J-S03038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 RENN STOKES                            :
                                        :   No. 866 EDA 2016
                     Appellant

               Appeal from the PCRA Order February 29, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0504881-2006,
                          CP-51-CR-0707061-2006


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

MEMORANDUM BY STEVENS, P.J.E.:                  FILED FEBRUARY 09, 2018

      Appellant, Renn Stokes, appeals pro se from the order dismissing his

first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46, on the basis it was untimely filed.     After a careful

review, we affirm.

      The relevant facts and procedural history are as follows: Appellant was

arrested and charged in connection with two separate robberies of residences

in Philadelphia.   With regard to the charges at docket number CP-51-CR-

0504881-2006, Appellant, who was represented by counsel, proceeded to a

jury trial, at the conclusion of which he was convicted of robbery, aggravated

assault, burglary, possessing an instrument of crime (“PIC”), and conspiracy.

On September 24, 2007, as a second strike offender under 42 Pa.C.S.A. §


____________________________________
* Former Justice specially assigned to the Superior Court.
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9714, Appellant was sentenced to an aggregate of ten years to twenty years

in prison for robbery, aggravated assault, and burglary, and he was sentenced

to a consecutive two and one-half years to five years in prison for PIC. The

sentence   for   docket    number    CP-51-CR-0504881-2006     was   imposed

concurrently to Appellant’s sentence for docket number CP-51-CR-0707061-

2006 but consecutively to any other sentence.

     With regard to the charges at docket number CP-51-CR-0707061-2006,

on September 24, 2007, Appellant entered into a negotiated guilty plea to

robbery, aggravated assault, burglary, PIC, and conspiracy. On that same

date, he was sentenced as a second strike offender under Section 9714 to an

aggregate of ten years to twenty years in prison, and he was sentenced to a

consecutive two and one-half years to five years in prison for PIC.         The

sentence   for   CP-51-CR-0707061-2006      was   imposed    concurrently    to

Appellant’s sentence      for   docket number   CP-51-CR-0504881-2006       but

consecutively to any other sentence.

     Appellant filed neither post-sentence motions nor a direct appeal with

regard to either case. However, on or about September 26, 2014, Appellant

filed a pro se PCRA petition at both lower court docket numbers, which he

supplemented pro se on July 17, 2015. The PCRA court consolidated the cases




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and appointed counsel, who filed a petition to withdraw, as well as a

Turner/Finley1 no-merit letter, on November 3, 2015.

       By order filed on January 5, 2016, the PCRA court provided notice of its

intent to dismiss Appellant’s PCRA petition without an evidentiary hearing. By

order entered on February 26, 2016, the PCRA court granted counsel’s petition

to withdraw,2 and by order entered on February 29, 2016, the PCRA court

dismissed Appellant’s PCRA petition. This timely pro se appeal followed.

       Appellant presents the following issue, which we set forth verbatim:

             This Court should resolve the issue as to whether the ruling
       by the Pennsylvania Appellate Courts, in finding mandatory
       sentencing statutes void ab initio pursuant to Alleyne v. United
       States, have created a position where retroactive application of
       Alleyne should apply to defendant’s [sic] in Pennsylvania based
       on the decision of the United States Supreme Court in Welch v.
       United States, 2016 U.S. Lexis 2451 and this Court’s recent
       argument in Commonwealth v. Barnes, 36 EAP 2015.

Appellant’s Brief at 4.

       Preliminarily, we note “[o]ur 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.




____________________________________________


1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

2 This Court has not been provided with the February 26, 2016, order;
however, the certified docket entries contain an entry indicating the PCRA
court entered an order on this date “relieving” counsel pursuant to Finley.

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Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation

marks omitted).

       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

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               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).

      “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) (citation omitted).

Moreover, as this Court has often explained, all of the time-bar exceptions are

subject to a separate deadline. Our Supreme Court has held that any petition

invoking an exception must show due diligence insofar as the petition must

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

Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339 (2013). See 42

Pa.C.S.A. § 9545(b)(2).

