J-S30042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN SCHRAGGER

                            Appellant                No. 2565 EDA 2015


                 Appeal from the PCRA Order August 11, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001091-2004
                                          CP-39-CR-0003747-2003
                                          CP-39-CR-0003748-2003

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

MEMORANDUM BY JENKINS, J.:                              FILED MAY 24, 2016

        Benjamin Schragger appeals from an order dismissing his petition

under the Post Conviction Relief Act (“PCRA”). We affirm.

        On August 23, 2004, Schragger pled guilty in three consolidated cases

to rape, involuntary deviate sexual intercourse, indecent assault and

corruption of minors.1         On February 16, 2005, the court imposed an

aggregate sentence of 31¼ - 62½ years’ imprisonment. Schragger did not

move to withdraw his guilty plea or file a direct appeal.

        On April 14, 2015, Schragger filed a PCRA petition alleging that his

sentence is a mandatory minimum sentence that is unconstitutional under


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1
    18 Pa.C.S. §§ 3121(c), 3123(a)(7), 3126(a)(8), and 6301(a), respectively.
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Alleyne v. United States, 133 S.Ct. 2151 (2013), and Commonwealth v.

Hopkins, 117 A.3d 247 (Pa.2015).               The PCRA court appointed counsel to

represent Schragger.        On May 27, 2015, counsel moved to withdraw and

filed a “no merit” letter advising that Schragger was not entitled to PCRA

relief.    Counsel served Schragger with a copy of the “no merit” letter and

motion to withdraw.        On June 18, 2015, the PCRA court filed a notice of

intent to dismiss Schragger’s PCRA petition and mailed this notice to

Schragger.       On August 12, 2015, the PCRA court dismissed Schragger’s

PCRA petition and denied counsel’s motion to withdraw as moot due to the

dismissal of the PCRA petition.2         Schragger filed a timely pro se notice of

appeal to this Court.          On August 31, 2015, the PCRA court ordered

Schragger to file a Pa.R.A.P. 1925(b) statement on or before September 21,

2015. On September 22, 2015, 22 days later, Schragger filed his Pa.R.A.P.

1925(b) statement.         On September 23, 2015, the PCRA court filed a

Pa.R.A.P. 1925(a) opinion.

          In this appeal, Schragger argues that his sentence is unconstitutional

under Alleyne and Hopkins.            Alleyne held that, other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory minimum must be submitted to a jury and proved
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2
  Schragger does not object to counsel’s motion to withdraw or “no merit”
letter in this appeal. Based on our Supreme Court’s instruction to avoid
raising these matters sua sponte, we will refrain from examining these
issues. See Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.2009).



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beyond a reasonable doubt. Id., 131 S.Ct. at 2160-61. Hopkins held that

18 Pa.C.S. § 6317, which required a mandatory minimum sentence if certain

controlled substance crimes occurred within 1,000 feet of a school, was

unconstitutional under Alleyne.      Schragger claims that his sentences are

unconstitutional mandatory minimum sentences because the court imposed

them without a jury and under a preponderance of the evidence standard.

      The PCRA court lacked jurisdiction to review Schragger’s Alleyne

argument under the PCRA’s one-year statute of limitations, 42 Pa.C.S. §

9545(b).    Section 9545 provides that a petition “including a second or

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

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to

hear an untimely PCRA petition.       Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa.2003)). A judgment is 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).

      Three exceptions to the PCRA’s time-bar provide for very limited

circumstances under which a court may excuse the late filing of a PCRA

petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The late

filing of a petition will be excused if a petitioner alleges and proves:


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              (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).         A petition invoking an exception to the

PCRA time bar must “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

       Schragger’s judgment of sentence became final on March 18, 2005, his

last day to file a direct appeal to the Superior Court.           The statute of

limitations for filing a PCRA petition expired on Monday, March 20, 2006.3

The present PCRA petition, which was filed on April 14, 2015, nine years

after expiration of the statute, is untimely on its face.

       None of the exceptions in section 9545(b)(i-iii) apply to this case.

Schragger does not allege that the government interference or newly

acquired evidence exceptions in section 9545(b)(i-ii) apply to his case.
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3
  The statute of limitations expired on March 20, 2006 because March 18,
2006 fell on a Saturday. See 1 Pa.C.S. 1908 (“whenever the last day of any
[time] period shall fall on Saturday or Sunday, or on any day made a legal
holiday by the laws of this Commonwealth or of the United States, such day
shall be omitted from the computation”).



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Subsection (iii) does not apply because neither the United States Supreme

Court nor the Pennsylvania Supreme Court has held that Alleyne applies

retroactively.      See also Commonwealth v. Miller, 102 A.3d 988

(Pa.Super.2014) (Alleyne does not invalidate mandatory minimum sentence

when presented in untimely PCRA petition).4

       Order affirmed. PCRA counsel granted leave to withdraw.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




____________________________________________


4
  Because the PCRA court lacked jurisdiction to review Schragger’s PCRA
petition, we need not address whether Schragger waived his Alleyne
argument by filing his Pa.R.A.P. 1925(b) statement beyond the 21-day
deadline in the PCRA court’s August 31, 2015 order.
5
  As noted above, the PCRA court denied counsel’s motion to withdraw as
moot due to its dismissal of the PCRA motion. In our view, the PCRA court
should have granted counsel’s motion to make clear that counsel was not
required to represent Schragger in this appeal or any subsequent
proceedings. Accordingly, we now grant PCRA counsel leave to withdraw
from this case.



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