J-S56015-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

LUTHER S. RYALS JR.

                            Appellant                 No. 767 EDA 2017


                 Appeal from the PCRA Order January 18, 2017
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0001198-2009


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 27, 2017

       Luther S. Ryals Jr. appeals pro se from the January 18, 20171 order

dismissing his serial PCRA petition. We affirm.

       On October 19, 2010, Appellant was sentenced to eight and one-half

to twenty years imprisonment after a jury convicted him of possession with

intent to deliver a controlled substance (cocaine), possession of a controlled

substance (cocaine), and possession of drug paraphernalia. Appellant and a

confidential informant (“CI”) had a business arrangement whereby Appellant

____________________________________________


1
   We note that Appellant established to our satisfaction that he placed his
notice of appeal in the prison mailbox on February 8, 2017, rendering this
appeal timely filed. See Smith v. Pennsylvania Bd. of Prob. & Parole,
683 A.2d 278 (Pa. 1996) (a pro se prisoner’s notice of appeal is considered
filed when he places that document in the prison’s mailbox).



* Retired Senior Judge specially assigned to the Superior Court.
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would transfer possession of cocaine to the CI, the CI would sell the cocaine

to other individuals, and the CI would then pay Appellant for the previously-

delivered cocaine.     On September 10, 2008, police conducted a controlled

buy with the CI, who gave Appellant $3,300 in marked currency to pay for a

past transfer of cocaine. In return, Appellant handed the CI 1.86 ounces of

cocaine.

     On August 31, 2011, Appellant’s judgment of sentence was affirmed,

and he did not seek further review. Commonwealth v. Ryals, 32 A.3d 848

(Pa.Super. 2011) (unpublished memorandum).          Appellant filed a timely

PCRA petition, counsel was appointed, and counsel filed a no-merit letter

and petition to withdraw. After the PCRA petition was denied and counsel

was permitted to withdraw, Appellant filed an appeal.      We affirmed the

denial of PCRA relief, and our Supreme Court denied further review.

Commonwealth v. Ryals, 62 A.3d 460 (Pa.Super. 2012) (unpublished

memorandum), appeal denied, 65 A.3d 414 (Pa. 2013).

     Appellant filed his second PCRA petition on May 28, 2015, counsel was

appointed, and counsel subsequently filed a no-merit letter and petition to

withdraw.   Counsel thereafter was permitted to withdraw, and the PCRA

court denied relief.    We affirmed, concluding that the 2015 petition was

untimely since Appellant’s judgment of sentence became final for purposes

of the PCRA on September 30, 2011, and he had until September 30, 2012,

to present a timely request for PCRA relief.     Commonwealth v. Ryals,

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2016 WL 5923443 (Pa.Super. 2016) (unpublished memorandum).            In that

appeal, Appellant raised a claim that his sentence was illegal under Alleyne

v. United States, 133 S.Ct. 2151 (2013), which rendered invalid, under the

United States Constitution, most of Pennsylvania’s mandatory minimum

statutes. We noted that Alleyne is not applied retroactively in a collateral

proceeding attacking the imposition of a mandatory minimum sentence.

See Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).

        While the appeal from the denial of his May 28, 2015 PCRA petition

was pending, Appellant filed another pro se PCRA petition on August 30,

2016.     On November 21, 2016, after the prior appeal was resolved,

Appellant resubmitted that August 30, 2016 petition. This appeal followed

dismissal of the petition as untimely filed. Appellant raises these issues for

our review:

        1. Did the Trial Court err by failing to sentence the Defendant
        under the sentencing guidelines and, in fact, by sentencing him
        well in excess of those guidelines without setting forth a legal
        standard reason for the deviation from the aggravated range,
        either on the record or in writing.

        2. Did the Trial Court err by failing to grant the Defendant's
        request for a determination of receiving the Recidivism Risk
        Reduction Incentive Program (RRRI), when Defendant was
        eligible and to modify sentence.

Appellant’s brief at 5.

        Initially, we observe, “Our standard of review of a PCRA court's

dismissal of a PCRA petition is limited to examining whether the PCRA



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court's determination is supported by the record evidence and free of legal

error.”   Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.

2016). It is axiomatic that all PCRA petitions must be filed within one year

of the date a defendant’s judgment becomes final unless an exception to the

one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1).         If a PCRA

petition is untimely, “neither this Court nor the trial court has jurisdiction

over the petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super.

2014) (citation omitted). We previously found that Appellant’s judgment of

sentence became final on September 30, 2011, and he had until September

30, 2012, to present a timely request for PCRA relief.         His 2016 PCRA

petition is untimely. While there are three exceptions to the one-year time

bar of § 9545, 42 Pa.C.S. § 9545(b)(1) (i-iii), Appellant fails to invoke any of

them. Instead, his mistaken position is that this is a direct appeal from his

judgment of sentence.     Appellant’s brief at 6.   As Appellant has failed to

invoke an exception to establish the timeliness of his latest request for PCRA

relief, we affirm.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/27/2017

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