J-S22009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JESSE EARL AUL

                            Appellant                 No. 1603 MDA 2015


                Appeal from the PCRA Order September 3, 2015
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001237-2009


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 04, 2016

        Appellant, Jesse Earl Aul, appeals pro se from the September 3, 2015

order, dismissing as untimely, his fourth petition for relief filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         After

careful review, we affirm.1

        We summarize the relevant procedural history of this case as follows.

On November 9, 2010, the trial court sentenced Appellant to an aggregate

sentence of 62 to 172 months’ imprisonment, followed by 5 years’ probation,

after Appellant pled guilty to one count each of aggravated indecent assault



____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    The Commonwealth elected not to file a brief in this matter.
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and corruption of minors, as well as 12 counts of indecent assault.2

Appellant filed a timely notice of appeal, and this Court affirmed on February

14, 2012.          Commonwealth v. Aul, 46 A.3d 816 (Pa. Super. 2012)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with our Supreme Court.              Appellant filed two PCRA petitions in

2012 and one in 2013. All three petitions were dismissed by the PCRA court,

and Appellant did not appeal any of the dismissal orders to this Court.

       On July 22, 2015, Appellant filed the instant PCRA petition. On August

11, 2015, the PCRA court, pursuant to Pennsylvania Rule of Criminal

Procedure 907, entered an order notifying Appellant of its intention to

dismiss his PCRA petition without a hearing. Appellant filed a timely pro se

response on August 28, 2015.               The PCRA court entered an order on

September 3, 2015, dismissing Appellant’s PCRA petition as untimely.             On

September 17, 2015, Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises the following two issues for our review.

              I.      Did the [PCRA c]ourt err when it failed to
                      review the timeliness claim and exception that
                      was raised by [Appellant] in his [pro se
                      response to the PCRA court’s Rule 907 notice],
                      when the [PCRA c]ourt deliberately thwarted


____________________________________________
2
   18 Pa.C.S.A. §§ 3125(b), 6301(a)(1), 3126(a)(2), and 3126(a)(7),
respectively.
3
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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                     the obvious and compelling merits               of
                     [Appellant]’s timely [PCRA] petition?

               II.   Did the [PCRA c]ourt err in misstating that
                     [Appellant] utilized a judicial opinion as a
                     newly discovered “fact” when instead he used
                     the “fact” of his sentence becoming illegal as
                     the newly discovered “fact” for which the
                     [PCRA] court always retains the jurisdiction
                     and inherent power to correct?

Appellant’s Brief 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.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “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.”         Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “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.”            Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      As noted above, both of Appellant’s issues on appeal address the

timeliness of his instant PCRA petition, which implicates the jurisdiction of

this Court and the PCRA court.         Commonwealth v. Davis, 86 A.3d 883,

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887 (Pa. Super. 2014) (citation omitted). Pennsylvania law makes clear that

when “a PCRA petition is untimely, neither this Court nor the trial court has

jurisdiction over the petition.”    Commonwealth v. Seskey, 86 A.3d 237,

241 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d 103 (Pa.

2014). The “period for filing a PCRA petition is not subject to the doctrine of

equitable tolling; instead, the time for filing a PCRA petition can be extended

only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86

A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted),

cert. denied, Ali v. Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord

finality to the collateral review process.”     Commonwealth v. Watts, 23

A.3d 980, 983 (Pa. 2011) (citation omitted). “However, an untimely petition

may be received when the petition alleges, and the petitioner proves, that

any of the three limited exceptions to the time for filing the petition, set

forth   at   42   Pa.C.S.A.   §    9545(b)(1)(i),   (ii),   and   (iii),   are   met.”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation

omitted). The PCRA provides, in relevant part, as follows.

             § 9545. Jurisdiction and proceedings

                                         …

             (b) Time for filing petition.—

                   (1) Any petition under this subchapter,
                   including a second or subsequent petition, shall
                   be filed within one year of the date the
                   judgment becomes final, unless the petition
                   alleges and the petitioner proves that:


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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.

                 (2) Any petition invoking an exception
                 provided in paragraph (1) shall be filed within
                 60 days of the date the claim could have been
                 presented.

