J-S20043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RICHARD A. MOTT,

                            Appellant                  No. 1536 WDA 2015


               Appeal from the PCRA Order September 22, 2015
               in the Court of Common Pleas of Crawford County
               Criminal Division at No.: CP-20-CR-0000507-2008


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED: MARCH 02, 2016

        Appellant, Richard A. Mott, appeals from the order dismissing his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. We affirm.

        The relevant facts and procedural history of this case are as follows.

On November 3, 2008, Appellant entered a guilty plea to one count each of

rape of a child and incest.1        Appellant’s conviction stems from his sexual

abuse of his then twelve-year-old daughter, who had been sexually

assaulted previously by three other men, including Appellant’s son. The plea

bargain contained no agreement as to sentencing. At the February 2, 2009

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3121(c) and 4302, respectively.
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sentencing hearing, counsel for Appellant requested that the court impose

the ten-year mandatory minimum sentence on the rape of a child count.2

The court declined, and imposed a sentence of incarceration of not less than

twenty nor more forty years on this count, with a concurrent term of not less

than two nor more than ten years on the incest count.               Appellant filed a

direct appeal challenging the discretionary aspects of his sentence, and this

Court affirmed the judgment of sentence on February 5, 2010.                    (See

Commonwealth v. Mott, No. 313 WDA 2009, unpublished memorandum at

*1-3 (Pa. Super. filed Feb. 5, 2010)).           Appellant did not file a petition for

allowance of appeal with the Pennsylvania Supreme Court.

        On July 6, 2015, Appellant filed a pro se PCRA petition.           Appointed

counsel filed an amended PCRA petition on August 12, 2015, asserting a

right to relief based on the United States Supreme Court’s decision in

Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that

facts, other than prior conviction, that mandatorily increase minimum

sentence are elements of offense and must be submitted to jury and proven

beyond reasonable doubt).           (See PCRA Petition, 8/12/15, at 7, 9).         On

August 31, 2015, the PCRA court filed a memorandum and order giving

notice of its intention to dismiss the petition without a hearing.               See




____________________________________________


2
    See 42 Pa.C.S.A. § 9718(a)(3).



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Pa.R.Crim.P. 907(1). The court entered its order dismissing the petition on

September 22, 2015. This timely appeal followed.3

        Appellant raises the following question for our review: “Whether the

[PCRA] court erred when it concluded that [A]ppellant’s motion for post

conviction collateral relief was not timely filed?” (Appellant’s Brief, at 7).4

              We begin by noting our well-settled standard of review. In
        reviewing the denial of PCRA relief, we examine whether the
        PCRA court’s determination is supported by the record and free
        of legal error. The 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. It is
        well-settled that a PCRA court’s credibility determinations are
        binding upon an appellate court so long as they are supported by
        the record. However, this Court reviews the PCRA court’s legal
        conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

        “Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it

implicates the jurisdiction of this Court and the PCRA court.” Id. (citation

omitted).

        A PCRA petition, including a second or subsequent one, must be
        filed within one year of the date the petitioner’s judgment of
        sentence became final, unless he pleads and proves one of the
____________________________________________


3
  Appellant filed a concise statement of errors complained of on appeal
contemporaneously with his notice of appeal. The PCRA court filed an
opinion on September 25, 2015. See Pa.R.A.P. 1925.
4
    The Commonwealth did not file a brief.



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       three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
       judgment becomes final at the conclusion of direct review by
       [the Pennsylvania Supreme] Court or the United States Supreme
       Court, or at the expiration of the time for seeking such review.
       42    Pa.C.S.[A.]   §    9545(b)(3).    The    PCRA’s     timeliness
       requirements are jurisdictional; therefore, a court may not
       address the merits of the issues raised if the petition was not
       timely filed. The timeliness requirements apply to all PCRA
       petitions, regardless of the nature of the individual claims raised
       therein. The PCRA squarely places upon the petitioner the
       burden of proving an untimely petition fits within one of the
       three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

       In this case, Appellant’s judgment of sentence became final on March

8, 2010, when his time to file a petition for allowance of appeal with the

Pennsylvania Supreme Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. §

9545(b)(3).5     Therefore, Appellant had one year from that date to file a

petition for collateral relief, specifically, until March 8, 2011.      See 42

Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on July

6, 2015, it is untimely on its face, and the PCRA court lacked jurisdiction to

review it unless he pleaded and proved one of the statutory exceptions to

the time-bar. See id. at § 9545(b)(1)(i)-(iii).

       Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

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5
 The last day of the appeal period fell on a Sunday. Accordingly, Appellant
had until that Monday to file a petition for allowance of appeal. See 1
Pa.C.S.A. § 1908.



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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.

Id. “If the [PCRA] petition is determined to be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

      Here, Appellant claims the benefit of a newly-recognized retroactively-

applied constitutional right to relief predicated on the United States Supreme

Court’s decision in Alleyne, supra. (See Appellant’s Brief, at 8, 11); see

also 42 Pa.C.S.A. § 9545(b)(1)(iii).      He asserts that Alleyne applies

retroactively to this case, and requests that this Court remand for re-

sentencing on the rape of a child conviction without regard to the mandatory

minimum term of incarceration. (See Appellant’s Brief, at 17).

      First, we observe that Alleyne is utterly inapplicable to this case

because the sentencing court did not sentence Appellant to the mandatory

minimum ten-year sentence on the rape of a child count. The court imposed



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a minimum sentence of twenty years, well above the mandatory minimum,

and Appellant’s claim of excessiveness failed on direct appeal.      Therefore,

Appellant’s argument based on Alleyne fails.

       Moreover, in Miller, supra, the appellant also argued the applicability

of section 9545(b)(1)(iii) to his patently untimely PCRA petition. See Miller,

supra at 993. Specifically, he averred that the Alleyne decision announced

a new constitutional right that applies retroactively to cases on collateral

review. See id. at 993-94. This Court disagreed, explaining:

             Even assuming that Alleyne did announce a new
       constitutional right, 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. This is fatal to Appellant’s argument regarding the
       PCRA time-bar. This Court has recognized that a new rule of
       constitutional law is applied retroactively to cases on collateral
       review only if the United States Supreme Court or our Supreme
       Court specifically holds it to be retroactively applicable to those
       cases.    Therefore, Appellant has failed to satisfy the new
       constitutional right exception to the time-bar.

Id. at 995-96 (quotation marks, footnote, and citations omitted); see also

Commonwealth v. Riggle, 119 A.3d 1058, 1062, 1067 (Pa. Super. 2015)

(stating “Alleyne is not entitled to retroactive effect in [the] PCRA setting”

even with a timely filed petition). Therefore, prior precedent of this Court

makes clear that claims based on retroactive application of Alleyne in the

PCRA setting fail.6
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6
  Although Appellant urges us to reconsider this precedent and to instead
apply Alleyne retroactively to cases on collateral review, (see Appellant’s
(Footnote Continued Next Page)


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      In sum, we conclude that Appellant has not met his burden of proving

his untimely petition fits within one of the three exceptions to the PCRA’s

jurisdictional time-bar.       See Jones, supra at 17.   Accordingly, the PCRA

court properly dismissed Appellant’s petition without a hearing because it is

untimely with no exception to the time-bar pleaded or proven.             See

Jackson, supra at 519.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




                       _______________________
(Footnote Continued)

Brief at 16), his request is beyond the power of this panel, which is bound by
the prior decisions of this Court. See Commonwealth v. Pepe, 897 A.2d
463, 465 (Pa. Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008), cert.
denied, 555 U.S. 881 (2008).

      Furthermore, we also note that the United States Supreme Court
decided Alleyne on June 17, 2013. Appellant filed the instant PCRA petition
more than two years later, on July 6, 2015. Therefore, Appellant has failed
to comply with the PCRA’s sixty-day rule. See 42 Pa.C.S.A. § 9545(b)(2).
Appellant’s petition would fail for this reason as well.




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