J-S46017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN SIMMONS

                            Appellant                No. 2434 EDA 2015


                   Appeal from the PCRA Order July 21, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0808801-1989


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                 FILED JUNE 07, 2016

        John Simmons appeals from the order entered July 21, 2015, in the

Philadelphia County Court of Common Pleas denying his serial petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. Simmons seeks relief from the judgment of sentence

of an aggregate term of 15 to 30 years’ imprisonment imposed on October

24, 1989, following his negotiated guilty plea, in two separate cases,1 to

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 We note that the lower court docket number for the second case, 8902-
1530, does not appear on any of the appellate paperwork. However, the
Commonwealth, like Simmons, refers to both cases and Simmons’
aggregate sentence of 15 to 30 years’ imprisonment.                      See
Commonwealth’s Brief at 2-3. Because we find Simmons’ petition was
untimely filed, and we are without jurisdiction to grant him relief, we need
not further address this apparent discrepancy.
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charges of aggravated assault, robbery, criminal conspiracy and possessing

an instrument of crime (two counts).2 The PCRA court dismissed Simmons’

petition as untimely filed.          On appeal, Simmons contends the timing

provision of the PCRA statute is unconstitutional because it bars him from

obtaining relief from an illegal sentence.       For the reasons that follow, we

affirm.

        The relevant facts and procedural history are as follows. In February

of 1988, Simmons participated in two robberies and assaults. On October

24, 1989, Simmons entered a negotiated guilty plea in both cases to the

above-stated charges.        Pursuant to the terms of the plea, the trial court

imposed a sentence of seven and one-half to 15 years’ imprisonment at each

docket, and directed the sentences to run consecutively to each other, but

concurrently to another sentence that Simmons was then serving for an

unrelated matter.        It appears the trial court imposed two mandatory

minimum sentences pursuant to 42 Pa.C.S. § 9712 (offenses committed with

firearms).3 He did not file a direct appeal.
____________________________________________


2
    See 18 Pa.C.S. §§ 2702, 3701, 903, and 907, respectively.
3
  We note that Simmons asserts the trial court imposed two mandatory
minimum sentences. While the trial court did not explicitly state it was
doing so, the certified record includes a Notice of Mandatory Minimum
Sentence Case filed by the Commonwealth at the docket number listed in
the caption of this appeal. See Notice of Mandatory Minimum Sentence
Case, 8/14/1989. Further, during the guilty plea/sentencing hearing, when
the trial court asked the prosecutor if she had anything to add other than
the recommended sentence, she replied, “Simply two mandatories. [I g]ave
(Footnote Continued Next Page)


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      Thereafter, in December of 1996, Simmons filed a pro se petition

seeking to modify his sentence or withdraw his guilty plea nunc pro tunc.

The trial court denied the petition, and this Court subsequently quashed

Simmons’ appeal. See 2718 PHL 1997.

      On February 2, 1998, Simmons filed a PCRA petition, in which he

argued trial counsel was ineffective for inducing him to enter a guilty plea.

The PCRA court dismissed the petition on October 16, 1998, and a panel of

this Court affirmed on appeal.           See Commonwealth v. Simmons, 754

A.2d 22 (Pa. Super. 2000) (unpublished memorandum).4 The Pennsylvania

Supreme Court subsequently denied allocatur review. See Commonwealth

v. Simmons, 760 A.2d 853 (Pa. 2000).

      On February 2, 2006, Simmons filed another PCRA petition, which the

PCRA court dismissed as untimely filed, and this Court affirmed, based on

Simmons’ failure to file a court-ordered Pa.R.A.P. 1925(b) statement of

errors complained of on appeal.           See Commonwealth v. Simmons, 945

A.2d 770 (Pa. Super. 2007) (Judgment Order at 3).
                       _______________________
(Footnote Continued)

the defendant a plea to two to clear out all the open cases. That’s the
reason we negotiated the sentence.”      N.T., 10/24/1989, at 23.   The
Commonwealth does not refute Simmons’ claim that he was subjected to
two mandatory minimum sentences. Therefore, for purposes of this appeal,
we will presume Simmons’ contention is correct.
4
  It merits mention that both the PCRA court and this Court agreed that
Simmons’ December 1996 post-sentence motion should have been treated
as a PCRA petition. See PCRA Court Opinion, 11/17/1998, at 2 n.1;
Simmons, supra, 754 A.2d 22 (unpublished memorandum at 2 n.1).



