J-S48014-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

LARUE GRAVES

                            Appellant                  No. 1307 WDA 2015


                   Appeal from the PCRA Order July 15, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0018626-2005


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                               FILED AUGUST 22, 2016

        Acting pro se, Larue Graves appeals the order entered on July 15,

2015, wherein the trial court dismissed his second PCRA petition. We affirm.

        On October 18, 2006, Appellant was sentenced to life imprisonment

pursuant to Pennsylvania’s two strikes law, 42 Pa.C.S. § 9715,1 after a jury


____________________________________________


1
    The Sentencing Code provides in pertinent part,

        (a) Mandatory life imprisonment.-- . . .                  any person
        convicted of murder of the third degree in this Commonwealth
        who has previously been convicted at any time of murder or
        voluntary manslaughter in this Commonwealth or of the same or
        substantially equivalent crime in any other jurisdiction shall be
        sentenced to life imprisonment, notwithstanding any other
        provision of this title or other statute to the contrary.

(Footnote Continued Next Page)
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convicted him of third-degree murder in connection with the November 9,

2005, shooting death of Shelton Flowers in a Loew’s Theater in Homestead,

Pennsylvania.     This Court affirmed the judgment of sentence, and the

Supreme Court denied allowance of appeal. Commonwealth v. Graves,

961 A.2d 1275 (Pa.Super. 2008) (unpublished memorandum), appeal

denied, 963 A.2d 468 (Pa. 2009). Likewise, we affirmed the order denying

Appellant’s timely-filed first PCRA petition. Commonwealth v. Graves, 96

A.3d 1094 (Pa.Super. 2014) (unpublished memorandum), appeal denied, 95

A.3d 276 (Pa. 2014).

      Acting pro se, on November 21, 2014, Appellant filed the instant PCRA

petition   wherein      he   assailed    the     constitutionality   of   mandatory   life

imprisonment under § 9715.2 He asserted that the statute violated the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution. The

Commonwealth countered that Appellant’s claim was barred by the PCRA’s

one-year time restriction and that no exceptions to the time bar applied.


                       _______________________
(Footnote Continued)

42 Pa.C.S. § 9715. On July 12, 1994, Appellant pled guilty to voluntary
manslaughter in Allegheny County.
2
  Although the pro se PCRA petition was not entered on the trial court docket
until December 1, 2014, pursuant to the prisoner mailbox rule, we treat it as
being filed on the date that he delivered it to prison authorities for mailing.
Commonwealth v. Little, 716 A.2d 1287 (Pa.Super. 1998);
Commonwealth v. Castro, 766 A.2d 1283 (Pa.Super. 2001) (petitioner
timely filed PCRA petition when he delivered petition to prison authorities).



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The PCRA court agreed, and following notice pursuant to Pa.R.Crim.P. 907,

the PCRA court dismissed the petition without hearing. This appeal followed.

      Appellant presents the following question for our review.

      [1.] Did the [PCRA court] err in dismissing Appellant[’s] [PCRA]
      petition challenging the legality of sentence [imposed] under . . .
      42 Pa.C.S. § 9715, a statute that . . . should be declared illegal
      and unconstitutional [pursuant to Alleyne v. United States,
      133 S.Ct. 2151 (2013)].

      [2.] Did the [PCRA court] err in dismissing Appellant[’s] [PCRA]
      petition as untimely . . . when it had illegal sentence concerns,
      which are question[s] of law. The [p]etition was back in the trial
      court’s jurisdiction and should have been given a hearing?

Appellant’s brief at 4.

      We review a PCRA court order to determine whether the PCRA court’s

determination is supported by the certified record and free of legal error.

Our Supreme Court has stated, “[a]n appellate court reviews the PCRA

court's findings of fact to determine whether they are supported by the

record, and reviews its conclusions of law to determine whether they are

free from legal error."   Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014). “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.” Id.

      Appellant neglected to assert an exception to the PCRA time-bar in his

serial petition, his response to the PCRA Court’s Rule 907 notice, or the

court-ordered Rule 1925(b) statement dated November 30, 2015. However,



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Appellant did invoke the United States Supreme Court’s decision in Alleyne

v. United States, 133 S.Ct. 2151 (2013), in his Rule 1925(b) statement for

the proposition that the imposition of a mandatory life sentence under 42

Pa.C.S. § 9715 was illegal.3             Specifically, he argued “Appellant was

sentenced to life imprison under 42 Pa.C.S. § 9715, second strike, which

under the new rule in [Alleyne] is unconstitutional.”        In addressing this

assertion, the PCRA Court not only observed that Appellant’s claim was time

barred, but also accurately highlighted that Appellant’s reliance upon the

Supreme Court’s holding in Alleyne was misplaced because the fact of his

prior conviction was not required to be submitted to the jury and found

beyond a reasonable doubt before forming the basis of a mandatory

minimum sentence.4         We agree that the petition is barred by the PCRA’s

time requirements.

____________________________________________


3
  In Alleyne, the Supreme Court held that any fact, other than a prior
conviction, that results in the application of a mandatory minimum sentence
must be submitted to the jury and found beyond a reasonable doubt.
4
   The crux of Appellant’s contention is that, since § 9715 permits a judge to
determine the existence of a prior conviction by a preponderance of the
evidence, rather than requiring a jury to make the finding beyond a
reasonable doubt, the statute infringes on the precise principles that the
High Court discussed in Alleyne. Appellant is mistaken. Stated plainly, in
fashioning the rule announced in Alleyne, the Supreme Court expressly
declined to revisit its holding in Almendarez–Torres v. United States, 523
U.S. 224 (1998), wherein it endorsed the application of provisions that
increase the penalty for a crime based upon the fact of a prior conviction.
See Alleyne, supra at 2151 n.1.



