA petition and

granted counsel’s petition to withdraw his representation. This timely pro se

appeal followed,3 and all Pa.R.A.P. 1925 requirements have been met.

       “Our standard of review of the denial of PCRA relief is clear; we are

limited to determining whether the PCRA court’s findings are supported by

the record and without legal error.”           Commonwealth v. Wojtaszek, 951

A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).

       Preliminarily, we must determine whether Appellant’s PCRA petition

was timely filed.         See Commonwealth v. Hutchins, 760 A.2d 50
____________________________________________


2
  Although Appellant’s pro se PCRA petition was docketed on June 1, 2015,
the record suggests Appellant handed it to prison officials on May 29, 2015.
Thus, under the prisoner mailbox rule, we shall deem Appellant’s PCRA
petition to have been filed on May 29, 2015. See Commonwealth v.
Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing prisoner mailbox
rule).
3
   Although Appellant’s pro se notice of appeal was docketed on January 4,
2016, the prison envelope in which Appellant’s notice of appeal was mailed
bears a time stamp of December 23, 2015. Accordingly, pursuant to the
prisoner mailbox rule, we deem Appellant’s notice of appeal to have been
filed on December 23, 2015. See Patterson, supra.



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(Pa.Super. 2000).         Pennsylvania law makes it clear that no court has

jurisdiction to    hear    an untimely   PCRA petition.   Commonwealth v.

Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). The most recent

amendments to the PCRA, effective January 19, 1996, provide that a PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment becomes final.        42 Pa.C.S.A. §

9545(b)(1). A judgment is deemed 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 the time for

seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.    42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.


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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

         “A petition invoking one of these exceptions must be filed within sixty

days      of   the   date    the    claim     could    first   have   been   presented.”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa.Super. 2014) (citation

omitted). “We emphasize that it is the petitioner who bears the burden to

allege     and   prove      that   one   of    the    timeliness   exceptions   applies.”

Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)

(citations omitted).

         Instantly, Appellant was sentenced on September 27, 2011, and his

judgment of sentence became final thirty days later on October 27, 2011,

when the time within which to file an appeal to this Court expired. See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant, thus, had until October

27, 2012, to file a timely PCRA petition; however, Appellant filed the instant

PCRA petition on May 29, 2015, and therefore, it is patently untimely.

         This does not end our inquiry, however, as Appellant attempts to

invoke the timeless exception of 42 Pa.C.S.A. § 9545(b)(1)(iii) relating to a

new constitutional right that applies retroactively. Specifically, he avers his

sentence is illegal under Alleyne v. United States, ___ U.S. ___, 133 S.Ct.

2151 (2013). Initially, inasmuch as Alleyne was decided on June 17, 2013,

and Appellant did not file his petition until May 29, 2015, we conclude that

Appellant has not pled or proven that he presented his claim within sixty

days of the date the claim could first have been presented. Moreover, as the


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PCRA court noted, this Court has held that Alleyne does not apply

retroactively to petitioners such as Appellant.4   Commonwealth v. Ruiz,

131 A.3d 54 (Pa.Super. 2015); Commonwealth v. Riggle, 119 A.3d 1058

(Pa.Super. 2015).

       For all of the foregoing reasons, we affirm the PCRA court’s dismissal

of Appellant’s PCRA petition.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




____________________________________________


4
  Additionally, to the extent Appellant attempts to present a timeliness
exception under Section 9545(b)(1)(iii) on the basis of Commonwealth v.
Hopkins, ___ Pa. ___, 117 A.3d 247 (2015), we note Hopkins did not
announce a “new rule;” but rather, it simply assessed the validity of 18
Pa.C.S.A. § 6317 (“Drug-free school zones”) under Alleyne, and concluded
that particular mandatory minimum sentencing statute is unconstitutional.
Moreover, neither our Supreme Court nor this Court has held that Hopkins
applies retroactively to collateral petitioners such as Appellant.



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