J-S28035-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                    Appellee               :
                                           :
                      v.                   :
                                           :
RADELL N. REYNOLDS,                        :
                                           :
                    Appellant              :     No. 1538 WDA 2016

                 Appeal from the PCRA Order September 21, 2016
                in the Court of Common Pleas of Somerset County
               Criminal Division at No(s): CP-56-CR-0000762-2014

BEFORE:       OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED JULY 14, 2017

         Radell N. Reynolds (Appellant) appeals from the September 21, 2016

order dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

         On January 29, 2015, Appellant pled guilty to one count of possession

with intent to deliver drugs.      That same day the trial court sentenced

Appellant to a term of 5 to 10 years’ incarceration.    No direct appeal was

filed.

         On May 18, 2016, Appellant pro se filed the PCRA petition that is the

subject of the instant appeal. Counsel was appointed and following a rule to

show cause hearing, the PCRA court issued a notice of its intent to dismiss

the petition without a hearing pursuant to Pa.R.Crim.P. 907. On September

21, 2016, the PCRA court dismissed the petition.      Appellant timely filed a



*Retired Senior Judge assigned to the Superior Court.
J-S28035-17


notice of appeal, and both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      On appeal, Appellant challenges the PCRA court’s dismissal of his

petition averring the court erred in: (1) finding his petition was untimely

filed, and (2) determining that Appellant’s legality-of-sentence argument had

no merit. Appellant’s Brief at 6.

      Appellant’s claim that his sentence is illegal is cognizable under the

PCRA. See 42 Pa.C.S. § 9542 (“This subchapter provides for an action by

which … persons serving illegal sentences may obtain collateral relief.”).

However, any PCRA petition, including second and subsequent petitions,

must either (1) be filed within one year of the judgment of sentence

becoming final, or (2) plead and prove a timeliness exception. 42 Pa.C.S.

§ 9545(b).    The PCRA’s “[s]tatutory time restrictions are mandatory and

jurisdictional in nature, and may not be altered or disregarded to reach the

merits of the claims raised in the petition.” Commonwealth v. Taylor, 933

A.2d 1035, 1038 (Pa. Super. 2007).

      Appellant was sentenced on January 29, 2015 and he filed no direct

appeal; thus, his judgment of sentence became final on March 2, 2015.

Accordingly, Appellant had one year from that date to file timely a PCRA

petition. Therefore, the petition at issue, filed on May 18, 2016, is untimely.

      Nonetheless, Appellant argues the trial court erred in dismissing his

petition as untimely filed because the petition “alleged that Appellant is


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serving an illegal sentence.”    Appellant’s Brief at 6.    Appellant avers that

while the current law has decided that Alleyne v. United States, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013) (holding that a fact which triggers the

imposition of a mandatory minimum sentence is an element of the crime and

must, therefore, be determined beyond a reasonable doubt by a jury), does

not apply retroactively to cases pending on collateral review pursuant to

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), the issue of

retroactivity “may still be at issue and further review by our Supreme Court

may be in the near future.” Appellant’s Brief at 11.

      Despite raising a legality-of-sentence claim, Appellant’s petition is

untimely filed.   See Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.

Super. 2005) (“[A] court may entertain a challenge to the legality of the

sentence so long as the court has jurisdiction to hear the claim.”)

(emphasis added). “In the PCRA context, jurisdiction is tied to the filing of a

timely PCRA petition.”    Id. Here, Appellant’s failure to plead and prove a

timeliness exception to the PCRA’s one-year filing requirement left the PCRA

court without jurisdiction to consider his claim. See, e.g., Commonwealth

v.   Monaco,      996   A.2d    1076,   1080    (Pa.   Super.   2010)   (quoting

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000))

(noting that “the trial court has no power to address the substantive merits

of a petitioner's PCRA claims” if the petition is filed untimely).




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      Furthermore, this Court is bound by our Supreme Court’s decision in

Washington.      Thus, even if we had jurisdiction to consider the Alleyne

issue, because Alleyne does not apply retroactively to cases on collateral

review, Appellant is unable to benefit from the holdings in Alleyne and its

progeny.

      Accordingly, the lower court correctly dismissed Appellant’s untimely-

filed PCRA petition.1

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/14/2017




1
   Notably, the record reveals, and Appellant concedes that he was not
sentenced under any mandatory minimum provision. As correctly noted by
the Commonwealth, Appellant’s sentence was entered pursuant to a plea
agreement, and he received a sentence within the sentencing guidelines.
Commonwealth’s Brief at 2.          Further, the record indicates the
Commonwealth never filed a notice of its intent to seek a mandatory
minimum sentence. Thus, not only is Appellant’s petition untimely, his sole
claim on appeal has no merit.

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