J-S53025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LAMAR W. BROWN, JR.,

                            Appellant                No. 1920 MDA 2015


                 Appeal from the PCRA Order October 15, 2015
                In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0000140-2003


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 11, 2016

       Appellant, Lamar W. Brown, Jr., appeals pro se from the order denying

his second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       A previous panel of this Court summarized the factual and extensive

procedural history of this case as follows:

                    On December 17, 2002, Appellant and his co-
              defendant were arrested and charged for the robbery
              of three individuals of cash and jewelry in the
              Borough of Gettysburg. At the time, Appellant was
              brandishing a sawed-off shotgun. On April 7, 2003,
              Clarence E. Allen, Esquire, entered his appearance
              on behalf of Appellant. On May 19, 2003, an Order
              was entered granting Attorney Allen access to

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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          Appellant’s medical records from the Adams County
          Prison.

                On October 20, 2003, Appellant entered a plea
          of guilty to three counts of Robbery, 18 Pa.C.S.A. §
          3701. Sentencing was deferred until January 13,
          2004. At that time, the trial court was presented
          with a pre-sentence investigation report which
          contained a copy of a mental health evaluation
          performed on Appellant at the prison by Rose
          Maturo, M.S., L.P.C., dated January 6, 2004.
          Nothing therein gave any hint that Appellant was
          unable to understand due to the medication he was
          taking.FN1     Appellant was sentenced to three
          consecutive terms of imprisonment of 5-10 years.
          His request for reconsideration of sentence was
          denied on April 20, 2004. No direct appeal was filed.

                FN1: In fact, the report indicates that
                during the interview Appellant “was alert
                and oriented to person, place, and time
                and his memory and thought processes
                are intact.” Report at 2.

                Appellant filed a pro se Motion for Post-
          Conviction Collateral Relief on May 27, 2005. After
          review, the PCRA court wrote to Appellant advising
          that the issues he was raising were untimely and
          would be dismissed unless properly amended.
          Gregory Hollinger, Esquire, was appointed to
          represent Appellant.

                 On July 6, 2005, Appellant, through counsel,
          filed a Statement of Objection to Dismissal of PCRA
          Petition wherein he claimed relief because inter alia
          (1) Plea counsel failed to file a motion to withdraw
          his plea as requested, (2) Plea counsel failed to file
          an appeal from sentencing, and (3) Appellant’s guilty
          plea was involuntarily entered because Appellant was
          then taking medications that interfered with his
          ability to comprehend his decision to plead guilty.

                                      ***


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                 At a pre-hearing conference scheduled for
          January 12, 2006, the primary issue at that time was
          whether Appellant’s right to file a direct appeal from
          sentencing should be granted. If granted, all other
          post-conviction collateral claims would be stayed
          pending the outcome of the appeal, but, if denied,
          the PCRA motion would be dismissed as untimely
          filed.

                On January 12, 2006, without a hearing, the
          Commonwealth conceded the issue regarding
          Appellant’s right to appeal. Therefore, the right was
          reinstated and Appellant filed his appeal on January
          24, 2006. Seven days later, the [c]ourt directed
          Appellant to file his Statement of Matters Complained
          of on Appeal as required by Pa.R.A.P. 1925(b). That
          statement was not filed until March 10, 2006.
          Because of that late filing, [a panel of the Superior
          Court] considered all issues waived and affirmed the
          judgment of sentence on January 3, 2007. See
          Commonwealth v. Brown, 212 MDA 2006 (Pa.
          Super.    filed     Jan.   3,   2010)     (unpublished
          memorandum).

                 On October 30, 2007, Appellant filed another
          PCRA petition wherein he claimed relief on the basis
          of ineffective assistance of counsel and an invalid
          plea due to the effects of medication.      Barbara
          Entwistle, Esquire, was appointed to represent
          Appellant. She filed a Supplemental PCRA Petition
          on December 28, 2007, which she further amended
          on January 10, 2008. Essentially, the same claims
          for relief were averred as raised in 2005, with the
          addition of Attorney Hollinger’s ineffectiveness in
          filing a late Rule 1925 statement.

                                      ***

                 On November 12, 2009, the PCRA court
          entered an Opinion and Order finding Appellant’s
          initial PCRA counsel ineffective and granting
          Appellant the right to pursue his original direct
          appeal.