                                       …

42 Pa.C.S.A. § 9545(b).

     In the instant case, Appellant was sentenced on November 9, 2010,

and this Court affirmed on February 14, 2012.       As Appellant did not seek

allocatur from our Supreme Court, his judgment of sentence became final on

March 15, 2012, when the filing period for such a petition expired. See 42

Pa.C.S.A.   § 9545(b)(3)   (stating,   “a    judgment   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

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expiration of time for seeking the review[]”); Pa.R.A.P. 1113(a) (stating, “a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days after the entry of the order of the Superior

Court … sought to be reviewed[]”). Appellant’s fourth petition was filed on

July 22, 2015, and is therefore patently untimely.         See 42 Pa.C.S.A.

§ 9545(b)(1) (stating, “[a]ny petition under this subchapter, including a

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

judgment becomes final[]”).

      However, Appellant avers that the newly-discovered fact exception

applies.   Appellant’s Brief at 15.    Our Supreme Court has previously

described a petitioner’s burden under the newly-discovered fact exception as

follows.

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the petitioner
            must establish that: 1) “the facts upon which the
            claim was predicated were unknown” and 2) “could
            not have been ascertained by the exercise of due
            diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
            added).

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in

original). “Due diligence demands that the petitioner take reasonable steps

to protect his own interests.   A petitioner must explain why he could not

have learned the new fact(s) earlier with the exercise of due diligence.   This

rule is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.

Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).


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     Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

                     The statutory exceptions to the timeliness
             requirements of the PCRA are also subject to a
             separate time limitation and must be filed within
             sixty (60) days of the time the claim could first have
             been presented. See 42 Pa.C.S.A. § 9545(b)(2).
             The sixty (60) day time limit … runs from the date
             the petitioner first learned of the alleged after-
             discovered facts. A petitioner must explain when he
             first learned of the facts underlying his PCRA claims
             and show that he brought his claim within sixty (60)
             days thereafter.

Id. (some citations omitted).     Our Supreme Court has held that Section

9545(b)(2) also requires a showing of due diligence insofar that a petitioner

must file the petition within 60 days that the claim could have first been

presented.   Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),

cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

     Instantly, Appellant argues that the United States Supreme Court’s

decision in Alleyne v. United States, 133 S. Ct. 2151 (2013) satisfies the

newly-discovered fact exception.       Appellant acknowledges that judicial

opinions are not newly-discovered facts for the purposes of Section

9545(b)(1)(ii). Appellant’s Brief at 15; see also generally Watts, supra

at 987. Instead, Appellant avers that Section 9545(b)(1)(ii) is satisfied by

“the ‘newly[-]discovered fact’ of his sentence being unconstitutional, and

therefore illegal in light of the Pennsylvania Supreme Court’s decision in

[Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)].” Id.


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      In our view, Appellant’s alleged new fact that his sentence became

unconstitutional is actually an attempt to raise an argument under the new

constitutional right exception, by merely utilizing a different label. Appellant

acknowledges that the “fact” of his illegal sentence stems from Alleyne,

which is not a fact, but a judicial decision. See Watts, supra. In Alleyne,

the Supreme Court held, as matter of federal constitutional law, “that any

fact that increases the mandatory minimum is an element [of an aggravated

offense] that must be submitted to the jury.”        Alleyne, supra at 2155

(internal quotation marks omitted).     Appellant concedes in his brief that

Alleyne does not satisfy the new constitutional right exception at Section

9545(b)(1)(iii), and he does not wish to rely on this exception. Appellant’s

Brief at 9-10; see also generally Commonwealth v. Miller, 102 A.3d

988, 994-995 (Pa. Super. 2014) (noting that Section 9545(b)(1)(iii) does

not apply to Alleyne because neither the United States Supreme Court, nor

our Supreme Court have held Alleyne to apply retroactively to cases on

collateral review).   Furthermore, Alleyne was filed on June 17, 2013,

therefore, Appellant has not complied with the 60-day rule at Section

9545(b)(2), as the instant petition was filed on July 22, 2015, over two

years after Alleyne was decided. Accordingly, Appellant has not carried his




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burden of proving that a time-bar exception applied to his petition.4   See

Bennett, supra; Williams, supra.

       Based on the foregoing, we conclude the PCRA court properly

dismissed his PCRA petition as untimely filed. Accordingly, the PCRA court’s

September 3, 2015 order is affirmed.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




____________________________________________
4
   Although Appellant is claiming his sentence is illegal, Appellant
acknowledges that this Court may correct an illegal sentence at any time
only if we have jurisdiction to do so. Appellant’s Brief at 16, quoting
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014), appeal
denied, 101 A.3d 103 (Pa. 2014). In light of our conclusion as to the
untimeliness of Appellant’s PCRA petition, neither this Court nor the PCRA
court had jurisdiction to address the merits of Appellant’s petition.



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