J-S18013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KAREN YARSUNAS,

                            Appellant                  No. 800 EDA 2014


            Appeal from the PCRA Order Entered February 27, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0002637-2010


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 12, 2015

       Appellant, Karen Yarsunas, appeals from the post-conviction court’s

February 27, 2014 order denying as untimely her petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm.

       On April 13, 2010, Folcroft Borough police in Delaware County arrested

Appellant for drug offenses related to the discovery of several prescription

and illicit drugs in her possession.1          The Commonwealth subsequently
____________________________________________


1
  After initially discovering 2 small baggies of cocaine and 60 Methadone pills
in Appellant’s possession, police obtained a search warrant and discovered in
Appellant’s vehicle an additional “311 Methadone pills, 4 oxycontin pills, 50
oxycodone pills, 6 wax bags of heroin in a small match box, 1 bag of
cocaine, 3 Seroquel 200 pills, 1 Viagra pill, 2 red straws, 2 empty glassine
bags, $350, $120, $20, $82, $1,900 all in separate sections of her wallet, a
digital scale, and 2 Cricket cell phones.” Trial Court Opinion (TCO), 7/17/14,
at 3 n.3.
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charged Appellant with possession of, and possession with intent to deliver,

a controlled substance, possession of drug paraphernalia, adulteration and

misbranding of a controlled substance, failure to use a turn signal, and

windshield obstructions. A jury trial was held on March 1, 2011. The jury

found Appellant guilty on all drug-related counts. On May 10, 2011, the trial

court sentenced Appellant to an aggregate sentence of 5-10 years’

incarceration, to be followed by a consecutive term of 2 years’ probation.

      Appellant filed a timely, counseled notice of appeal on June 6, 2011.

This Court affirmed Appellant’s judgment of sentence in a memorandum

opinion filed on April 10, 2012. See Commonwealth v. Yarsunas, 48 A.3d

473 (Pa. Super. 2012) (unpublished memorandum). Appellant did not seek

further appellate review at that time.

      Appellant filed a timely, pro se PCRA petition on May 23, 2012, and

the PCRA court appointed PCRA counsel to represent her.        Subsequently,

counsel filed an amended PCRA petition and, separately, an “Amended

Motion for Extraordinary Relief Pursuant to Title 42 Pa.C.S.A. § 9777(a)(2).”

At a hearing held on March 5, 2013, the PCRA court granted the motion for

extraordinary relief and Appellant (through counsel) withdrew her pending

PCRA petition.

      On August 5, 2013, Appellant filed a “Motion for Post Trial Relief” in

the PCRA court (August 2013 PCRA Petition). The court treated the motion

as a PCRA petition and appointed Henry DiBenedetto, Esq., to represent

Appellant.   On October 29, 2013, Attorney DiBenedetto filed a no-merit

                                     -2-
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letter and a request to withdraw pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988).     His request to withdraw was granted on October 31,

2013.    Appellant filed a timely response to the no-merit letter on January

23, 2014. On January 30, 2014, the PCRA court issued a notice of its intent

to dismiss Appellant’s August 2013 PCRA Petition pursuant to Pa.R.Crim.P.

907. The court formally dismissed the petition as untimely under the PCRA

by order dated February 27, 2014.

        On March 6, 2014, Appellant filed a timely notice of appeal from the

February 27, 2014 PCRA court order dismissing her August 2013 PCRA

Petition. Appellant filed a timely Pa.R.A.P. 1925(b) statement, and the PCRA

court issued its Rule 1925(a) opinion on July 17, 2014.

        Appellant now presents the following questions for our review:

         I.   Is Appellant’s sentence illegal and unconstitutional
              pursuant to Alleyne v. United States[, 133 S.Ct. 2151
              (2013)]?

        II.   Did the PCRA court err when the court dismissed
              Appellant’s amended petition for post-conviction relief as
              untimely?

     III.     Did the PCRA court err when the court dismissed
              Appellant’s amended petition for post-conviction relief as
              lacking merit?

Appellant’s Brief, at 2 (unnecessary capitalization omitted).

        We review Appellant’s claims under the following standard:

             Our standard of review of an order denying PCRA relief is
        whether the record supports the PCRA court's determination and
        whether the PCRA court's decision is free of legal error.

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     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)).

            We must first address whether Appellant satisfied the
     timeliness requirements of the PCRA. The timeliness of a PCRA
     petition is a jurisdictional threshold and may not be disregarded
     in order to reach the merits of the claims raised in a PCRA
     petition that is untimely. Commonwealth v. Murray, 562 Pa.
     1, 753 A.2d 201, 203 (2000). Effective January 16, 1996, the
     PCRA was amended to require a petitioner to file any PCRA
     petition within one year of the date the judgment of sentence
     becomes final. 42 Pa.C.S.A. § 9545(b)(1). 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.A. §
     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.A. § 9545(b)(1)(i), (ii), and (iii), are met. 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.A. § 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.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (footnote

omitted).

     In its opinion, the PCRA court found that Appellant’s August 2013

PCRA Petition was untimely.    See TCO, at 11-12.       The PCRA court also

determined that Appellant could not rely on any exception to the timeliness

requirements of the PCRA by claiming retroactive application of Alleyne


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because Appellant did not raise that claim “within 60 days of the date the

claim could have been presented.”                See TCO, at 13; 42 Pa.C.S. §

9545(b)(2). In any event, the PCRA court also concluded that Alleyne has

not been afforded retroactive effect by the issuing court and, thus, Appellant

could not have relied on the PCRA’s retroactivity timeliness exception. See

TCO, at 15-16; 42 Pa.C.S. § 9545(b)(1)(iii).          Accordingly, the PCRA court

lacked jurisdiction to entertain Appellant’s August 2013 PCRA petition.2

       After a thorough review of the record, the briefs, the applicable law,

and the thorough, well-reasoned opinion of the PCRA court, we agree that

Appellant’s August 2013 PCRA Petition is untimely and that no timeliness

exception applies. The PCRA court’s 24-page opinion adequately addresses

Appellant’s claim(s) to the contrary. Accordingly, we affirm on the basis of

the PCRA court’s opinion.

       Order affirmed.




____________________________________________


2
  Out of an abundance of caution, the PCRA court also addressed the merits
of Appellant’s claims, concluding that each lacked merit. Because we agree
that Appellant’s August 2013 PCRA petition was untimely, and that Appellant
failed to demonstrate the applicability of any exception to the PCRA’s
timeliness requirements, we need not review the PCRA court’s analysis in
this regard.



                                           -5-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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