J-S77043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN A. ROSS,

                            Appellant                 No. 120 MDA 2016


                Appeal from the PCRA Order December 21, 2015
                 in the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0004498-1997


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

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 14, 2016

        Appellant, Shawn A. Ross, appeals pro se from the order denying his

pro se petition for habeas corpus relief, properly treated as a sixth petition

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546 (PCRA) and

dismissed by the PCRA court as untimely. Appellant claims he received an

illegal sentence. We affirm.

        A jury convicted Appellant of murder of the first degree and related

offenses, on August 13, 1998.1 The next day the court sentenced him to life

imprisonment plus a term of not less than nine and a half nor more than
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*
    Retired Senior Judge assigned to the Superior Court.
1
  The jury convicted Appellant of murder of the first degree, two counts of
aggravated assault, reckless endangerment, firearms not to be carried
without a license, and possessing an instrument of crime. (See N.T. Trial,
8/13/98, at 393).
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nineteen years of incarceration.               This Court affirmed the judgment of

sentence on November 17, 1999, and on May 25, 2000, our Supreme Court

denied allowance of appeal. (See Commonwealth v. Ross, 748 A.2d 1254

(Pa. Super. 1999) (unpublished memorandum), appeal denied, 758 A.2d

1198 (Pa. 2000)).        Appellant did not petition the United States Supreme

Court for a writ of certiorari.

       In this sixth petition for post-conviction relief, filed October 2, 2015,

Appellant argues chiefly that his sentence is unconstitutional and therefore

illegal, citing, inter alia, Alleyne v. United States, 133 S. Ct. 2151 (2013).2

(See Appellant’s Brief, at 9-10).

       The PCRA court dismissed Appellant’s petition, reasoning in pertinent

part that under Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super.

2015), Alleyne did not apply retroactively on post-conviction review. (See

PCRA Court Opinion, 3/16/16, at 3). Appellant timely appealed.3

       He presents three questions for our review:

           I. Whether the [PCRA] court abused its discretion and/or
       committed an error of law when it refused to correct an
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2
  Alleyne decided that “[a]ny fact that, by law, increases the penalty for a
crime is an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Alleyne, supra at 2155 (citations omitted). From this
premise the High Court concluded that judicial fact finding that increases the
mandatory minimum sentence for a crime is not permissible under the Sixth
Amendment, overruling Harris v. United States, 536 U.S. 545 (2002).
3
  Appellant filed a timely statement of errors.            The PCRA court filed an
opinion on March 16, 2016. See Pa.R.A.P. 1925.



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      unconstitutional sentencing statue [sic] that is now void ab
      initio?

            II. Whether the Appellant has an equal protection right
      under the Fourteenth Amendment of the United States
      Constitution to a re-sentencing hearing just like those prisoner’s
      [sic] who [sic] sentences were vacated based upon
      unconstitutional statues [sic]?

            III. Whether the Writ of Habeas Corpus remains an
      available remedy under Pennsylvania Constitution and can the
      PCRA statue [sic] serve as a bar to redress of those claims when
      the PCRA offers no remedy due to a lack of jurisdiction?

(Appellant’s Brief, at 4).

      Our standard of review for an order denying PCRA relief is well-settled:

We review a PCRA court’s order to determine whether it is supported by the

evidence of record and is free of legal error. Great deference is granted to

the findings of the PCRA court, and these findings will not be disturbed

unless they have no support in the certified record. See Commonwealth

v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).

      However, a petition must be timely before the PCRA court can review

the merits of the petitioner’s claim.   “[I]f a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). The PCRA

provides that “[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[.]” 42 Pa.C.S.A. § 9545(b)(1).




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      Here, as noted, Appellant’s judgment of sentence became final on

August 23, 2000, ninety days after May 25, 2000, when the Pennsylvania

Supreme Court denied leave to appeal and Appellant did not file a petition

for a writ of certiorari with the United States Supreme Court.             See

U.S.Sup.Ct.R. 13. Therefore, Appellant had one year, until August 23, 2001

to file a timely PCRA petition.

      Appellant cannot circumvent the time constraints of the PCRA by the

expedient of labeling his petition as a request for a writ of habeas corpus.

The remedy of habeas corpus is subsumed in the PCRA.               “The action

established in this subchapter shall be the sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies for the same purpose that exist when this subchapter takes effect,

including habeas corpus and coram nobis.”               42 Pa.C.S.A. § 9542

(emphases added).

      Because Appellant did not file his current petition until October 2,

2015, over fifteen years after his judgment of sentence became final, it is

untimely on its face. Thus, he had to plead and prove that his claim falls

under one of the exceptions at section 9545(b) to establish jurisdiction for a

merit review. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that: (i) the failure to raise

the claim previously was the result of interference by government officials


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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. See id.

      Furthermore, a petitioner who wishes to invoke any of the above

exceptions must file the petition “within [sixty] days of the date the claim

could have been presented.”        Id. at § 9545(b)(2).       The Pennsylvania

Supreme Court has repeatedly stated that it is an appellant’s burden to

plead and prove that one of the above-enumerated exceptions applies. See,

e.g., Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1268 (Pa. 2008),

cert. denied, 555 U.S. 916 (2008).

      Preliminarily, in this appeal, it is important to distinguish at the outset

between claims of illegality of sentence on direct appeal, which, as Appellant

suggests, generally may not be waived, and claims of illegality of sentence

on collateral appeal, as here.

      Appellant offers that even if untimely, a petitioner’s claims will
      always be considered on the merits when the claims challenge
      the legality of the sentence. Appellant is mistaken. 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


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       exceptions     thereto.    Thus,    Appellant’s   contention    is   easily
       dismissed.

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citation omitted).

       Similarly, Appellant, citing Alleyne and other cases, erroneously

assumes that “a mandatory sentencing scheme” was applied in this case,

that the application is unconstitutional, and therefore illegal. 4          (Appellant’s

Brief, at 10). First, the PCRA court correctly determined that Alleyne does

not apply.     (See PCRA Ct. Op., at 3).5           Alleyne is not retroactive on

collateral appeal.     See Commonwealth v. Washington, 142 A.3d 810,

820 (Pa. 2016) (holding that Alleyne does not apply retroactively to cases

pending on collateral review); see also Riggle, supra at 1064.

       Appellant fails to develop any other argument that he qualifies for one

of the three statutory exceptions to the PCRA time-bar.               Accordingly, the

PCRA court correctly determined that it lacked jurisdiction to review the

merits of Appellant’s underlying claims, and properly dismissed the petition.


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4
  We note parenthetically for the sake of completeness that the question of
whether an Alleyne violation implicates the legality of a sentence and thus
renders a challenge non-waivable is currently pending before our Supreme
Court. See Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015) (per
curiam); see also Riggle, supra at 1064 (declining to apply Alleyne
retroactively to cases during PCRA review).
5
  Moreover, here, unlike Alleyne, the trial court did not engage in any
additional fact-finding; it merely applied the sentence prescribed for the
offenses of which the jury convicted Appellant.




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      Finally, as observed and argued by the Commonwealth, even if

Alleyne applied, Appellant failed to file his petition within sixty days of the

filing of the opinion. (See Commonwealth’s Brief, at 7); see also Alleyne

supra (decided June 17, 2013).        As already noted, Appellant filed his

petition on October 2, 2015, over two years later.

      Because Appellant failed to plead and prove any of the three statutory

exceptions to the PCRA time-bar, the PCRA court correctly decided it lacked

jurisdiction to review the merits of Appellant’s claims, and properly

dismissed his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2016




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