J-S25040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                    v.

KEVIN CEDRIC HUDSON

                          Appellant                No. 1565 WDA 2015


             Appeal from the PCRA Order September 24, 2015
                in the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0000246-2011


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED APRIL 08, 2016

      Appellant Kevin Cedric Hudson appeals from the order of the Erie

County Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. After careful review, we affirm.

      The PCRA court set forth the relevant facts and procedural history of

this matter as follows:

            On November 2, 2011, as part of a negotiated plea,
      Appellant pled guilty to two counts of [p]ossession with [i]ntent
      to [d]eliver [n]arcotics. 35 P.S. § 780-113(a)(30).

            Appellant was sentenced on December 20, 2011 by the
      Honorable Judge Michael Dunlavey to a mandatory minimum of
      four to eight years at Count Four and to a consecutive
      mandatory minimum sentence of three to six years of
      incarceration at Count Five. The mandatory minimum sentences
      were imposed pursuant to 18 Pa.C.S[]. § 7508 and based on the
      quantity of the drugs. Appellant did not file any post sentence
      motion[s] []or a direct appeal with the Superior Court.
J-S25040-16


            Appellant filed his first pro se Motion for Post Conviction
      Collateral Relief on December 21, 2012. Williams Hathaway was
      appointed as PCRA counsel and filed a “no merit” letter and
      Motion to Withdraw as Counsel on January 30, 2013. Judge
      Dunlavey dismissed the PCRA [petition] by [o]rder dated June 4,
      2013, concluding Appellant failed to set for[th] any meritorious
      claims for relief. Appellant did not appeal the [o]rder.

             On July 7, 2014, Appellant filed a second PCRA [petition],
      arguing the imposition of mandatory minimum sentences was
      illegal pursuant to Commonwealth v. Munday, 78 A.3d 661
      (Pa.Super.2013). The PCRA [petition] was dismissed by [o]rder
      dated August 6, 2014 as untimely with no relevant exception.
      Appellant did not appeal the [o]rder to the Superior Court.

            Appellant filed a third PCRA [petition], on which this appeal
      is based, on September 18, 2015, raising a number of
      undiscernible issues and reiterating the argument [that] the
      imposition of mandatory minimum sentences was illegal. The
      PCRA [petition] was denied by [o]rder dated September 24,
      2015.

            Appellant filed a [n]otice of [a]ppeal on October 5, 2012.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed November 6, 2015, pp. 1-2.

Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant raises the following issue for our review:

             Was The lower Common Pleas PCRA Court decision a small
      ‘error’ when dismissing the PCRA petition, as having “No” merits,
      without first reviewing the claim of his arguments. filed
      September 18, 2015.

Appellant’s Brief, p. 6 (verbatim).

      To the extent Appellant’s brief contains discernable arguments, it

argues (1) an illegal sentence resulted from the trial court’s imposition of a

mandatory minimum sentence despite Appellant’s zero prior record score,

and (2) his mandatory minimum sentence is illegal pursuant to Alleyne v.


                                      -2-
J-S25040-16



United States, __ U.S. __, 133 S.Ct. 2151 (2013). See Appellant’s Brief,

pp. 9-17. Appellant is not entitled to relief.

      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and 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. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      We must first consider the timeliness of the petition. “It is undisputed

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

judgment of sentence becomes final.” Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).            “This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at

651 (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, a facially untimely petition

may be received where any of the PCRA’s three limited exceptions to the

time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote

omitted). These exceptions include:




                                      -3-
J-S25040-16


      (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).    As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.      Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

      [a] petition invoking one of these exceptions must be filed 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).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).

      Finally, a heightened standard applies to a second or subsequent PCRA

petition   to   avoid   “serial     requests   for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).            “A second or

subsequent request for relief under the PCRA will not be entertained unless

the petitioner presents a strong prima facie showing that a miscarriage of

justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,


                                     -4-
J-S25040-16



1251 (Pa.2006).      Additionally, in a second or subsequent post-conviction

proceeding,   “all   issues   are   waived   except   those    which   implicate   a

defendant’s innocence or which raise the possibility that the proceedings

resulting in conviction were so unfair that a miscarriage of justice which no

civilized society can tolerate occurred”. Commonwealth v. Williams, 660

A.2d 614, 618 (Pa.Super.1995).

      Here, Appellant was sentenced on December 20, 2011.                 Because

Appellant did not file a direct appeal, his judgment of sentence became final

thirty days later, on January 19, 2012.         See 42 Pa.C.S. § 9545(b)(3).

Accordingly, Appellant had until January 19, 2013 to timely file a PCRA

petition.

      Appellant filed the instant petition, his third, on September 18, 2015,

nearly three years after the expiration of his PCRA limitations period.