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       Simmons filed the present PCRA petition, pro se, on October 17, 2014.

In his petition, and accompanying Memorandum of Law, Simmons claimed

he was serving an illegal sentence pursuant to the United States Supreme

Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013),

and this Court’s decision in Commonwealth v. Newman, 99 A.3d 86, 98

(Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).5 He

also averred that his petition was timely filed pursuant to the unknown facts

exception    to   the    time-for-filing       requirements.   See   PCRA   Petition,

10/17/2014, at 3.

       On May 28, 2015, the PCRA court sent Simmons notice, pursuant to

Pa.R.Crim.P. 907, of its intent to dismiss his petition as untimely without

first conducting an evidentiary hearing. Simmons filed a pro se response, in

which he requested the court hold his PCRA petition “in abeyance” pending
____________________________________________


5
  In Alleyne, the United States Supreme Court held “[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, supra, 133 S.Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth
have determined that most of our mandatory minimum sentencing statutes
are unconstitutional because the language of those statutes “permits the
trial court, as opposed to the jury, to increase a defendant’s minimum
sentence based upon a preponderance of the evidence” standard.
Newman, supra, 99 A.3d at 98. See id. (invalidating 42 Pa.C.S. §
9712.1); Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014)
(invalidating 42 Pa.C.S. § 9712), appeal denied, 124 A.3d 309 (Pa. 2015).
Further, our courts have held that the unconstitutional provisions of the
mandatory minimum statutes are not severable from the statute as a whole.
Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015); Newman,
supra, 99 A.3d at 101.




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the outcome of two pending Supreme Court decisions, Commonwealth v.

Hopkins, and Commonwealth v. A.D.H.,6 which he claimed would be

“answering the question if Alleyne applies retroactively on collateral

review.” Response to Notice of Intent to Dismiss, 6/17/2015, at 2. Further,

Simmons asserted the PCRA court’s “application of Alleyne as applied to his

case violates [his] Sixth and Fourteenth … Amendment rights to a fair trial

and/or sentencing hearing.”         Id. at 3.    On July 21, 2015, the PCRA court

dismissed the petition, and this timely appeal followed.7

        On appeal, Simmons argues the PCRA’s timing requirements are

unconstitutional as applied because they deny him his right to due process

of law.     Specifically, he contends (1) the time bar prevents him from

obtaining relief from a “wrongful conviction” of a statute that is void ab

initio;8 (2) the reasonable doubt standard required by Alleyne should be


____________________________________________


6
  See Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), and
Commonwealth v. A.D.H., 131 A.3d 100 (Pa. Super. 2015), appeal
denied, 134 A.3d 53 (Pa. 2016). Neither of these subsequent decisions
provided Simmons with a basis for relief. The Supreme Court in Hopkins,
supra, granted the defendant relief from an illegal sentence on direct
appeal. In A.D.H., supra, a panel of this Court found the defendant’s
Alleyne claim did not meet one of the timeliness exceptions under the
PCRA, and the Supreme Court denied allocatur review.
7
 The PCRA court did not order Simmons to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
8
    Simmons’ Brief at 12 n.1.




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applied retroactively;9 (3) he has been denied his right to “petition the court

for redress of his grievances[;]”10 and (4) he has been denied his “Due

Process rights to a remedy.”11

        When considering an appeal from an order denying PCRA relief,

        [o]ur standard of review … is whether the record supports the
        PCRA court’s determination and whether the PCRA court’s
        decision is free of legal error. The PCRA court’s findings will not
        be disturbed unless there is no support for the findings in the
        certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

        Here, the PCRA court determined Simmons’ petition was untimely

filed. See PCRA Court Opinion, 8/25/2015, at 3-4. We agree. Simmons’

judgment of sentence became final on November 24, 1989, 31 days after he

was sentenced,12 and he failed to file a direct appeal.       See 42 Pa.C.S. §

9545(b).         Therefore, the instant petition filed nearly 25 years later on

October 17, 2014, was patently untimely.