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                   Appellant appealed on December 10, 2009,
              and the Superior Court affirmed [his judgment of
              sentence]    on  November    15,   2010.      See
              Commonwealth v. Brown, 2119 MDA 2009 (Pa.
              Super.   filed  Nov.  15,    2010)   (unpublished
              memorandum).

                     For reasons that need not be discussed,
              Attorney Entwistle requested leave to be replaced as
              Appellant’s counsel and, on January 14, 2011,
              Stephen Maitland, Esquire, was appointed to
              represent Appellant. The Court indicated, in writing,
              to Appellant and Attorney Maitland that the case
              would proceed when they identified the issues they
              wished to pursue.[1] On August 4, 2011, Attorney
              Maitland filed a “memorandum” stating that the only
              issue being pursued concerned the validity of
              Appellant’s plea. He also indicated that he was not
              successful in obtaining York County medical records
              and, therefore, intended to claim “governmental
              interference.”

                    The lower court treated Attorney Maitland’s
              memorandum as a PCRA Petition. A hearing was
              held before this [c]ourt on October 17, 2011. At that
              time, Appellant also claimed that he was not properly
              colloquied regarding his right to a jury trial where he
              would be presumed innocent.

        On October 31, 2011, the PCRA [court] denied Appellant’s PCRA
        petition. [A] timely appeal followed.

Commonwealth v. Brown, 2045 MDA 2011, 60 A.3d 580 (Pa. Super. filed

August 24, 2012) (unpublished memorandum at 2-4.). A panel of this Court

affirmed the PCRA court’s denial of Appellant’s PCRA petition on August 24,

2012. Id.

____________________________________________


1
    The record is unclear as to what triggered the common pleas court’s action.



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      On July 9, 2015, Appellant filed a second PCRA petition.         The PCRA

court dismissed this second PCRA petition by order entered October 16,

2015. Appellant timely appealed. The trial court did not order the filing of a

Pa.R.A.P. 1925(b) statement.

      Appellant presents the following issues for our review:

      I.    Did the P.C.R.A. Court err in denying the Post Conviction
      Relief Act Petition without a hearing by misapprehending the
      retroactive application in Commonwealth v. Hopkins, 117
      A.3d 247 (2015) when [its] paradigm, Alleyne v. United
      States, 133 S.Ct. 2151 (2013) created a “substantive rule,”
      which “the Constitution requires State Collateral Review Courts
      to give retroactive effect to that rule?”

      II.    Did the P.C.R.A. Court err in denying the Post Conviction
      Relief Act Petition without a hearing when Appellant Mr. Brown
      filed the instant Post Conviction Relief Act Petition timely by filing
      within sixty (60) days of learning of the Supreme Court of
      Pennsylvania’s decision in Commonwealth v. Hopkins, 117
      A.3d 247 (2015)?

      III. Did the P.C.R.A. Court err in denying the Post Conviction
      Relief Act Petition without a hearing when Appellant Mr. Brown
      contends that through the Court’s inherent power, the P.C.R.A.
      Court always retains jurisdiction to correct his patently
      unconstitutional, and therefore illegal sentence?

Appellant’s Brief at 4.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).       The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

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Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

        A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the PCRA court

may     not   ignore   it   in   order   to    reach   the   merits   of   the   petition.

Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)). A judgment of

sentence “becomes 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. § 9545(b)(3).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed




____________________________________________


2
    The exceptions to the timeliness requirement are:

        (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;

(Footnote Continued Next Page)


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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

      As noted, following reinstatement of Appellant’s direct appeal rights, a

panel of this Court affirmed Appellant’s judgment of sentence on November

15, 2010. Commonwealth v. Brown, 2119 MDA 2009, 22 A.3d 1070, (Pa.

Super. filed November 15, 2010).                 Appellant did not file a petition for

allowance of appeal to our Supreme Court.                    Accordingly, Appellant’s

judgment of sentence became final thirty days after this Court affirmed his

judgment of sentence, when the time for seeking allowance of appeal

expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a). Thus, for purposes of

section 9545(b), Appellant’s judgment of sentence became                     final on

December 15, 2010. Therefore, Appellant had until December 15, 2011, to
                       _______________________
(Footnote Continued)

      (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), (ii), and (iii).




