J-S43036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN FRANKLIN WRIGHT, JR.

                            Appellant                 No. 1299 MDA 2015


                   Appeal from the PCRA Order July 9, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000878-2005
                                         CP-36-CR-0000883-2005
                                         CP-36-CR-0000895-2005
                                         CP-36-CR-0000947-2005
                                         CP-36-CR-0001381-2005
                                         CP-36-CR-0001834-2005


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                              FILED JULY 22, 2016

        John Franklin Wright, Jr. (“Appellant”) appeals pro se from the order

entered in the Lancaster County Court of Common Pleas, which denied his

petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”). 1

We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On July 26, 2005, Appellant pled guilty to multiple counts of delivery and

possession with intent to deliver cocaine,2 criminal use of a communication
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    35 P.S. § 780-113(a)(30).
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facility,3 possession of drug paraphernalia,4 and possession of firearm

prohibited.5,   6
                    That same day, pursuant to the plea agreement, the court

imposed an aggregate sentence of fifteen (15) to thirty (30) years’

incarceration.7

        On August 24, 2005, Appellant filed a notice of appeal. On March 22,

2006, this Court dismissed Appellant’s appeal for failure to file a brief. He

did not petition for allowance of appeal with our Supreme Court. On March

3, 2011, Appellant filed a PCRA petition, which the PCRA court ultimately

dismissed as untimely on July 22, 2011. On November 9, 2012, this Court

affirmed the order dismissing Appellant’s first PCRA petition.

        On June 24, 2014, Appellant filed the instant PCRA petition, his

second. On July 2, 2014, the PCRA court appointed counsel. On October

20, 2014, counsel filed a no-merit letter pursuant to Commonwealth v.

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


3
    18 Pa.C.S. § 7512.
4
    35 P.S. § 780-113(a)(32).
5
    18 Pa.C.S. § 6105.
6
  His convictions stem from six separate incidents docketed at CP-36-CR-
0000878-2006, CP-36-CR-0000883-2005, CP-36-CR-0000895-2005, CP-36-
CR-0000947-2005, CP-36-CR-0001381-2005, and CP-36-CR-0001834-2005.
7
  Pursuant to the agreement, the United States Attorney’s Office for the
Eastern District of Pennsylvania agreed not to indict Appellant for federal
drug charges.




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213 (Pa.Super.1988) (en banc). On October 30, 2014, Appellant filed a pro

se motion to amend his PCRA petition. On February 18, 2015, counsel filed

a supplemental no-merit letter and sought to withdraw as counsel.            On

March 18, 2015, Appellant objected to counsel’s no-merit letter.        On April

21, 2015, Appellant filed a pro se memo in support of his PCRA petition.

       On May 1, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s PCRA petition and grant counsel’s motion to

withdraw without a hearing.          On May 18, 2015, Appellant filed a pro se

motion to have his direct appeal rights reinstated nunc pro tunc. On July 10,

2015, the PCRA court dismissed Appellant’s PCRA petition, denied his motion

for nunc pro tunc relief as previously litigated, and granted PCRA counsel’s

motion to withdraw.

       On July 23, 2015, Appellant filed a timely notice of appeal. Appellant

and the PCRA court complied with Pa.R.A.P. 1925.8

       Appellant presents the following issues for our review:

          Is the United States Supreme Court ruling within Alleyne
          v. United, 133 S.Ct, 2151, 186 L.Ed.2d 314 (2013), is a
          substantial issues and must be applied retroactive?

          Was the Lower Court’s denial of PCRA relief in light of the
          Pennsylvania   Supreme        Court     ruling      within,
____________________________________________


8
  On July 27, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal, and he timely complied on
August 14, 2015. The PCRA court issued its opinion pursuant to Pa.R.A.P.
1925(a) on September 3, 2015, in which it incorporated its Pa.R.Crim.P. 907
notice opinion filed on May 1, 2015.



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         Commonwealth v. Hopkins, 117 A,3d 247, 2015 Pa,
         LEXIS 1282 (decided June 15, 2015) along with granting of
         Allocatur within Commonwealth v. Hareem Barnes,
         2015 Pa, LEXIS 2083 No, 350 EAL 2014, September 18,
         2015 is without error?

