J-S31041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES B. CUNNINGHAM A/K/A                  :
    FRANK FLUELLEN,                            :
                                               :   No. 3487 EDA 2017
                             Appellant         :

                Appeal from the PCRA Order September 28, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0301241-2000,
                            CP-51-CR-0301251-2000


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 17, 2018

        Appellant, James B. Cunningham a/k/a Frank Fluellen, appeals pro se

from the Order dismissing as untimely his sixth Petition filed pursuant to the

Post-Conviction Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541-46. We affirm.

        On May 3, 2001, the court sentenced Appellant to an aggregate term of

40 to 80 years’ incarceration after a jury convicted him of Burglary, Criminal

Conspiracy, and Robbery. This Court affirmed, and the Pennsylvania Supreme

Court denied allocatur on March 26, 2003. Commonwealth v. Cunningham,

820 A.2d 703 (Pa. 2003). Appellant did not seek a writ of certiorari from the

United States Supreme Court. His Judgment of Sentence, thus, became final

on June 24, 2003.1

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1   See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.
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       Appellant subsequently filed five unsuccessful PCRA Petitions. On June

9, 2014, he filed the instant pro se Petition, his sixth, challenging the legality

of his sentence pursuant to Alleyne v. United States, 133 S.Ct. 2151

(2013).2    On August 21, 2015, Appellant filed a “Supplemental Amended

Petition for Writ of Habeas Corpus,” which the court properly treated as an

amended PCRA Petition,3 again raising his Alleyne issue. On July 21, 2017,

the PCRA court issued a Pa.R.Crim.P. 907 Notice of Intent to dismiss the

Petition without a hearing. Appellant responded, requesting a hearing. On

September 28, 2017, the PCRA court dismissed the Petition without a hearing.

       Appellant timely appealed.        The PCRA Court did not order Appellant to

file a Pa.R.A.P. 1925(b) Statement. The court filed a Rule 1925(a) Opinion.

       Appellant raises the following two issues in his Brief:

       1. Whether the trial court abused its discretion in dismissing
       Appellant’s Petition for Habeas Corpus relief since his confinement
       is based on a PCRA proceeding that denied due process?




____________________________________________


2 In a decision issued on June 17, 2013, the Alleyne Court 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 beyond a reasonable doubt. Id., 133 S.Ct. at 2160-61.

3 See 42 Pa.C.S. § 9542; Commonwealth v. Peterkin, 722 A.2d 638, 640
(Pa. 1998) (observing that “the PCRA subsumes the remedy of habeas corpus
with respect to remedies offered under the PCRA” and the writ of habeas
corpus “continues to exist only in cases in which there is no remedy under the
PCRA.”).



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      2. Whether Appellant’s sentence is a nullity since the mandatory
      sentence Statute in Pennsylvania have been ruled facially
      unconstitutional?

Appellant’s Brief at 3 (verbatim).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to consider his PCRA Petition. See

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that

the timeliness of a PCRA Petition is a jurisdictional requisite).

      Under the PCRA, any 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).      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). The

PCRA’s timeliness requirements are jurisdictional in nature, and a PCRA court

may not address the merits of the issues raised if the petitioner did not timely

file the PCRA petition. Commonwealth v. Albrecht, 994 A.2d 1091, 1093

(Pa. 2010).

      The instant Petition, filed over 10 years after Appellant’s Judgment of

Sentence became final, is patently untimely.          Pennsylvania courts may

consider an untimely PCRA petition, however, if the petitioner pleads and

proves one of the three exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). In arguing that his sentence is illegal pursuant to Alleyne, Appellant


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relies on 42 Pa.C.S. § 9545(b)(1)(iii).4 For a petitioner to avail himself of one

of the exceptions, he must file his Petition within 60 days of the date the claim

could have been presented. See id. at Section 9545(b)(2).5

       We note that as long as this Court has jurisdiction over the matter, a

legality   of   sentencing     issue   is      reviewable   and   cannot   be   waived.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007). Thus, a

legality of sentencing issue must be raised in a timely filed PCRA Petition over

which we have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v.

Fahy, 737 A.2d 214, 223 (Pa. 1999) (“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.”); Commonwealth v. Miller,

102 A.3d 988, 995-96 (Pa. Super. 2014) (explaining that the decision in


____________________________________________


4 Section 9545(b)(1)(iii) allows review of an untimely PCRA Petition if “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)(iii).

5 We note that Appellant has included an argument in his pro se Brief
pertaining to newly discovered facts, the exception provided in Section
9545(b)(1)(ii). This is the same argument he presented in a prior PCRA
Petition, which the PCRA Court determined was meritless and this Court
affirmed on the basis that it did not meet the requirements of the Section
(b)(1)(ii) timeliness exception. See Commonwealth v. Fluellen, 1492 EDA
2012 (Pa. Super. filed June 3, 2013). The argument continues to fail to satisfy
that timeliness exception. Moreover, claims previously raised and litigated
are not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(3). In addition,
subsection (b)(1)(ii) was not the section under which the instant PCRA Petition
was filed; thus, even if this claim had not already been reviewed, it would be
waived. See Pa.R.A.P. 302(a)(“issues not raised in lower court are waived”).

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Alleyne does not invalidate a mandatory minimum sentence when presented

in an untimely PCRA Petition).

      In the instant case, if Appellant had been sentenced to a mandatory

minimum sentence, he would have had to raise his Alleyne claim in a PCRA

Petition filed by August 16, 2013, pursuant to 42 Pa.C.S. §9545(b)(2).

Appellant filed the instant Petition on June 9, 2014, nearly 10 months too late.

      Moreover, even if Appellant had timely filed his Alleyne claim,

Appellant’s claim would merit no relief. Our Supreme Court recently reiterated

that Alleyne does not apply retroactively on post-conviction collateral review.

See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

       Because Appellant’s PCRA Petition fails to meet any of the timeliness

exceptions and his legality of sentence claim is not reviewable retroactively,

the PCRA court properly concluded it was without jurisdiction to address the

merits of Appellant’s Petition.

      This Court is, likewise, without jurisdiction. We, thus, affirm the PCRA

court’s Order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/18

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