J-S59011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HERBERT BROWN,

                            Appellant                 No. 3434 EDA 2015


             Appeal from the PCRA Order Entered October 20, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0510951-2006


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 08, 2017

        Appellant, Herbert Brown,1 appeals pro se from the October 20, 2015

order from the Court of Common Pleas of Philadelphia County, which

dismissed, as untimely, his second petition for collateral relief under the Post
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1  On November 20, 2017, Appellant petitioned this Court to order the
Commonwealth to use his full name, Herbert Dee Brown, Jr., on all future
correspondence and service, “per PA-D.O.C. mailroom dept.’s policy[,]” as
he is representing himself in the current appeal. Petition, 1/20/17, at 1. A
quick review of the D.O.C.’s website indicates that there are at least three
inmates currently serving time in Pennsylvania prisons other than Appellant,
all with the name “Herbert Brown.” Only one inmate, Appellant, is listed
under the name, “Herbert Dee Brown, Jr.,” as verified by linking that name
to the D.O.C. inmate number provided with Appellant’s previous filings in
this Court. Accordingly, we hereby grant Appellant’s petition and instruct
the Commonwealth to use Appellant’s full name when providing him service
of any filed documents or other correspondence in this case.
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Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. After careful review,

we affirm.

             On November 7, 2004[,] [Appellant] was arrested by
       Philadelphia police and charged with possession of a controlled
       substance with intent to deliver and related offenses. On August
       22, 2007, [Appellant] pled guilty to possession with intent to
       deliver. See CP-51-CR-0510951-2006 at 3. On August 22,
       2007, [Appellant] was … sentenced before the Honorable Senior
       Judge Earl W. Trent to three (3) to six (6) years[’] incarceration
       in a state correctional institute followed by 5 years of probation.
       Id.

             On April 24, 2008, [Appellant] filed for relief under the
       PCRA pro se. See CP-51-CR-0510951-2006 at 8. On January
       12, 2009 and January 16, 2009, [t]he PCRA [c]ourt denied
       [Appellant]'s first petition after an evidentiary hearing. Id. at 8.
       [Appellant] then appealed to the Superior Court for further
       review of his first PCRA petition. Id. at 9.

              On December 12, 2014, [Appellant] filed his second pro se
       petition ("the Petition") for relief under the PCRA. See CP-51-
       CR-0510951-2006 at 13. Attorney John P. Cotter was appointed
       to represent [Appellant] in this PCRA matter. On July 31, 2015,
       Mr. Cotter submitted a Finley[2] Letter to this [c]ourt in which he
       concluded that [Appellant]'s claims were without merit. Finley
       Letter at 1, 2. On September 10, 2015, this [c]ourt signed
       notice of dismissal pursuant to [Pa.R.Crim.P.] 907 after
       determining that [Appellant] was not entitled to post conviction
       relief. See CP-51-CR-0510951-2006 at 13. On September 26,
       2015 and September 30, 2015, [Appellant] filed pro se
       responses to the … Rule 907 Dismissal Notice. On September
       30, 2015, [Appellant] also filed a pro se Opposition/Response to
       the Finley Letter. On October 20, 2015, the [PCRA court]
       dismissed [Appellant]'s petition regarding the Finley Letter and
       the PCRA in its entirety following a hearing.



____________________________________________


2   Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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PCRA Court Opinion, 12/6/16, at 1-2. In the PCRA court’s October 20, 2015

order, the court also permitted Attorney Cotter leave to withdraw pursuant

to Finley.

      Appellant filed a timely pro se notice of appeal, and a timely, court-

ordered Pa.R.A.P. 1925(b) statement.        The PCRA court issued its Rule

1925(a) opinion on December 6, 2016. Appellant now presents the following

questions for our review, verbatim:

         1) Where     a   lower      court    improperly    dismissed
            defendant/appellant's P.C.R.A's newly-discovered–evidence
            supplement petition', where his claim is a time-bar
            exception?

         2) Where a lower court sentenced an appellant pursuant to a
            commonwealth request to sentence to the mandatory
            minimum by statute, is such a sentence proper in light of
            Alleyne v. United States, 133 s. ct. 2151 (2013)?

         3) Where a lower court sentences an appellant pursuant to a
            commonwealth request to the mandatory minimum is such
            a statute constitutional in light of Commonwealth v.
            Hopkins, 98 map 2015 (June 15th, 2015)?

Appellant’s Substitute Brief at 3 (unnecessary capitalization omitted).

      This Court's standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant's petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.     Commonwealth v. Bennett, 930 A.2d



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1264, 1267 (Pa. 2007).      Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

        (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:

             (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

        The trial court imposed Appellant’s judgment of sentence on August

22, 2007, and he apparently did not seek a direct appeal from that decision.

The instant PCRA petition, Appellant’s second, was filed on December 12,

2014.    Appellant’s PCRA petition is, therefore, patently untimely.      See 42


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Pa.C.S. § 9545(b)(1).        Accordingly, we cannot address the merits of

Appellant’s PCRA petition unless he meets one of the enumerated statutory

exceptions to the PCRA’s time bar set forth in Sections 9545(b)(1)(i)-(iii).

Appellant alleges that he meets either the newly-discovered-evidence

exception (Section 9545(b)(1)(ii)) or the retroactive-constitutional-right

exception (Section 9545(b)(1)(iii)).       Appellant’s Substitute Brief at 5.     For

the reasons that follow, we conclude that Appellant fails to meet both

exceptions.

       Although Appellant ostensibly raises two separate exceptions to the

PCRA’s time bar, upon further examination of the arguments presented in

his brief (Appellant’s Substitute Brief at 6-11), it is clear that Appellant is

only   raising   a   claim   which    potentially   falls   under   the   retroactive-

constitutional-right exception.      This is because the alleged newly-discovered

evidence at issue is the United States Supreme Court’s decision in Alleyne

v. United States, 570 U.S. 99 (2013), and decisions of Pennsylvania courts

implementing     Alleyne     to   render   unconstitutional     various   mandatory

minimum sentencing statutes. Accordingly, we will only address Appellant’s

claims under the framework of the retroactive constitutional right exception,

42 Pa.C.S. § 9545(b)(1)(iii).

       Subsection (iii) of Section 9545 has two requirements. First, it
       provides that the right asserted is a constitutional right that was
       recognized by the Supreme Court of the United States or this
       court after the time provided in this section. Second, it provides
       that the right “has been held” by “that court” to apply
       retroactively. Thus, a petitioner must prove that there is a
       “new” constitutional right and that the right “has been held” by

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      that court to apply retroactively. The language “has been held”
      is in the past tense. These words mean that the action has
      already occurred, i.e., “that court” has already held the new
      constitutional right to be retroactive to cases on collateral
      review. By employing the past tense in writing this provision,
      the legislature clearly intended that the right was already
      recognized at the time the petition was filed.

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

      It is true that the mandatory-minimum sentencing statute under which

Appellant was sentenced has subsequently been held to be unconstitutional

pursuant to Alleyne. See Commonwealth v. Carter, 122 A.3d 388, 393

(Pa. Super. 2015) (“[T]his Court has held that 18 Pa.C.S. § 7508, in its

entirety, is unconstitutional.”) However, our Supreme Court has specifically

held that “Alleyne does not apply retroactively to cases pending on

collateral review….” Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016); see also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa.

Super. 2015) (“Alleyne is not entitled to retroactive effect in this PCRA

setting.”). Accordingly, Appellant cannot meet any exception to the PCRA’s

time-bar. Thus, the PCRA court lacked jurisdiction to provide any relief in

this case.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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