J-S72038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 BRANDON DESHIELDS                       :
                                         :   No. 2119 EDA 2017
                    Appellant

                  Appeal from the PCRA Order June 1, 2017
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0002186-2012,
            CP-15-CR-0003509-2012, CP-15-CR-0004076-2012


BEFORE:    BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                  FILED DECEMBER 27, 2017

      Appellant, Brandon Deshields, appeals pro se from the order entered in

the Court of Common Pleas of Chester County dismissing his third petition

filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 as

untimely. We affirm.

      On July 17, 2013, Appellant entered into a counseled plea agreement

on three criminal information numbers. On Information numbers 2186, 3509,

and 4076 of 2012, Appellant pled guilty to six counts of Possession With Intent

to Deliver a Controlled Substance (“PWID”) in violation of 35 P.S. § 780-

113(a)(30). N.T. 7/7/13 at 1-3, 9. That same day, Appellant was sentenced

to an aggregate term of incarceration of not less than seven years nor more

than nine years, comprising a five-year mandatory minimum for PWID

committed with a firearm run consecutively to a mandatory minimum two to

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72038-17



four year sentence for PWID, which in turn was run consecutively to the

remaining four mandatory minimums for PWID. Appellant filed a counseled

post-sentence motion to withdraw his sentence, but he withdrew the motion

after a hearing on the matter. On December 24, 2013, Appellant filed a pro

se appeal to the Superior Court, but he withdrew his direct appeal on March

24, 2014.

      On April 14, 2014, Appellant filed his first PCRA petition.   Appointed

counsel eventually filed a No Merit Letter and a Petition to Withdraw as

Counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). On June 5,

2014, the PCRA court issued Pa.R.Crim.P. 907 Notice of Intent to Dismiss the

PCRA petition.    Appellant filed a pro se response, but the court granted

counsel’s motion to withdraw and dismissed the petition. Appellant appealed

to this Court, but subsequently filed an Application for Discontinuance of

Appeal, which this Court granted.

      On March 10, 2016, Appellant filed a second PCRA petition, pro se. The

Commonwealth filed a court-ordered Answer to the petition, after which the

court gave Rule 907 Notice of Intent to Dismiss. Receiving no response from

Appellant, the PCRA court dismissed Appellant’s second PCRA petition as

untimely. Appellant appealed to this Court, but, on November 3, 2016, we

dismissed the appeal for Appellant’s failure to file a brief.

      Appellant filed this, his third PCRA petition, on April 24, 2017. As with

the second, the Commonwealth filed a court-ordered Answer, the court issued

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Rule 907 Notice, and the Appellant did not respond. On June 1, 2017, the

PCRA court dismissed Appellant’s third petition. This timely appeal followed.

       Appellant presents one question for our review:

       [WERE] TRIAL COUNSEL AND POST CONVICTION COUNSEL []
       INEFFECTIVE AND WAS [APPELLANT] SENTENCED TO AND [SIC]
       ILLEGAL SENTENCE[?]

Appellant’s brief, at iii.

       We begin by noting that:

       This Court's standard of review regarding an order dismissing a
       petition under the PCRA is whether the determination of the PCRA
       court is supported by evidence of record and is free of legal error.
       In evaluating a PCRA court's decision, our scope of review is
       limited to the findings of the PCRA court and the evidence of
       record, viewed in the light most favorable to the prevailing party
       at the trial level.

Commonwealth v. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).

       In his brief, Appellant argues that his aggregate sentence was illegal

under the United States Supreme Court's decision in Alleyne v. United

States, 133 S.Ct. 2151, 2163 (2013), which held that “facts that increase

mandatory minimum sentences must be submitted to the jury” and found

beyond a reasonable doubt. As noted, Appellant received a five-year

mandatory minimum sentence under 9712.1(a) (certain drug offenses

committed with firearms)1 run consecutively to a two-year mandatory


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1
  During the execution of a search warrant on Appellant’s residence, police
recovered eight bags of marijuana weighing 169 grams, a digital scale, empty
plastic baggies, along with a shotgun and a digital scale in the master
bedroom.

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minimum sentence under 18 Pa.C.S.A. § 7508(a)(1)(i) (trafficking in

marijuana), which was run concurrently to the remaining four two-year

mandatory minimum sentences for PWID. Both of these sentencing statutes

have,    indeed,   been   declared   unconstitutional   under   Alleyne.   See

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)

(holding that 42 Pa.C.S. § 9712.1 is unconstitutional under Alleyne);

Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 2014) (applying

Newman to Section 7508).

        The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief.” 42 Pa.C.S.A. § 9542 (emphasis added). A sentence imposed

in violation of Alleyne is illegal and the issue cannot be waived, so long as

the reviewing court has jurisdiction. Commonwealth v. Wolfe, 106 A.3d

800, 801 (Pa.Super. 2014).

        The PCRA court has jurisdiction to hear PCRA petitions filed within one

year of the date the judgment becomes final. 42 Pa.C.S.A. § 9545. Hence, a

petition filed more than one year after judgment of sentence becomes final is

patently untimely, and unreviewable. However, an untimely petition may be

considered when the petition alleges, and the petitioner proves, that one of




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the three limited exceptions to the time for filing the petition set forth at 42

Pa.C.S. § 9545(b)(1) is met.2

       We must first address, therefore, whether we possess jurisdiction to

consider the merits of Appellant’s appeal.       Here, Appellant’s judgment of

sentence became final on or about March 24, 2014, when he discontinued his

direct appeal. See 42 Pa.C.S. § 9545(b)(3). See also Commonwealth v.

McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) (judgment of sentence final

for PCRA purposes when appellant discontinues direct appeal).

       Thus, Appellant had one year from that date, or until March 24, 2015,

to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). Appellant did not

file the instant petition, his third, until April 24, 2017, more than three years

after his judgment of sentence became final. Accordingly, the PCRA court had

no jurisdiction to entertain Appellant’s patently untimely petition unless he

pleaded and proved one of the three statutory exceptions to the time bar.

See 42 Pa.C.S.A. § 9545(b)(1).

       Even if we were to construe Appellant’s Alleyne-based challenge to the

legality of his sentence as also raising the argument that Alleyne qualifies



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2
  Section 9545 provides the following three exceptions that allow for review
of an untimely PCRA petition: (1) petitioner's inability to raise a claim as a
result of governmental interference; (2) the discovery of previously unknown
facts that could not have been ascertained by the exercise of due diligence;
and (3) a newly-recognized constitutional right that has been held to apply
retroactively. 42 Pa.C.S. § 9545 (b)(1)(i)-(iii).


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him for a “new constitutional right” exception under subsection 9545(b)(1)(iii)

for purposes of his case, we would find this argument unpersuasive.

      Alleyne became law on June 27, 2013, nearly one month before

Appellant pled guilty and received his sentence on July 17, 2013. Appellant,

therefore, was on notice that Alleyne was controlling law on the day of his

sentence and was also available to support a legality of sentence challenge in

post-sentence motions, direct appeal, or a timely-filed first PCRA petition.

Thus, it cannot reasonably be said that, under the timeline of this case,

Alleyne represents a newly announced constitutional right to be retroactively

applied as an exception to the PCRA time-bar.

      Our review of the record, therefore, confirms that Appellant filed the

present PCRA petition beyond the one-year PCRA deadline and failed to plead

and prove that any exception applies to his case. Accordingly, the PCRA court

had no jurisdiction to address Appellant’s petition on the merits.

      Order is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




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