J-S06030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANDREW WITMAN

                            Appellant              No. 1450 MDA 2015


                  Appeal from the PCRA Order August 12, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005536-2011


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                       FILED FEBRUARY 11, 2016

       Appellant, Andrew Witman, appeals pro se from the August 12, 2015

order dismissing, as untimely, his petition filed pursuant to the Post

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

consideration, we affirm.

       The procedural history of this case developed as follows. On May 16,

2012, Appellant, in accordance with a negotiated plea agreement, entered a

plea of guilty to one count each of involuntary deviate sexual intercourse,

statutory sexual assault, aggravated indecent assault, unlawful contact with

a minor, corruption of minors, and intimidation of a witness.1 Appellant was

sentenced that same day in accordance with the plea agreement to an
____________________________________________
1
  18 Pa.C.S.A. §§ 3123(a)(7), 3122.1(a)(1), 3125(a)(8), 6318(a)(1),
6301(a)(1)(i), and 4952(a)(3), respectively.


*Former Justice specially assigned to the Superior Court.
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aggregate term of incarceration of 8 to 20 years followed by 5 years of

probation. Appellant did not file a post sentence motion or notice of appeal.

        Appellant filed the instant pro se PCRA petition, his first, on May 29,

2015.    Therein, Appellant claimed he was entitled to relief from an illegal

sentence in light of the recent Supreme Court case of Alleyne v. United

States, 133 S. Ct. 2151 (2013).                On June 4, 2015, the PCRA court

appointed counsel to represent Appellant. On June 10, 2015, counsel filed a

motion to withdraw together with a Turner/Finley2 letter.              On July 17,

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

Procedure 907, a notice of its intent to dismiss Appellant’s pro se PCRA

petition without a hearing due to its untimeliness, and Appellant’s failure to

plead    or   prove    an    applicable    exception   to   the   PCRA’s   timeliness

requirements. By contemporaneous order, the PCRA court granted counsel’s

motion to withdraw.         Appellant did not submit any response to counsel’s

Turner/Finley letter or to the PCRA court’s notice of intent to dismiss. The

PCRA court issued an order dismissing Appellant’s pro se PCRA petition on

August 12, 2015.        Appellant filed a timely notice of appeal on August 24

2015.3

____________________________________________
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
 The PCRA court did not require Appellant to prepare a concise statement of
errors complained of on appeal under Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court filed a Rule 1925(a) memorandum
(Footnote Continued Next Page)

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        On appeal, Appellant raises the following issue for our review.

              Did the trial court err in not correcting an illegal
              sentence?

Appellant’s Brief at 1.

        The following precepts guide our review of a PCRA court’s dismissal of

a PCRA petition. “Our standard of review of [an] order granting or denying

relief under the PCRA requires us to determine whether the decision of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.”            Commonwealth v. Melendez-

Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted).         The

timeliness of Appellant’s petition is our threshold issue “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. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015) (citations omitted).

“Under the PCRA, any petition for post-conviction relief… must be filed within

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

the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies.”4   Id.

                       _______________________
(Footnote Continued)
noting the reasons for its ruling were fully set forth in its July 17, 2015
notice of intent to dismiss.
4
    The statute sets forth those exceptions as follows.

              § 9545. Jurisdiction and proceedings

(Footnote Continued Next Page)

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“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. Miller, 102


                       _______________________
(Footnote Continued)
                                                 …

             (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.A. § 9545(b)(1).


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A.3d 988, 992-993 (Pa. Super. 2014) (internal quotation marks and citation

omitted).

      In this case, Appellant’s judgment of sentence became final on June

15, 2012, when the 30 days to file a timely notice of appeal from his

judgment    of   sentence   expired.     See   42   Pa.C.S.A.   §   9545(b)(3).

Accordingly, Appellant had until June 15, 2013, to file a timely PCRA petition

unless he could plead and prove the application of one of the listed

exceptions. See id. § 9545(b)(1). Therefore, Appellant’s May 29, 2015 pro

se PCRA petition is facially untimely, and it became incumbent upon him to

plead and prove the applicability of one or more of the enumerated

exceptions in order to invoke the jurisdiction of the PCRA court.          See

Cristina, supra.

      Instantly, Appellant does not specifically argue the applicability of an

enumerated exception under the PCRA. Rather, he claims his sentence runs

afoul of the United States Supreme Court’s June 17, 2013 decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013), and as such is

jurisdictionally unsound. Appellant’s Brief at 6. Appellant “therefore asserts,

because graduated penalties is [sic] considered, by law to be ‘elements’

illegal sentence imposed by this court is forever challengable [sic] and

cannot become valid through lapse of time.” Id. However, this Court has

rejected such arguments, which attempt to circumvent the timeliness

requirements of the PCRA.


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            [A] court may entertain a challenge to the legality of
            the sentence so long as the court has jurisdiction to
            hear the claim. In the PCRA context, jurisdiction is
            tied to the filing of a timely PCRA petition. 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 exceptions thereto.
            Pennsylvania law makes clear no court has
            jurisdiction to hear an untimely PCRA petition. Thus,
            a collateral claim regarding the legality of a sentence
            can be lost for failure to raise it in a timely manner
            under the PCRA.

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal

quotation marks and citations omitted).

      Furthermore, to the extent Appellant’s claim could be construed as

invoking a new constitutional right, this Court has held that Alleyne does

not satisfy the Section 9545(b)(1)(iii) exception to the PCRA’s one-year filing

deadline.   Specifically, we have recently held that while “Alleyne applies

retroactively on direct appeal, we have declined to construe that decision as

applying retroactively to cases during PCRA review.”      Commonwealth v.

Riggle, 119 A.3d 1058, 1064-1065 (Pa. Super. 2015). Our Supreme Court

has clearly held “that the language ‘has been held’ in 42 Pa.C.S.

§ 9545(b)(1)(iii) means that a retroactivity determination must exist at the

time that the petition is filed.”   Commonwealth v. Abdul-Salaam, 812

A.2d 497, 502, (Pa. 2002).      No such decision holding Alleyne to apply

retroactively for post-conviction collateral relief has been made. See Miller,

supra at 995 (noting it was fatal to Miller’s claimed Section 9545(b)(1)(iii)

exception that neither the United States nor the Pennsylvania Supreme

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Courts have held that Alleyne applies retroactively to cases where the

judgment of sentence is final).    Additionally, this Court, after applying the

test for retroactive application during collateral review as enunciated in

Teague v. Lane, 489 U.S. 288 (1989) (plurality), to Alleyne, has opined,

“the fundamental fairness of the trial or sentencing is not seriously

undermined, and Alleyne is not entitled to retroactive effect in [a] PCRA

setting.” Riggle, supra at 1067.

     In light of the preceding, we conclude Appellant has failed to plead and

prove the applicability of an exception to the timeliness requirements of the

PCRA, therefore, we agree with the PCRA court that his petition is untimely,

and that the PCRA court and this Court are without jurisdiction to address

Appellant’s legality of sentence claim.    See Cristina, supra;      Infante,

supra.   Accordingly, we affirm the PCRA court’s August 12, 2015 order

dismissing Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2016




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