Accordingly, Appellant’s petition is facially untimely.       Thus, he must plead

and prove that his petition falls under one of the Section 9545 exceptions set

forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      To overcome the PCRA’s time bar, Appellant states the following:

              The Defendant argues the following claim for review under
      exception of Newly Discovered Evidence of trial information and
      facts as to § 9543(a)(2)(vi)      On September 4, 2015, the
      defendant along with a inmate clerk at law-library SCI-Somerset
      facility was over reviewing and reading some of the defendant
      court notes and documents, and discovered that the Court never
      order a (Mandatory Presentence Investigation Report (PSR or
      PSI) most be done to any defendant under any case, by federal
      law under rules of Criminal Procedure Fed.R.Crim. 32(b)(6)(A).



                                       -5-
J-S25040-16


       Which also help the trial court got a clear time of the sentencing
       guidelines of defendant.

Amended PCRA Petition, p. 1 (verbatim).

       Appellant’s attempted invocation of the newly discovered evidence

time bar exception fails.           The trial court proceedings are not newly

discovered evidence. Appellant’s decision not to review the trial court notes

and documents until nearly four years after his sentencing does not

transform those notes into newly discovered evidence.

       To the extent Appellant’s brief suggests the Supreme Court of the

United States’ decision in Alleyne v. United States, -- U.S. ---, 133 S.Ct.

2151 (2013),1 provides a time bar exception, Appellant was required to

plead and prove such a time bar exception in his PCRA petition. See Abu-

Jamal, 941 A.2d at 1268. The PCRA petition itself includes no discussion

whatsoever of Alleyne, even though the Supreme Court of the United States

decided Alleyne over two full years before Appellant filed his PCRA petition.2

Instead, Appellant discussed Alleyne for the first time in his appellate brief.

As a result, Appellant has waived any time bar exception Alleyne could have


____________________________________________


1
  In Alleyne, the Supreme Court of the United States held that “[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, 133
S.Ct. at 2155.
2
  The Supreme Court of the United States decided Alleyne on June 17,
2013.




                                           -6-
J-S25040-16



afforded.     See   Commonwealth        v.   Burton,   936    A.2d      521,   525

(Pa.Super.2007) (“exceptions to the [PCRA] time bar must be pled in the

PCRA petition, and may not be raised for the first time on appeal”); see

also Pa.R.A.P. Rule 302(a) (issues not raised in the lower court are waived

and cannot be raised for the first time on appeal). Additionally, Appellant

failed to file the instant petition within 60 days of Alleyne, and therefore

could not rely on Alleyne for a PCRA time-bar exception. See 42 Pa.C.S. §

9545(b)(2) (petitions invoking exceptions must be filed within 60 days of the

date the claim could have been presented). Further, “neither our Supreme

Court, nor the United States Supreme Court has held that Alleyne is to be

applied retroactively to cases in which the judgment of sentence had become

final[,]” and therefore Alleyne would not have provided Appellant with a

time-bar    exception,   even    if   properly   pleaded     in   his     petition.

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

      Because Appellant did not properly plead or prove a newly-discovered

evidence time-bar exception, because Alleyne does not provide a time-bar

exception, and because Appellant’s petition neither pleads nor proves any

other time-bar exception, the petition remains time-barred.

      Additionally, Appellant’s claim that his sentence is illegal because he

received a mandatory minimum despite having a prior record score of zero

neither implicates Appellant’s actual innocence nor raises the possibility that

the proceedings were so unfair that a miscarriage of justice which no

civilized society can tolerate occurred. See Williams, supra.

                                      -7-
J-S25040-16



        Further, even if timely raised, Appellant’s underlying claims would

provide no relief. First, Appellant’s claim that the trial court erred by failing

to order a presentence investigation report prior to sentencing appellant fails

on the merits: the sentencing transcript reveals that the trial court did order

a presentence report, which the trial court reviewed and had available at

Appellant’s sentencing. See N.T. 12/20/2011, pp. 4, 9, 10, 14. Likewise,

Appellant’s claim that the trial court erred by sentencing him to a mandatory

minimum sentence when his prior record score was zero also fails on the

merits. Simply stated, where a mandatory minimum sentencing statute is

applicable, a trial court may not sentence a defendant to terms of

incarceration less than that required by a mandatory minimum statute,

regardless of the defendant’s prior record score.        See 204 Pa. Code §

303.9(h).3

        Because Appellant filed the instant PCRA petition nearly three years

after the expiration of the PCRA limitations period and cannot avail himself
____________________________________________


3
    204 Pa. Code § 303.9 provides, in relevant part:

        (h) Mandatory sentences. The court has no authority to impose a
        sentence less than that required by a mandatory minimum
        provision established in statute. When the guideline range is
        lower than that required by a mandatory sentencing statute, the
        mandatory minimum requirement supersedes the sentence
        recommendation. When the sentence recommendation is higher
        than that required by a mandatory sentencing statute, the court
        shall consider the guideline sentence recommendation.

204 Pa. Code § 303.9(h).



                                           -8-
J-S25040-16



of any time-bar exceptions, the PCRA court did not err in dismissing this

petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2016




                                  -9-
