J-S52005-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :         IN THE SUPERIOR COURT OF
                                          :               PENNSYLVANIA
             v.                           :
                                          :
KAYLON EVAN COWAN,                        :
                                          :
                   Appellant              :             No. 242 MDA 2017

            Appeal from the PCRA Order entered December 19, 2016
              in the Court of Common Pleas of Lancaster County,
              Criminal Division, No(s): CP-36-CR-0003026-2013

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED AUGUST 31, 2017

        Kaylon Evan Cowan (“Cowan”) appeals, pro se, from the Order

dismissing his first Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On July 29, 2013, Cowan was charged with one count of aggravated

assault.    See 18 Pa.C.S.A. § 2702(a)(1).     On October 3, 2013, Cowan

entered a negotiated Alford1 plea. In accordance with the negotiated plea,

the trial court sentenced Cowan to 5 to 20 years in prison,2 and imposed a

fine of $100. Cowan did not file a direct appeal.

        On September 12, 2016, Cowan filed the instant pro se PCRA Petition.

The PCRA court appointed Cowan counsel, who subsequently filed a request




1
    N.C. v. Alford, 400 U.S. 25 (1970).
2
  The trial court imposed a mandatory minimum sentence pursuant to 42
Pa.C.S.A. § 9712.
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to withdraw and a “no-merit” letter pursuant to Turner/Finley.3         Cowan

filed objections to the Turner/Finley letter. After providing a Pa.R.Crim.P.

907 Notice of Intent to Dismiss, the PCRA court granted counsel’s request to

withdraw.    Thereafter, the PCRA court dismissed Cowan’s PCRA Petition

without a hearing. Cowan filed a timely Notice of Appeal.

      On appeal, Cowan raises the following question for our review:

      I. Can a sentence that is void from imposition serve as the basis
      for finality so as to trigger the one-year limitation period of the
      PCRA?

Brief for Appellant at 4 (capitalization omitted).

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of the record. We will not disturb a PCRA
      court’s ruling if it is supported by evidence and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Under the PCRA, a defendant must file any PCRA petition within one

year of the date the judgment of sentence becomes final. See 42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence 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 the expiration of

time for seeking review. Id. § 9545(b)(3).


3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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        Here, the trial court sentenced Cowan on October 3, 2013, and Cowan

did not file a direct appeal.      Thus, Cowan’s sentence became final on

November 4, 2013.4       See 42 Pa.C.S.A. § 9545(b)(3).       Cowan had until

November 4, 2014, to file a timely PCRA petition.          Therefore, Cowan’s

September 12, 2016 Petition is facially untimely under the PCRA.

        However, in the event that a petition is not filed within the one-year

time frame, the PCRA provides three timeliness exceptions: (1) the failure

to raise the claim was the result of government interference; (2) the facts of

the new claim were unknown to the petitioner and could not have been

discovered with due diligence; or (3) the right asserted is a constitutional

right recognized by the United States Supreme Court or the Pennsylvania

Supreme Court after the time period provided in the section and has been

held to apply retroactively. Id. § 9545(b)(1)(i-iii).

        Here,   Cowan   invokes   the   newly-recognized   constitutional   right

exception, and argues that the United States Supreme Court’s decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013), renders his sentence

illegal. Brief for Appellant at 8-10. However, Alleyne was decided on June

17, 2013. Cowan filed the PCRA Petition in September of 2016, well over

sixty days after the date the claim could have been presented.          See 42

Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513,

517 (Pa. Super. 2007) (stating that “[w]ith regard to [the newly-]


4
    November 2, 2013, was a Saturday.


                                   -3-
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recognized constitutional right, this Court has held that the sixty-day period

begins to run upon the date of the underlying judicial decision.”).

      Even if Cowan had properly invoked the exception at section

9545(b)(1)(iii), the rule established in Alleyne does not apply retroactively.

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 Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014) (stating that while Alleyne claims go to the legality of the

sentence, a court cannot review a legality claim where it does not have

jurisdiction). Cowan failed to meet the third timeliness exception. Thus, the

PCRA court properly dismissed Cowan’s PCRA Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2017




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