J-S05025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NORMAN PELKEY,

                            Appellant                No. 881 MDA 2015


                   Appeal from the PCRA Order April 22, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003650-2006


BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 28, 2016

       Appellant, Norman Pelkey, appeals pro se from the order denying his

fourth petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the history of this case as follows:

       (Appellant) was charged with Rape by Forcible Compulsion,
       Sexual Assault, Indecent Assault without Consent of Other,
       Indecent Assault by Forcible Compulsion, Indecent Assault –
       Person Less than 13, Indecent Exposure, Corruption of Minors,
       and Rape of a Child.

             Petitioner pled guilty before the [trial court] on September
       12, 2007 to Rape by Forcible Compulsion, Sexual Assault,
       Indecent Assault without Consent of Other, Indecent Assault by
       Forcible Compulsion, Indecent Assault – Person Less than 13,
       Indecent Exposure, and Corruption of Minors. The charge of
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*
    Retired Senior Judge assigned to the Superior Court.
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     Rape of a Child was withdrawn. Petitioner was evaluated by the
     Sexual Offender Assessment Board in accordance with Megan’s
     Law, and sentenced thereafter on December 6, 2007 to an
     aggregate term of incarceration of 5 to 10 years.

           On December 10, 2008 Petitioner filed a pro se check-the-
     box motion for Post Conviction Collateral Relief, and was
     appointed . . . . PCRA counsel[,] Osmer Deming, Esquire.
     Attorney Deming moved for a court order applying 555 days of
     credit time to Petitioner’s sentence. The motion was granted on
     February 5, 2009: the requested credit time was applied and an
     amended sentencing order was filed. Because the relief sought
     in the PCRA Motion (the 555 days of credit time) had been
     granted, the PCRA was deemed moot and Attorney Deming was
     permitted to withdraw from the case.

            On March 10, 2011, Petitioner filed a second, pro se check-
     the-box form motion for Post Conviction Collateral Relief. [The
     PCRA court] appointed Lara Glenn Hoffert, Esquire as PCRA
     Counsel to represent Petitioner in the disposition of this PCRA
     petition.   PCRA Counsel reviewed the entire record and
     concluded that the petition was facially untimely and that there
     were no applicable exceptions to the timeliness requirement.
     Accordingly, PCRA counsel filed a “No Merit” Letter pursuant to
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and
     Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). [The PCRA
     court] reviewed the record and likewise concluded that the
     petition was untimely.

            Rather than appealing the denial of the dismissal, on
     July 9, 2012, Petitioner filed a third pro se PCRA petition. This
     third PCRA petition was facially untimely, and Petitioner failed to
     demonstrate that any of the statutory exceptions to the one year
     filing deadline applied. Accordingly, on August 15, 2012 [the
     PCRA court] dismissed Petitioner’s third PCRA petition.
     Petitioner appealed the dismissal.       On April 12, 2013, the
     Superior Court ruled that we properly dismissed Petitioner’s third
     [petition] as untimely and affirmed the dismissal. Thereafter,
     Petitioner’s [Petition] for Allowance of Appeal to the
     Pennsylvania Supreme Court was denied.

            On January 9, 2014 Petitioner filed his fourth pro se PCRA
     petition . . . , which was also dismissed as untimely.


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Trial Court Opinion, 7/13/15, at 1-2 (footnotes omitted).

      Appellant timely appealed. Appellant was directed to file a Pa.R.A.P.

1925(b) statement.        Instead, Appellant filed a “Notice of Record to Lower

Courts To Berks County Court House to Over Turn My Case,” dated June 16,

2015. The PCRA court treated this pleading as Appellant’s Pa.R.A.P. 1925(b)

statement and addressed the issues Appellant raised therein in the court’s

opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant presents the following issues for our review, which we

reproduce verbatim:

      I.)   Trial counsel was ineffective for failing to produce
      witnesses and for giving faulty legal advice that witnesses would
      not be any help.

      II.) Trial counsel failed to produce discovery at eve of trial and
      did not take time to investigate the case.

      III.) Appellant was not permitted to be in the Courtroom at trial
      when the Victim was present and was unable to have her
      properly questioned.

      IV.) Appellant’s right to a jury trial and a determination of guilt
      beyond a reasonable doubt by that jury, guaranteed by Article I
      Section 9 of the PA Constitution, and the 6th Amendment to U.S.
      Constitution, had been violated, the Appellant was sentenced to
      a mandatory minimum sentence, the mandatory minimum
      statute allows the trial judge (not a jury) to determine by the
      perponderance of the evidence if the statute is applicable, the
      sentence is unconstitutional, pursuant to Alleyne, Apprendi and
      Newman.

Appellant’s Brief at 7.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA


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court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

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

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000)). A judgment of sentence “becomes

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).

      However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),




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and (iii), is met.1 A petition invoking one of these exceptions must be filed

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

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

       Our review of the record reflects that the PCRA court re-sentenced

Appellant on February 5, 2009, after his first PCRA petition was granted, and

Appellant was credited for time served. Appellant did not file a direct appeal

from that decision.




