J-S28022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LARRY RAY YAW, JR.                         :
                                               :
                       Appellant               :   No. 93 MDA 2019

            Appeal from the PCRA Order Entered December 26, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003136-2013


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 14, 2019

        Larry Ray Yaw, Jr. appeals pro se from an order denying his petition for

relief under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

9546. Yaw’s counsel filed a Turner/Finley1 letter in the PCRA court and

moved to withdraw as counsel. That court dismissed the PCRA petition as

untimely and granted counsel’s motion to withdraw. We affirm.

        Yaw entered a negotiated guilty plea to one count of Possession of a

Controlled Substance with Intent to Deliver2 on January 30, 2014. On the

same day, the trial court sentenced Yaw to the negotiated sentence of two to

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

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

2   35 P.S. § 780-113(a)(30)
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four years of incarceration. Yaw did not file any post-sentence motions or a

direct appeal.

        On April 10, 2017, Yaw filed the instant, pro se PCRA petition alleging

that counsel was ineffective for failing to advise him that his negotiated

sentence allegedly violated Alleyne3 and thus induced him to enter the

negotiated plea. The court appointed counsel, who subsequently filed a

Turner/Finley       no-merit     letter   and    sought   leave   to   withdraw   from

representation. The court then issued a Pa.R.Crim.P. 907 notice of intent to

dismiss. Yaw did not respond. The court granted counsel’s motion to withdraw

and dismissed Yaw’s PCRA petition. Yaw filed this timely appeal and raises the

following issues:

          1. Was [Yaw] coerced to plead guilty by threat of receiving
             a mandatory minimum sentence under 18 Pa.C.S.[A.] §
             7508(a)(iii)?

          2. Was [Yaw] sentence to a mandatory minimum sentence
             after the Alleyne v. United States decision, and
             counsel subsequently ineffective for failing to either alert
             [Yaw], challenge, or withdraw [Yaw]’s plea altogether,
             due to [Yaw] being sentenced to an illegal mandatory
             minimum sentence?

          3. Does the exception apply under 42 Pa.C.S.A. §
             9545(b)(1)(ii) given the ramifications of Com v.
             Patterson, therefore [Yaw] could not have been aware
             and express due diligence upon finding out and therefore
             file a timely petition?

          4. Is [Yaw]’s sentence a mandatory minimum sentence and
             was [Yaw] sentenced under 18 Pa.C.S.[A.] § 7508(a)(iii),
             after ‘Alleyne?’
____________________________________________


3   Alleyne v. United States, 570 U.S. 99 (2013).

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         5. Did the PCRA court abuse its discretion in failing to hold
            an evidentiary hearing where [Yaw] raised issues of
            material fact that would have entitled him to relief?

         6. Is this sentence illegal and therefore non-waivable
            because [Yaw] is not seeking to apply ‘Alleyne’
            retroactively, instead he is seeking relief for a sentencing
            claim that was available to him on direct review?

Yaw’s Br. at 5-6.

      Our standard of review for the denial of post-conviction relief “is limited

to examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      We do not reach Yaw’s substantive claims because we agree with the

PCRA court that Yaw’s PCRA petition was untimely. No court has jurisdiction

to afford relief under the PCRA if the petitioner has not filed a PCRA petition

seeking the relief within one year of the petitioner’s judgment becoming final,

unless the petitioner meets a statutory timeliness exception. See 42 Pa.C.S.A.

§ 9545(b)(1); Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011). The

PCRA petitioner bears the burden of pleading and proving that at least one of

the timeliness exceptions applies. Commonwealth v. Marshall, 947 A.2d

714, 720 (Pa. 2008). In the instant case, Yaw’s judgment became final on

March 3, 2014. Yaw should have filed his PCRA petition by March 3, 2015.

However, Yaw did not file his PCRA petition until April 10, 2017, more than

two years after the deadline, rendering his PCRA petition facially untimely.




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      Yaw claims he qualifies for the exception for 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)(iii).

Under this exception, either the Pennsylvania or the United States Supreme

Court must have established the right after the deadline for the appellant to

file a PCRA petition and held the right to apply retroactively. See

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

      Neither the United States Supreme Court nor the Pennsylvania Supreme

Court has held Alleyne to apply retroactively. In fact, our Supreme Court has

affirmatively held that it does not. See Commonwealth v. Washington, 142

A.3d 810, 820 (Pa. 2016). Thus, Yaw’s retroactive right claim must fail.

      Yaw also asserts that he is entitled to the newly discovered fact

exception under 42 Pa.C.S.A. § 9545(b)(1)(ii) because of our Court’s holding

in Commonwealth v. Patterson, 143 A.3d 394 (Pa.Super. 2016). This

argument fails because judicial decisions are not “facts” and do not trigger

section 9545(b)(ii). Watts, 23 A.3d at 986 (“[T]he latter proposition is absurd

because section 9545(b)(ii) applies only if the petitioner has uncovered facts

that could not have been ascertained through due diligence, and judicial

determinations are not facts”).

      Yaw contends that he is “not seeking to apply Alleyne retroactively by

way of collateral review,” Yaw’s Br. at 4, and asks this Court to consider his

legality of sentence claim. However, for this court to consider a legality of

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sentence claim, we must have jurisdiction to do so. See Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa.Super. 2014). Yaw’s PCRA petition was

untimely and he failed to prove a timeliness exception. Therefore, the PCRA

court did not, and we do not, have jurisdiction to review the merits of the

petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/14/2019




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