J-S28034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY FERAIRRA,

                            Appellant                No. 3243 EDA 2015


                Appeal from the PCRA Order September 30, 2015
             in the Court of Common Pleas of Northampton County
               Criminal Division at Nos.: CP-48-CR-0002078-2006
                            CP-48-CR-0003822-2006


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 12, 2016

        Appellant, Anthony Ferairra, appeals pro se from the order dismissing

his third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541–46, without a hearing, as untimely.         Specifically, he

maintains that he received a mandatory sentence which he asserts is facially

unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015).

We affirm.

        We derive the factual and procedural history of this appeal from the

PCRA court’s Rule 907 Notice of Intention to Dismiss PCRA [Petition] Without

[a] Hearing, and our independent review of the record.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Appellant engaged in oral and vaginal sex with his then-nine year-old

step-daughter, and when she was not available, his own eleven year-old

biological daughter.       The course of sexual acts apparently continued for

three years. On September 12, 2006, Appellant entered a guilty plea in the

case docketed at CP-48-CR-0002078-2006 to involuntary deviate sexual

intercourse with a person less than thirteen years of age, aggravated

indecent assault of a child and statutory sexual assault.

             On . . . December 7, 2006, [Appellant] pleaded guilty [to
       charges docketed at CR-3822-2006] and was sentenced on the
       charges of involuntary deviate sexual intercourse, statutory
       sexual assault, criminal attempt to commit incest, endangering
       the welfare of children and two counts of aggravated indecent
       assault. [Appellant] was sentenced to an aggregate term of
       incarceration of fifteen (15) years to eighty-six (86) years.[1]

             [Appellant] filed his first PCRA [p]etition on September 12,
       2008, which was dismissed by [the PCRA court], and the
       dismissal was affirmed by the Superior Court. [Appellant] filed a
       second PCRA Petition on August 17, 2011, raising identical
       issues.   [The PCRA court] again dismissed his Petition and
       [Appellant] failed to perfect his appeal.

              [Appellant] filed the instant PCRA Petition, his third, on
       August 17, 2015. In assessing [Appellant]’s claims, we find that
       all of Petitioner’s [Appellant’s] claims are untimely.

(Notice of Intention to Dismiss, 9/03/15, at 1).

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1
  We also note that on the same date as sentencing, the court determined
Appellant to be a sexually violent predator. (See N.T. Plea/Sentencing,
12/07/06, at 19). Appellant filed a motion for modification of sentence on
December 15, 2006, which the court denied on December 21, 2006, without
a hearing.



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      Appellant filed an objection to the notice of intent to dismiss, on

September 18, 2015.          The PCRA court dismissed Appellant’s petition on

September 30, 2015. Appellant timely appealed on October 22, 2015. He

filed a voluntary concise statement of errors on October 29, 2015.       The

PCRA filed a Rule 1925(a) statement on November 18, 2015, referring this

Court to its Notice of Intention to Dismiss, filed on September 3, 2015. See

Pa.R.A.P. 1925.

      Appellant raises two questions on appeal:

           1. Whether the PCRA [c]ourt’s finding that [Appellant’s]
      PCRA is untimely filed is not supported by the record?

            2. Whether the PCRA [c]ourt’s finding that the sentence
      imposed on [Appellant] did not trigger the mandatory sentence
      deemed unconstitutional and illegal is not supported by the
      record?

(Appellant’s Brief, at 4).

      In connection with these issues, Appellant argues dismissal without a

hearing was an abuse of discretion. He maintains this Court should remand

for an evidentiary hearing, or resentencing. (See id. at 9). We disagree.

      The standard of review for an order denying post-conviction relief is

limited to whether the record supports the PCRA court’s determination, and

whether that decision is free of legal error. See Commonwealth v. Allen,

732 A.2d 582, 586 (Pa. 1999).          The PCRA court’s findings will not be

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

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).


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Furthermore, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine

issue concerning any material fact and the petitioner is not entitled to post-

conviction collateral relief, and no purpose would be served by any further

proceedings.   See Pa.R.Crim.P. 907(1); Commonwealth v. Hardcastle,

701 A.2d 541, 542 (Pa. 1997).

            As a preliminary matter, we note that our Supreme Court
     has stressed that “[t]he PCRA’s timeliness requirements are
     jurisdictional in nature and must be strictly construed; courts
     may not address the merits of the issues raised in a petition if it
     is not timely filed.” Commonwealth v. Abu–Jamal, 596 Pa.
     219, 227, 941 A.2d 1263, 1267–68 (2008) (citation omitted),
     cert. denied, Abu–Jamal v. Pennsylvania, ––– U.S. ––––, 129
     S.Ct. 271, 172 L.Ed.2d 201 (2008).