      In the case sub judice, Appellant was sentenced on September 24, 2007,

and he filed neither post-sentence motions nor a direct appeal. Accordingly,

his judgment of sentence became final thirty days thereafter, on October 24,

2007, when the time period for filing a direct appeal to this Court expired.

See Pa.R.A.P. 903(a) (providing an appeal to this Court shall be filed within

thirty days after entry of the order from which the appeal is taken); 42

Pa.C.S.A. § 9545(b)(3) (setting forth when judgment of sentence becomes

final); 1 Pa.C.S.A. § 1908 (setting forth rules for computation of time). Thus,

Appellant had until October 24, 2008, to file a timely PCRA petition; however,

Appellant filed the instant PCRA petition on or about September 26, 2014, and

therefore, it is patently untimely under the PCRA.        See 42 Pa.C.S.A. §

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9545(b)(1); Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780

(2000) (holding a PCRA petition filed more than one year after judgment of

sentence becomes final is untimely and the PCRA court lacks jurisdiction to

address the petition unless the petitioner pleads and proves a statutory

exception to the PCRA time-bar).

      Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A. §

9545(b)(1)(iii) relating to a new constitutional right that applies retroactively.

Specifically, Appellant, who was sentenced to a mandatory minimum provision

as a repeat offender under 42 Pa.C.S.A. § 9714(a)(1), contends his sentence

was illegal pursuant to Commonwealth v. Alleyne, 133 S.Ct. 2151 (2013),

as applied retroactively by Welch v. United States, 136 S.Ct. 1257 (2016),

and Commonwealth v. Barnes, 637 Pa. 493, 151 A.3d 121 (2016).

Assuming, arguendo, Appellant met his initial burden of showing that he raised

his claim within sixty days of the date the claim could have first been

presented, see Edmiston, supra, we conclude Appellant is incorrect in his

assertion that he has satisfied the timeliness exception.

      In Alleyne, the United States Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt.          Id. at 2163.      However, assuming,

arguendo, Appellant’s mandatory minimum sentence falls under the ambit of

the Alleyne decision, our Supreme Court has held that “Alleyne does not

invalidate a mandatory minimum sentence when presented in an untimely


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PCRA petition … since Alleyne does not apply to cases where the judgment

of sentence was final prior to Alleyne.” Commonwealth v. DiMatteo, 10

MAP 2017, 2018 WL 459340, at *4, *8 (Pa. Jan. 18, 2018) (citations omitted).

Alleyne was filed on June 17, 2013, and Appellant’s judgments of sentence

became final prior thereto (on October 24, 2007).      Thus, Appellant is not

entitled to relief.

      Further, Appellant’s reliance upon Welch is misplaced.         The sole

purpose of the Welch decision was to determine whether Johnson v. United

States, 135 S.Ct. 2551 (2015), applied retroactively to cases on collateral

review. In Johnson, the Court held that the “residual clause” of 18 U.S.C. §

924(e)(2)(B)(ii) was unconstitutionally vague.      In the case sub judice,

Appellant was not sentenced under this provision, and thus, the Welch

holding mandating retroactive invalidation of sentences pursuant to Section

924(e)(2)(B)(ii) has no bearing on Appellant’s sentence. Also, it is noteworthy

that neither Welch nor Johnson address Alleyne and, thus, cannot

reasonably be found to mandate the retroactive application of Alleyne.

      Finally, Appellant’s reliance upon Barnes is also misplaced. In Barnes,

our Supreme Court held that an Alleyne challenge implicates the legality of a

sentence for issue preservation purposes and is, thus, not waivable. However,

Barnes involved a direct appeal from a judgment of sentence, and the

decision did not declare Alleyne to be retroactive in the PCRA context. It is

well-settled that “[a]lthough legality of sentence is always subject to review


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within the PCRA, claims must still first satisfy the PCRA’s time limits or one of

the exceptions thereto.” Commonwealth v. Fowler, 930 A.2d 586, 592

(Pa.Super. 2007) (quotation marks, quotations, and citations omitted). Thus,

Appellant is not entitled to relief on this basis.

      In light of the aforementioned, we conclude Appellant’s instant PCRA

petition is untimely, and he has failed to invoke successfully any of the

timeliness exceptions. Accordingly, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/18




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