J-S03039-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                   Appellee                :
                                           :
                     v.                    :
                                           :
JAMES W. CRISE,                            :
                                           :      Nos. 1183 WDA 2016
                   Appellant               :      and 1204 WDA 2016

                  Appeal from the PCRA Order July 21, 2016
           in the Court of Common Pleas of Westmoreland County
             Criminal Division at No(s): CP-65-CR-0001899-2008
                           CP-65-CR-0004502-2008

BEFORE:     OLSON, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED FEBRUARY 27, 2017

      James W. Crise (Appellant) appeals from the July 21, 2016 order which

dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

      In   2009,   Appellant   was   convicted   of   various   crimes   including

involuntary deviate sexual intercourse (IDSI). Appellant was sentenced to

an aggregate term of 20 to 55 years of imprisonment.            This Court denied

Appellant relief on direct appeal, and his judgment of sentence became final

in 2011 after our Supreme Court denied his petition for allowance of appeal.

Commonwealth v. Crise, 24 A.3d 455 (Pa. Super. 2011) (unpublished

memorandum), appeal denied, 24 A.3d 863 (Pa. 2011). Appellant’s first two

PCRA petitions resulted in no relief.



*Retired Senior Judge assigned to the Superior Court.
J-S03039-17


      Appellant filed the petition that is the subject of the instant appeal on

May 4, 2016. Therein, he claimed that he is entitled to relief in the form of

resentencing and/or a new trial.         Specifically, Appellant claimed that his

sentence is illegal under Commonwealth v. Wolfe, 140 A.3d 651, 653 (Pa.

2016) (holding 42 Pa.C.S. § 9718, the statute that provided a mandatory

minimum sentence for IDSI, is unconstitutional under Alleyne v. United

States, 133 S.Ct. 2151 (2013)).           PCRA Petition, 8/13/2015, at ¶ 5(I).

Appellant also contended that newly-discovered evidence warranted a new

trial. Id. at ¶ 5(II) and (III).

      The PCRA court issued notice of its intent to dismiss Appellant’s

petition without a hearing, as untimely filed, to which Appellant filed a

response in opposition. On July 21, 2016, the PCRA court entered an order

dismissing Appellant’s petition as untimely filed.        Appellant timely filed

notices of appeal, and both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant raises three substantive questions on appeal.         Before we

may consider them, we must determine whether the PCRA court correctly

held that his petition was untimely filed, for the timeliness of a post-

conviction petition is jurisdictional.    See, e.g., Commonwealth v. Lewis,

63 A.3d 1274, 1280-81 (Pa. Super. 2013) (quoting Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f a PCRA petition is untimely,

neither this Court nor the [PCRA] court has jurisdiction over the petition.


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Without jurisdiction, we simply do not have the legal authority to address

the substantive claims.”).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available.           42

Pa.C.S. § 9545(b).

      It is clear that Appellant’s 2016 petition is facially untimely: his

judgment of sentence became final in 2011.         Yet, in his brief, Appellant

offers no discussion of any timeliness exception.       Rather, he argues the

merits of his underlying claims. This Court’s admonitions in Appellant’s prior

appeal are equally applicable here:

      [Appellant] cannot prevail on this appeal because he has failed
      to plead and prove in his brief that any timeliness exception
      applies. … [Appellant’s] brief focuses solely upon the merits of
      his underlying claims for PCRA relief. We cannot reach those
      arguments if we lack jurisdiction to do so, and it is [Appellant’s]
      burden to establish that jurisdiction. Moreover, he plainly was
      on notice of his timeliness problem, because the PCRA court
      provided a lengthy, careful review of the foundation for an
      exception provided by [Appellant], concluding only after
      considerable analysis that [Appellant] had failed to establish that
      an exception applied. It was incumbent upon him to address
      that issue in his brief to this Court. [Appellant’s] failure to do so
      leaves us with no choice but to conclude that [his] instant PCRA
      petition was untimely and not subject to any exception.
      Consequently, the PCRA court and this Court lack jurisdiction to
      review its merits.



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Commonwealth v. Crise, 134 A.3d 490 (Pa. Super. 2015) (unpublished

memorandum at 9-10) (emphasis in original; footnote and citation omitted).

      Appellant again has not even attempted to meet his burden of

convincing this Court that he is entitled to relief.1    Commonwealth v.

Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (“It is an appellant’s burden to

persuade us that the PCRA court erred and that relief is due.”);

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (“We

emphasize that it is the petitioner who bears the burden to allege and prove

that one of the timeliness exceptions applies.”).     This Court still will not

make Appellant’s arguments for him. Commonwealth v. Hardy, 918 A.2d

766, 771 (Pa. Super. 2007) (“This Court will not act as counsel and will not

develop arguments on behalf of an appellant.”).

      Order affirmed.




1
  In his reply brief, Appellant contends that our Supreme Court’s decision in
Wolfe is to be applied retroactively.          Appellant’s Reply Brief at 1
(unnumbered). Assuming that this is an attempt to invoke the timeliness
exception for newly-recognized, retroactively-applicable constitutional rights,
it fails. The Wolfe Court did not recognize a new constitutional right, let
alone hold that any such right applied retroactively; rather, it merely applied
Alleyne to hold that a particular mandatory minimum sentence was
unconstitutional. Furthermore, our Supreme Court has held that Alleyne
itself does not apply retroactively to cases on collateral review.
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2017




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