J-S27015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                    Appellee            :
                                        :
              v.                        :
                                        :
SHAWN DUELL                             :
                                        :
                    Appellant           :        No. 2467 EDA 2016


                  Appeal from the PCRA Order July 11, 2016
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0002216-2012


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                        FILED MAY 02, 2017

        Appellant, Shawn Duell, appeals from the order of the Chester County

Court of Common Pleas, which dismissed as untimely his second petition

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

9546.     On July 3, 2013, Appellant entered a negotiated guilty plea to

robbery and persons not to possess firearms; the court sentenced Appellant

to 7½ to 15 years’ imprisonment, which included a mandatory minimum

sentence of 5 years’ imprisonment per 42 Pa.C.S.A. § 9712(a) (offenses

committed with firearms), plus 5 years’ probation. Appellant did not file a

direct appeal. Appellant filed his first PCRA petition on September 29, 2014,

claiming, inter alia, that his sentence was illegal under Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (decided

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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June 17, 2013).     The court appointed counsel, who filed a motion to

withdraw and a no-merit letter on November 5, 2014.             The court issued

notice per Pa.R.Crim.P. 907 on December 2, 2014; Appellant did not

respond.    On January 7, 2015, the court denied PCRA relief and allowed

counsel to withdraw. Appellant did not seek further review.

      Appellant filed the current pro se PCRA petition on June 1, 2016, for

relief under Alleyne, claiming both trial counsel and PCRA counsel were

ineffective, based on their failure to pursue his Alleyne claim.         The court

issued Rule 907 notice on June 8, 2016; Appellant responded on June 27,

2016. On July 11, 2016, the court denied PCRA relief. Appellant timely filed

a pro se notice of appeal on August 3, 2016. The court ordered Appellant to

file a concise statement per Pa.R.A.P. 1925(b); Appellant timely complied.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016).                      A PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final.              42

Pa.C.S.A. § 9545(b)(1).       A judgment of sentence 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.” 42 Pa.C.S.A. § 9545(b)(3). The

statutory   exceptions   to    the   PCRA    time-bar   allow   for   very   limited

circumstances which excuse the late filing of a petition; a petitioner


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asserting a timeliness exception must file a petition within 60 days of when

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

      To invoke the “new facts” exception, the petitioner must plead and

prove: “[T]he facts upon which the claim is predicated were unknown to the

petitioner and could not have been ascertained by the exercise of due

diligence[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii). The “new constitutional right”

exception requires the petitioner to plead and prove: “[T]he 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)(iii).

      Instantly, Appellant’s judgment of sentence became final on or about

August 2, 2013, upon expiration of the 30 days for filing a direct appeal with

this Court. See Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA

petition on June 1, 2016, which is patently untimely.    See 42 Pa.C.S.A. §

9545(b)(1).    See also Commonwealth v. Taylor, 65 A.3d 462, 465

(Pa.Super. 2013) (stating issues regarding legality of sentence must be

presented in timely PCRA petition).     To the extent Appellant attempts to

invoke the “new facts” exception, the Alleyne decision and its Pennsylvania

progeny do not constitute “new facts” under Section 9545(b)(1)(ii).       See

Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011) (stating judicial

determinations are not “facts” within meaning of Section 9545(b)(1)(ii)).


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Moreover, the “new constitutional right” exception provides no benefit to

Appellant because Alleyne does not serve as an exception to the PCRA

time-bar. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014)

(holding that even if Alleyne announced new constitutional right, neither

our Supreme Court nor U.S. Supreme Court has held that Alleyne applies

retroactively,    which    is   fatal   to     appellant’s   attempt   to   satisfy   “new

constitutional right”      exception to         timeliness requirements of PCRA).1

Therefore, Appellant’s petition remains time-barred, and the PCRA court

lacked jurisdiction to review it. Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




____________________________________________


1
  Appellant also failed the 60-day rule. See 42 Pa.C.S.A. § 9545(b)(2).
Further, Appellant’s ineffective assistance of prior counsel claims do not
qualify as exceptions to the statutory timeliness requirement.        See
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000).



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