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011).

     At the outset, then, we must determine whether Appellant timely filed

his current PCRA petition, which is also the issue he raises in his first

question.

     [W]hen a PCRA petition is not filed within one year of the
     expiration of direct review, or not eligible for one of the three
     limited exceptions, or entitled to one of the exceptions, but not
     filed within 60 days of the date that the claim could have been
     first brought, the trial court has no power to address the
     substantive merits of a petitioner’s PCRA claims.

Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000).

     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 time for seeking

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

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      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.   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 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.A. § 9545(b)(1)(i)-(iii).

      The PCRA specifically provides that a petitioner raising one of the

statutory exceptions to the timeliness requirements must affirmatively plead

and prove the exception. See Commonwealth v. Beasley, 741 A.2d 1258,

1261 (Pa. 1999).

      Here, the court imposed sentence on December 7, 2006, and denied

Appellant’s motion to modify sentence on December 21, 2006. Appellant did

not file a direct appeal. Therefore, his judgment of sentence became final

on January 22, 2007, because the thirtieth day after the denial of his motion

to modify sentence fell on Saturday, January 20, 2007. See 1 Pa.C.S.A. §

1908(2); see also Pa.R.Crim.P. 720(A)(2)(a) (“If the defendant files a


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timely post-sentence motion, the notice of appeal shall be filed . . . within 30

days of the entry of the order deciding the motion[.]); Pa.R.A.P. 903(a).

Accordingly, Appellant had one year or until January 22, 2008 to file a timely

PCRA petition.

       The instant petition, filed August 17, 2015, more than seven years

beyond the statutory deadline, is therefore untimely on its face, unless

Appellant both pleads and proves one of the statutory exceptions to the time

bar.

       While inartfully drafted, it is apparent that Appellant claims the benefit

of the holding he perceives in Johnson, supra, decided June 26, 2015.2

(See Appellant’s Brief, at 7). Specifically, Appellant claims that the United

States Supreme Court in Johnson “held mandatory sentences to be facially

unconstitutional.” (Id.) (citation omitted). His reliance is misplaced.

       In reviewing the federal Armed Career Criminal Act (ACCA), Johnson

held no more than that imposing an increased (mandatory minimum)

sentence on a defendant with three prior convictions for a “violent felony,”

under the residual clause of the ACCA violates the Constitution’s

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2
  Appellant mis-cites Johnson. He also refers, erroneously, to Johnson as
having been filed on July 26, 2015. (See Appellant’s Brief, at 7). Appellant
claims that he therefore timely filed his PCRA petition on August 12, 2015,
docketed August 17, within sixty days of the date the case was decided.
(See id.). In any event, Appellant timely filed within sixty days of the actual
decision date.




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guarantee of due process. See Johnson, supra at 2563 (“Today’s decision

does not call into question application of the Act to the four enumerated

offenses, or the remainder of the Act’s definition of a violent felony.”).

       In so ruling, the Johnson Court decided only that 18 U.S.C.A.

§ 924(e)(2)(B)(ii) was unconstitutional. See id. at 2557 (“Two features of

the residual clause conspire to make it unconstitutionally vague.”)

(emphasis added).         Briefly summarized, the Court held that the ACCA

“residual clause,” which defined “violent felony” to include any felony that

“involves conduct that presents a serious potential risk of physical injury to

another” was unconstitutionally void for vagueness. Id.

       Accordingly, Johnson’s holding on a specific provision of ACCA has no

applicability whatsoever to Appellant’s conviction. His broadside claim that

all mandatory sentences are facially unconstitutional based on Johnson is

manifestly erroneous.        Indeed, lacking any support in fact or law, it is

frivolous. Appellant has failed to prove an exception to the PCRA time bar.3

Because Appellant has failed to prove a statutory exception to the time bar,




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3
  Because our decision disposes of timeliness and jurisdiction, the basis of
the PCRA court’s disposition and the first issue raised by Appellant, we need
not address the many other difficulties invocation of Johnson entails, most
notably the lack of retroactive application, and we decline to do so.




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the PCRA court properly determined it had no jurisdiction to review his

remaining claims on the merits.4

       Furthermore, Appellant’s claim that he may raise illegality of sentence

as a matter of right, because it is non-waivable and may be entertained so

long as the reviewing court has jurisdiction, while correct as stated,

does not merit review or relief.          (See Appellant’s Brief at 3).   “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.”     Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)

(emphasis added).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




____________________________________________


4
  Moreover, our review of the record confirms the PCRA court’s explanation
that Appellant did not receive any mandatory minimum sentence. (See N.T
Plea/Sentence, 12/07/06, at 29-30; see also Notice of Intention, at 3).




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