Appellant’s Brief at 4 (verbatim).

      Before we address the merits of Appellant’s claims, we must determine

whether his PCRA petition was timely.      The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).       “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”    Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the


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claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

              (i) the failure to raise the claim 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. § 9545(b)(1).            Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

       Here, Appellant’s judgment of sentence became final on April 21,

2006, when his time to petition for allowance of appeal with our Supreme

Court expired. See 42 Pa.C.S. § 9545(b)(3). Accordingly, he had until April

23, 2007 to timely file a PCRA petition.9 See 42 Pa.C.S. § 9545(b)(1). He

filed the present PCRA petition on June 24, 2014.           Thus, his petition is

____________________________________________


9
 Because April 21, 2007 fell on a Saturday, Appellant had until the following
Monday, April 23, 2007, to timely file a PCRA petition. See 1 Pa.C.S. § 1908.




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patently untimely and we must determine whether Appellant has pled and

proved any of the exceptions to the PCRA time limitation. See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).

       Appellant attempts to invoke the constitutional right exception to the

PCRA time-bar provided in § 9545(b)(1)(iii). He claims he received an illegal

mandatory minimum sentence pursuant to Alleyne v. United States,10 in

violation of a constitutional right that was newly recognized by the United

States   Supreme       Court. To     qualify   for   an exception pursuant   to   §

9545(b)(1)(iii), however, Appellant must plead and prove that this new

constitutional right has been held by the Supreme Court of the United States

or the Supreme Court of Pennsylvania to apply retroactively.             See 42

Pa.C.S. § 9545(b)(1)(iii). Because neither the Supreme Court of the United

States nor the Supreme Court of Pennsylvania has held Alleyne to apply

retroactively to matters on collateral appeal, Alleyne cannot provide

Appellant with a time-bar exception, even if properly pleaded in his petition.

See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super.2014).

(“[N]either our Supreme Court, nor the United States Supreme Court has

held that Alleyne is to be applied retroactively to cases in which the

____________________________________________


10
   ___U.S. ___, 133 S.Ct. 2151 (2013). In Alleyne, the Supreme Court of
the United States held that “[a]ny fact that, by law, increases the penalty for
a crime is an ‘element’ that must be submitted to the jury and found beyond
a reasonable doubt.” Alleyne, 133 S.Ct. at 2155.




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judgment of sentence had become final.”). Further, Appellant did not file his

PCRA petition within 60 days of the Supreme Court’s decision in Alleyne.

See 42 Pa.C.S. § 9545(b)(2) (petitions invoking exceptions must be filed

within 60 days of the date the claim could have been presented).

        Appellant attempts to overcome these jurisdictional hurdles by arguing

that the United States Supreme Court held in Montgomery v. Louisiana11

that all substantive rules are retroactive. Appellant’s Brief at 10. Appellant

filed his PCRA petition on June 24, 2014 and a pro se memo in support of his

petition on April 21, 2015.      Not only did Appellant fail to plead and prove his

retroactive argument in his PCRA petition, it would have been impossible for

him to have done so, because Montgomery was not decided until January

25, 2016.12       Moreover, Appellant is misguided.           In Montgomery, the

Supreme Court of the United States held that Miller v. Alabama’s13

prohibition    on   mandatory      life   without   parole   for   juvenile   offenders

announced a new substantive rule that, under the constitution, must be

applied retroactively. See Montgomery 136 S.Ct. at 732. It did not hold

that all substantive rules are retroactive.
____________________________________________


11
     ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed 2d 599 (2016).
12
  Likewise, Appellant cannot plead and prove that the Supreme Court of the
United States or the Supreme Court of Pennsylvania has held the right
announced in Alleyne applies retroactively by citing to cases that have not
been decided. See Appellant’s Brief at 11.
13
     ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).



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      Because Appellant failed to plead and prove any of the statutory

exceptions to the PCRA time limitation, the PCRA court correctly determined

that it lacked jurisdiction to hear this untimely PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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