____________________________________________


1
    The exceptions to the timeliness requirement are:

       (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)(i), (ii), and (iii).




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       Accordingly, Appellant’s judgment of sentence became final on

March 9, 2009,2 thirty days after imposition of Appellant’s re-sentencing on

February 5, 2009, when the time allowed for filing a direct appeal expired.

42   Pa.C.S.     §   9545(b)(3);      Pa.R.A.P.   903;   Pa.R.Crim.P.   720(A)(2);

Commonwealth v. Green, 862 A.2d 613, 618-619 (Pa. Super. 2004).

Therefore, Appellant had to file this PCRA petition by March 9, 2010, in order

for it to be timely.      Appellant did not file the instant PCRA petition, his

fourth, until January 9, 2014.          Thus, Appellant’s instant PCRA petition is

patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2).

       In this case, Appellant appears to be invoking the time-bar exception

under section 9545(b)(1)(iii).         Appellant maintains that “his sentence is

illegal and needs to be corrected pursuant to Apprendi, Alleyne and
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2
   We note that because March 7, 2009, fell on a Saturday, Appellant had
until Monday, March 9, 2009, to file his notice of appeal. See 1 Pa.C.S.
§ 1908 (stating that, for computations of time, whenever the last day of any
such period shall fall on Saturday or Sunday, or a legal holiday, such day
shall be omitted from the computation.); Commonwealth v. Green, 862
A.2d 613, 618 (Pa. Super. 2004).



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Newman.” Appellant’s pro se Brief at 28. Thus, Appellant’s argument may

be characterized as an attempt to assert the “new constitutional right”

exception to the PCRA time-bar based on Apprendi v. New Jersey, 530

U.S. 466, 120 S.Ct. 2348 (2000); Alleyne v. United States, 133 S.Ct.

2151 (2013); and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014).

     This Court has explained the rulings and impact of the cases

referenced by Appellant as follows:

     In Alleyne, the Supreme Court held that the constitutional jury
     trial right requires any fact, other than a prior conviction, that
     triggers a mandatory minimum sentence to be proven beyond a
     reasonable doubt before the finder of fact.        Alleyne is an
     application of the Court’s prior pronouncement in Apprendi v.
     New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
     (2000), which ruled that any fact that increases a maximum
     sentence must be found by the factfinder beyond a reasonable
     doubt or admitted by the defendant during his guilty plea. In
     Alleyne, the United States Supreme Court expressly overruled
     Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
     L.Ed.2d 524 (2002), which held that a fact that involves a
     mandatory minimum sentence does not implicate jury trial
     rights.     Alleyne also implicitly abrogated McMillan v.
     Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67
     (1986), which withstood an Apprendi attack in the Harris
     decision.

          In   Commonwealth v. Newman,                99  A.3d   86
     (Pa.Super.2014) (relying upon Commonwealth v. Watley, 81
     A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that
     Alleyne will be applied to cases pending on direct appeal when
     Alleyne was issued.

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)

(emphasis added).


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      While this Court has held that Alleyne applies retroactively to cases

that were on direct appeal when Alleyne was issued, we have declined to

construe that decision as applying retroactively to cases during PCRA review.

      In concluding Alleyne does not satisfy the new retroactive
      constitutional right exception to the PCRA’s one year time bar,
      42 Pa.C.S. § 9545(b)(1)(iii), the [Commonwealth v. Miller,
      102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:

            Even assuming that Alleyne did announce a new
            constitutional right, neither our Supreme Court, nor
            the United States Supreme Court has held that
            Alleyne is to be applied retroactively to cases in
            which the judgment of sentence had become
            final. This is fatal to Appellant’s argument regarding
            the PCRA time-bar. This Court has recognized that a
            new rule of constitutional law is applied retroactively
            to cases on collateral review only if the United States
            Supreme Court or our Supreme Court specifically
            holds it to be retroactively applicable to those cases.

      Id. at 995 (citations omitted) (emphasis supplied).

Commonwealth v. Ruiz,           _ A.3d.     _, 2015 PA Super 275 at 3 (Pa.

Super. Dec. 30, 2015) (emphasis in original).

      Alleyne was decided on June 17, 2013.            As noted, Appellant’s

judgment of sentence was finalized years before Alleyne was decided.

Additionally, we note that although a challenge based on Alleyne does

implicate the legality of a sentence, “a legality of sentence claim may

nevertheless be lost should it be raised . . . in an untimely PCRA petition for

which no time-bar exception applies.” Miller, 102 A.3d at 995-996. Thus,

the PCRA court properly dismissed Appellant’s instant PCRA petition as

untimely. It was filed beyond the one-year general deadline and Appellant

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cannot rely on Alleyne or its progeny to invoke the timeliness exception at

section 9545(b)(1)(iii).

      Consequently, because the PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.     See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).     Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.              See

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

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2016




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