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file a timely petition.     Appellant did not file the instant PCRA petition until

July 9, 2015. Appellant’s instant PCRA petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

       Appellant argues that the “newly discovered fact” exception at 42

Pa.C.S. § 9545(b)(ii) applies in this case.       Appellant’s Brief at 17; PCRA

Petition, 7/9/15, at 1-2.        Appellant maintains that he “raises the ‘newly

discovered fact’ of his sentence becoming illegal in light of the Supreme

Court of Pennsylvania’s decision in Commonwealth v. Hopkins, 117 A.3d

247 (June 15, 2015).”3            Appellant’s Brief at 17 (emphasis in original).

Appellant argues that he timely invoked this exception by filing the current

PCRA petition within sixty days of the Hopkins ruling. Id. Appellant also

asserts that his sentence is “not only illegal because of the precedential

____________________________________________


3
  In Hopkins, the Supreme Court of Pennsylvania found that pursuant to
Alleyne v. United States, 133 S.Ct. 2151, 2158, (2013), the mandatory
minimum sentencing scheme set forth in 18 Pa.C.S. § 6317 (“Drug-free
school zones”) was unconstitutional in its entirety. Hopkins, 117 A.3d at
262. The appellant in Hopkins had filed a direct appeal, as his sentence
was not final at the time the Supreme Court of the United States issued its
decision in Alleyne.



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case-law of Hopkins, but because of the principles of the statute becoming

null and void based [upon] the standards set by the United States Supreme

Court in Alleyne.” Id.

       This Court has ruled that judicial decisions are not facts for purposes

of 42 Pa.C.S. § 9545(b)(1)(ii). See Cintora, 69 A.3d at 763 (“[A] judicial

opinion does not qualify as a previously unknown ‘fact’ capable of triggering

the timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA.”).

Thus, Appellant has not properly invoked the time-bar exception under 42

Pa.C.S. § 9545(b)(1)(ii).

       Additionally, we note that Appellant’s PCRA petition does not qualify

for the new constitutional right exception to the PCRA time bar under 42

Pa.C.S. 9545(b)(1)(iii).      Neither the United States Supreme Court nor the

Pennsylvania      Supreme      Court    has    determined   that   Alleyne   applies

retroactively to those whose sentences were final prior to its issuance.

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).4 Indeed,

our State Supreme Court recently held that “Alleyne does not apply

retroactively to cases pending on collateral review.”          Commonwealth v.

Washington, __ A.3d __, 2016 WL 3909088 at *8, 37 EAP 2015 (Pa. filed

July 19, 2016). As noted, Appellant’s sentence became final on December

____________________________________________


4
  In Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en
banc), we explained that Alleyne will apply to cases pending on direct
appeal as of June 17, 2013.



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15, 2010. Alleyne was decided on June 17, 2013. Therefore, Appellant’s

PCRA petition does not qualify for the new constitutional right exception to

the PCRA time bar under Alleyne. Id.

      Furthermore, the Hopkins decision did not announce a “new rule;” but

rather, it simply assessed the validity of Section 6317 under Alleyne and

concluded    that   particular   mandatory     minimum   sentencing   statute   is

unconstitutional.    Nevertheless, even if Hopkins announced a new rule,

neither our Supreme Court nor the United States Supreme Court has held

that Hopkins applies retroactively to postconviction petitioners such as

Appellant.   As noted, Appellant’s judgment of sentence became final on

December 15, 2010, and Hopkins was not decided until June 15, 2015.

Consequently, to the extent Appellant attempts to rely on Hopkins, he has

not satisfied the time-bar exception of Section 9545(b)(1)(iii).

      Appellant also contends that even if his petition was untimely filed, the

PCRA court and this Court “never relinquish jurisdiction to correct an illegal

sentence and always retains [sic] the power to do so.” Appellant’s Brief at

23 (emphasis in original). Our Court has provided the following explanation

in addressing an illegality of sentence claim in the context of an untimely

PCRA:

            A court may entertain a challenge to the legality of the
      sentence so long as the court has jurisdiction to hear the claim.
      In the PCRA context, jurisdiction is tied to the filing of a timely
      PCRA petition. . . . Although legality of sentence is always
      subject to review within the PCRA, claims must still first satisfy
      the PCRA’s time limits or one of the exceptions thereto.

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Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (internal

citations and quotation marks omitted). Because Appellant’s PCRA petition

is untimely and none of the time-bar exceptions applies, the PCRA court

lacked jurisdiction to address Appellant’s illegality of sentence claim.

      Consequently, because the PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.     See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).    Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.               See

Commonwealth        v.    Bennett,   930      A.2d   1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




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