____________________________________________


9
    Id. at 14.
10
     Id. at 17.
11
     Id. at 18.
12
  We note that the 30th day, November 23, 1989, was Thanksgiving, a legal
holiday. Therefore, Simmons had until Friday, November 24th to file a timely
petition. See 1 Pa.C.S. § 1908.




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      However, pursuant to 42 Pa.C.S. § 9545, an otherwise untimely

petition is not time-barred if a petitioner pleads and proves the applicability

of one of three time-for-filing exceptions:

      (i) the failure to raise the claim previously 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)(i)-(iii).      Any petition invoking one of these

exceptions must be filed “within 60 days of the date the claim could have

been presented.” Id. at § 9545(b)(2).

      In the present case, Simmons asserted, in his pro se petition, the fact

that his sentence was illegal was unknown to him until this Court issued its

en banc decision in Newman, supra, and he, thereafter, filed a petition for

relief within 60 days of the Newman decision.        However, this Court has

“expressly rejected the notion that judicial decisions can be considered

newly-discovered facts which would invoke the protections afforded by

section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.

Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013). Accordingly, Simmons




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has failed to plead and prove that his petition meets one of the time-for-

filing requirements of the PCRA.13

       The mandate of the statute is clear:

       The PCRA’s timeliness requirements are jurisdictional; therefore,
       a court may not address the merits of the issues raised if the
       petition was not timely filed. Commonwealth v. Abu–Jamal,
       574 Pa. 724, 833 A.2d 719, 723–24 (2003); Commonwealth v.
       Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000). The timeliness
       requirements apply to all PCRA petitions, regardless of the
       nature of the individual claims raised therein. Murray, at 203.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).            This includes an

Alleyne claim challenging the legality of a sentence. See Commonwealth

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

       Nevertheless, in his brief before this Court, Simmons ignores the

applicability of the timeliness exceptions, and shifts his focus to the

purported unconstitutionality of the statute. Simmons claims, “[a]s applied,

42 Pa.C.S.A. § 9543 is unconstitutional in that, it acts as a time-bar to [his]

challenge to his illegal sentence, stemming from an unconstitutional statute

(42 Pa.C.S.A. § 9712).” Simmons’ Brief at 10. Specifically, he argues the
____________________________________________


13
    We note that even if Simmons had invoked one of the remaining
timeliness exceptions, he would still be entitled to no relief. His claim does
not include any facts which could reasonably support an allegation of
“interference by government officials” pursuant to Section 9545(b)(1)(i).
Moreover, this Court has found that an Alleyne claim fails to satisfy the
“new constitutional right exception to the time-bar” codified at Section
9545(b)(1)(iii) because neither the United States or Pennsylvania Supreme
Court has held that Alleyne is to be applied retroactively. Commonwealth
v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).




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timing requirements of the PCRA violate his due process rights under both

the United States and Pennsylvania Constitutions.

         Because Simmons did not raise this constitutional challenge in either

his pro se PCRA petition or his response to the PCRA court’s Rule 907 notice,

it is waived for our review. See Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014). See also Commonwealth v. Strunk, 953 A.2d

577, 579 (Pa. Super. 2008) (“Even issues of constitutional dimension cannot

be raised for the first time on appeal.”). Moreover, it is well-settled that the

timeliness provision of the PCRA does not violate a defendant’s due process

rights     because    “the   time   for   filing   restriction   is   reasonable.”

Commonwealth v. Peterkin, 722 A.2d 638, 643 n.8 (Pa. 1998). See id.

at 643 (stating timeliness provision “strikes a reasonable balance between

society’s need for finality in criminal cases and the convicted person’s need

to demonstrate that there has been an error in the proceedings that resulted

in his conviction.”). Accordingly, Simmons’ claim, even if preserved, entitles

him to no relief.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2016


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