J-S96033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CHINELLO ANDRE BLASKI

                        Appellant                   No. 900 WDA 2016


             Appeal from the PCRA Order Dated May 19, 2016
              In the Court of Common Pleas of Mercer County
            Criminal Division at No(s): CP-43-CR-0000006-2003
                                        CP-43-CR-0000895-2003

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                        FILED FEBRUARY 9, 2017

      Appellant, Chinello Andre Blaski, appeals from the order dismissing his

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

      In its opinion, entered August 1, 2016, the PCRA court fully and

correctly set forth the relevant facts and procedural history of this case, as

follows:

      At [Docket] No. [CP-43-CR-0000006-2003], [Appellant] pled
      guilty on September 8, 2003, to Former Convict Not to Possess a
      Firearm, a felony of the second degree. The charge arose out of
      a search of [Appellant’s] residence in connection with a shooting
      on September 24, 2002, that [Appellant] was involved in. The
      gun found during the search was not the same gun used in the
      shooting.

      At [Docket] No. [CP-43-CR-0000895-2003], [Appellant] pled
      guilty on October 15, 2003, to Aggravated Assault, a felony of
      the second degree, and Criminal Trespass, a felony of the second
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     degree. The charges arose out of an incident on September 25,
     2002, where [Appellant] broke into a person’s home and shot
     the homeowner after the owner discovered him. [Appellant], at
     the time, was an inmate in the Community Corrections Center,
     serving a sentence imposed for the crimes of Burglary and
     Robbery.

     [Appellant] was sentenced on November 5, 2003. At [Docket]
     No. 6[-]2003, [Appellant] received a sentence of imprisonment
     of not less than 27 months nor more than 120 months
     consecutive to any existing sentence. The sentence is in the
     aggravated range of the Sentencing Guidelines.1 At [Docket]
     No. 895[-]2003, [Appellant] was sentenced to a term of
     imprisonment of not less than 5 years nor more than 10 years,
     consecutive to the sentence at [Docket] No. 6[-]2003. The
     sentence is above the Sentencing Guidelines.2 [Appellant] was
     sentenced to a term of imprisonment of not less than 1 year nor
     more than 5 years on the charge of Criminal Trespass,
     consecutive to the sentence for Aggravated Assault.          The
     sentence is in the standard range of the Sentencing Guidelines.3
          1
            The offense gravity score is 7 and the prior record
          score is 3. The standard range is 15 to 21 months,
          with the mitigated and aggravated ranges being plus
          or minus 6 months.
          2
            The offense gravity score is 8 and the prior record
          score is 3. The standard range is 18 to 24 months,
          with the mitigated range and aggravated ranges
          being plus or minus 9 months.
          3
            The offense gravity score is 4 and the prior record
          score is 3. The standard range is 3 to 14 months.

     None of the sentences involved a mandatory sentence.

     A timely post-sentence motion was filed challenging the
     sentence on the grounds it was manifestly excessive. It was
     denied without a hearing on November 7, 2003.

     In the appeal from the denial of the post-sentence motion at No.
     2113 WDA 2003 on July 28, 2004, a panel of [t]he Superior
     Court affirmed the judgment of sentence in a Memorandum
     Opinion.

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      On March [22], 2016, [Appellant] filed a pro se PCRA Petition.
      . . . Counsel was appointed to represent the defendant.

      A conference was held on April 25, 2016. Counsel indicated the
      petition would not be amended.

      That same date, this Court filed a Notice of Intention to Dismiss.
      On May 19, 2016, an Order was entered denying the petition
      without a hearing. This appeal followed.

PCRA Ct. Op., 8/1/16, at 1-3.

      Appellant’s sole issue, as stated in his brief, is as follows:

      Whether the Trial Court erred in denying the Appellant’s PCRA
      petition alleging that the sentences he received were unlawful?

Appellant’s Brief at 4.        However, we do not reach this issue, because

Appellant’s PCRA petition was filed beyond the time limits set forth in the

PCRA and, therefore, the PCRA court lacked jurisdiction to consider the

petition.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA 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, 191-92 (Pa. Super. 2013) (citations and internal quotation marks

omitted).


      The   timeliness    of    a   post-conviction   petition   is    jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).


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Generally, a petition for relief under the PCRA must be filed within one year

of the date the judgment of sentence is final, unless the petition alleges and

the petitioner proves one of the three exceptions to the time limitations for

filing the petition set forth in Section 9545(b) of the statute. See 42 Pa.C.S.