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      PCRA petitions must be filed within one year of the date that the

judgment of sentence becomes final.         42 Pa.C.S. § 9545.        The time

limitations imposed by the PCRA implicate our jurisdiction and they may not

be altered or disregarded in order to address the merits of a petition. See

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(“Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition.”). Appellant’s judgment of sentence became final on April 13,

2009, ninety days after our Supreme Court denied allowance of appeal and

when the period to file a writ for certiorari with the United Stated Supreme

Court expired.     See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.

Therefore, at the latest, Appellant’s petition had to be filed by April 13 ,

2010 in order to comply with the time requirements.         Appellant’s instant

petition was filed during 2014.   Thus, unless one of the exceptions to the

one-year time bar set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies, the

petition is untimely.

      Section 9545 provides the following three exceptions that allow for

review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim

as a result of governmental interference; (2) the discovery of previously

unknown facts that could not have been ascertained by the exercise of due

diligence; and (3) a newly-recognized constitutional right that has been held

to apply retroactively.   42 Pa.C.S. § 9545 (b)(1)(i)-(iii).     To invoke an

exception, the petitioner must plead it and satisfy the burden of proof.

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Commonwealth v.        Beasley,    741    A.2d   1258,   1261-62   (Pa.   1999)

(petitioner has burden to plead and prove exceptions).       In addition, any

exception must be raised within sixty days of the date the claim could have

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

      Herein, Appellant does not specifically invoke the newly-recognized

constitutional right exception to the PCRA time requirements.      Instead, in

articulating the merits of his Sixth Amendment claim, he contends that

Alleyne rendered his mandatory sentence of life imprisonment illegal and

relies upon the oft-repeated assertion that issues regarding the legality of

sentence are not subject to waiver.      However, it is beyond argument that

this contention fails in the context of an untimely PCRA petition.         See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (although legality

of sentence is always subject to review within PCRA, claims must still first

satisfy the PCRA’s time limits or a statutory exception).    Thus, Appellant’s

assertion that he is serving an illegal sentence fails to overcome the PCRA’s

time bar.

      Moreover, even to the extent that we treat Appellant’s citation to

Alleyne as leveling a basis to circumvent the time bar, his claim fails for at

least three reasons. First, Appellant failed to plead and prove this exception

in his petition or before the PCRA court pursuant to Beasley, supra.

Second, even if we deem Appellant’s first invocation of Alleyne in his Rule

1925(b) statement as asserting the newly-recognized constitutional right

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exception under § 9545 (b)(1)(iii), Appellant still failed to satisfy the

threshold requirement of asserting the statutory exception within sixty days

of the date the claim could be presented.      See 42 Pa.C.S. § 9545(b)(2).

The United States Supreme Court decided Alleyne on June 17, 2013, and

Appellant did not reference the High Court’s holding until November 30,

2015, approximately two-and-one-half years after that case was decided.

Furthermore, Appellant’s status as a prisoner does not excuse his laxity. It

is well ensconced that the sixty-day period for a prisoner to invoke an after-

recognized constitutional right as an exception to the PCRA time bar begins

to run on the date that the underlying judicial decision is entered and not

the   date   the   decision   became    available   in   the   prison   library.

Commonwealth v. Leggett, 16 A.3d 1144, 1146-1147 (Pa.Super. 2011);

Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa.Super. 2001)

(“Neither the court system nor the correctional system is obliged to educate

or update prisoners concerning changes in case law”). Accordingly, to the

extent that Appellant attempted to circumvent the statutory time bar, his

claim fails for the foregoing procedural reasons.

      Third, assuming, arguendo, that Appellant had both pled an exception

and satisfied the threshold requirements of § 9545(b)(2), his reliance upon

Alleyne as an exception to the PCRA time bar still fails.      First, as noted,

supra, Alleyne does not apply to the § 9715 increase in sentence due to the

fact of a prior conviction. Second, pursuant to 42 Pa.C.S. § 9545 (b)(1)(iii),

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to prevail on a claim that the retroactive application of a newly-recognized

constitutional right permits review of an otherwise untimely petition,

Appellant must demonstrate that “the right asserted is a constitutional right

that was recognized by the Supreme Court of the United States or the

Supreme Court of Pennsylvania . . . and has been held by that court to apply

retroactively.” In Commonwealth v. Washington, 2016 WL 3909088 slip

op. at 16 (Pa. filed July 19, 2016), our Supreme Court recently addressed

the retroactivity of Alleyne for the purpose of post-conviction relief and

applying Teague v. Lane, 489 U.S. 288, (1989) (plurality), it held,

“Alleyne does not apply retroactively to cases pending on collateral review.”

     Since Alleyne does not apply retroactively to cases that have attained

final judgment of sentence, it cannot form the basis of an a newly-

recognized    constitutional   right   right   exception   to   the   PCRA   time

requirements under § 9545 (b)(1) (iii). Thus, the instant PCRA petition is

untimely and without any applicable exceptions to the PCRA time-bar.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2016


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