§ 9545(b).1 A judgment is deemed 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

review.” Id. § 9545(b)(3). A PCRA petition invoking one of the statutory

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

been presented.” Hernandez, 79 A.3d at 651-52; see also 42 Pa.C.S. §

9545(b)(2).


____________________________________________


1
    The three 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;

        (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).



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        Here, Appellant’s judgment of sentence became final on August 27,

2004, when the 30 days for filing a petition for allowance of appeal to the

Supreme       Court    of    Pennsylvania      expired.      See      Pa.R.A.P.    1113;

Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008).                               Thus,

generally, Appellant would have had to file a PCRA petition by August 29,

2005.2     This petition, filed on March 22, 2016, more than a decade after

Appellant’s judgment of sentence became final, was therefore patently

untimely unless Appellant pleaded and proved one of the three statutory

exceptions to the PCRA’s jurisdictional time-bar within “60 days of the date

the claim could have been presented.” Hernandez, 79 A.3d at 651-52; see

also 42 Pa.C.S. § 9545(b)(2).

        In the PCRA court, Appellant attempted to avoid the time-bar by

asserting     the     “new   constitutional      right”   exception    under      Section

9545(b)(1)(iii).      See PCRA Pet., 3/22/16, at 2; Pet’r’s Br. in Supp. of

P.C.R.A. Pet., 3/22/16, at 2.3         Specifically, Appellant claimed that:        “The

United States Supreme Court has recently made a definitive determination

that the Unconstitutionality of Mandatory and/or enhanced sentences

____________________________________________


2
  While one year after the expiration of Appellant’s period to file a petition
for allowance of appeal to the Supreme Court of Pennsylvania expired
August 27, 2004, that day was a Saturday; therefore, Appellant had until
the end of the next business day thereafter, August 29, 2005, to file his
petition. 1 Pa.C.S. § 1908.
3
    Appellant makes no timeliness argument in his brief to this Court.



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J-S96033-16


must be given retroactive effect on State Collateral review.”    PCRA Pet.,

3/22/16, at 3 (emphasis in original) (citing Alleyne v. United States, 133

S.Ct. 2151 (2013) (mandatory minimum sentence is unconstitutional unless

all facts that increase the sentence are proven to a jury beyond a reasonable

doubt); and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (requiring

retroactive application of holding in Miller v. Alabama, 132 S. Ct. 2455,

2460 (2012), “that mandatory life without parole for those under the age of

18 at the time of their crimes violates the Eighth Amendment’s prohibition

on ‘cruel and unusual punishments’”)).

     However, Appellant’s claim fails for three reasons. First, Alleyne was

decided on June 17, 2013, and Appellant did not file his current PCRA

petition until March 22, 2016 — more than two years later.         Appellant

therefore failed to meet the requirement that he file his PCRA petition

“within 60 days of the date the claims could have been presented.”        42

Pa.C.S. § 9545(b)(2).     Second, Alleyne does not apply retroactively to

cases such as Appellant’s, where the judgment of sentence became final

prior to the Alleyne decision. Commonwealth v. Washington, 142 A.3d

810, 820 (Pa. 2016) (“Alleyne does not apply retroactively to cases pending

on collateral review”).   And third, even if Appellant had met the 60-day

requirement and even if Alleyne applied retroactively here, Appellant would

not qualify for an Alleyne challenge, because Appellant did not receive any

mandatory minimum sentences.


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       The only United States Supreme Court decision upon which Appellant

relies that was decided less than 60 days prior to the filing of Appellant’s

current PCRA petition4 is Montgomery, 136 S. Ct. 718 (Jan. 25, 2016), as

revised, Jan. 27, 2016. Appellant argues that Montgomery held that all

rulings of a substantive nature must be given retroactive effect on collateral

review in all state cases. Appellant’s Brief at 8. Appellant continues that,

since the rulings in Alleyne are of a substantive nature, then Alleyne must

be given retroactive effect on collateral review.   Id.   This argument has

already been rejected by our Supreme Court. See Washington, 142 A.3d

at 813-15, 818, 820. Having discerned no abuse of discretion or error of law,

we affirm the order below.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




____________________________________________


4
 Sixty days prior to the filing of Appellant’s PCRA petition was January 22,
2016.



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