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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                                          :
            v.                            :
                                          :
JUSTIN BRENNER,                           :
                                          :
                   Appellant              :     No. 95 MDA 2016

                Appeal from the PCRA Order December 10, 2015
               In the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0000656-2011

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                       FILED SEPTEMBER 26, 2016

      Appellant, Justin Brenner, appeals pro se from the Order entered in

the Lebanon County Court of Common Pleas dismissing his second Petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546, as untimely.      After careful review, we affirm on the basis that

Appellant’s PCRA Petition is untimely and that this Court lacks jurisdiction to

review the Petition.

      On April 20, 2012, Appellant entered an open guilty plea to one count

each of Involuntary Deviate Sexual Intercourse with a Child, Attempted

Involuntary Deviate Sexual Intercourse with a Child; Indecent Assault of a
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Person Less Than 13 Years of Age, and Corruption of Minors.1               On

September 13, 2012, the trial court imposed an aggregate term of 10 to 20

years’ incarceration. Appellant did not file a direct appeal. His Judgment of

Sentence, therefore, became final on October 15, 2012.2 See 42 Pa.C.S. §

9545(b)(3).

        Appellant filed his first PCRA Petition on September 16, 2013.     On

January 15, 2014, the PCRA court denied Appellant’s first PCRA Petition

following a hearing. Appellant did not file a direct appeal.

        Appellant filed the instant pro se PCRA Petition, his second, on

September 24, 2015, claiming his sentence is illegal. On October 19, 2015,

the Commonwealth filed a response. On November 5, 2015, the PCRA court

issued a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to dismiss

his Petition, noting that it lacked jurisdiction to consider Appellant’s

underlying claim because the Petition was not timely filed, and Appellant had

failed to plead and prove a timeliness exception.     Appellant filed a pro se

Response on November 27, 2015.




1
 18 Pa.C.S. § 3123(b); 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 3126(a)(7); 18
Pa.C.S. § 6301(a)(1), respectively.
2
    October 13, 2012, was a Saturday. See 1 Pa.C.S. § 1908.



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      On December 10, 2015, the PCRA court dismissed Appellant’s Petition

without a hearing. Appellant filed a pro se Notice of Appeal on January 11,

2016.3 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents three issues for our review:

      I. Did the P.C.R.A. Court err in denying the Post Conviction Relief
      Act Petition without a hearing by misapprehending the
      retrospective application in Commonwealth v. Hopkins, 117 A.3d
      247 (2015) when it’s [sic] paradigm, Alleyne v. United States,
      133 S.Ct. 2151 (2013) created a “substantive rule,” which “the
      Constitution requires State Collateral Review Courts to give
      retroactive effect to that rule?”

      II. Did the P.C.R.A. Court err in denying the Post Conviction
      Relief Act Petition without a hearing when [Appellant] filed the
      instant Post Conviction Relief Act Petition timely by filing within
      sixty (60) days of learning of the Supreme Court of
      Pennsylvania’s decision in Commonwealth v. Hopkins, 117 A.3d
      247 (2015)?

      III. Did the P.C.R.A. Court err in denying the Post Conviction
      Relief Act Petition without a hearing when [Appellant] contends
      that through the Court’s inherent power, the P.C.R.A. Court
      always     retains   jurisdiction    to   correct his   patently
      unconstitutional, and therefore illegal sentence?

Appellant’s Brief at 4.

3
  Appellant avers that he delivered his Notice of Appeal to prison officials on
January 11, 2016, which would be timely. Although Appellant has not
submitted a cash slip, postmark, or other written verification, we note that
Appellant’s Notice of Appeal was received and docketed by the lower court
on January 14, 2016, which indicates that he did, in fact, deliver the Notice
of Appeal to prison officials several days earlier. Accordingly, we conclude
that Appellant’s Notice of Appeal was timely filed under the Prisoner Mailbox
Rule. See Pa.R.A.P. 121(a); Commonwealth v. Patterson, 931 A.2d 710,
714 (Pa. Super. 2007) (noting that even without a postmark definitively
noting the date of mailing, quashal may be avoided where the date of
receipt indicates that appellant likely placed the notice of appeal in the
hands of prison officials before the expiration of 30 days).



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      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 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 the review.” 42 Pa.C.S. § 9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).



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      Here, Appellant’s Judgment of Sentence became final on October 15,

2012, upon expiration of the time to file a Notice of Appeal with the

Pennsylvania Superior Court. See 42 Pa.C.S. § 9545(b)(3). In order to be

timely, Appellant needed to submit his PCRA Petition by October 15, 2013.

Id. Appellant filed this PCRA Petition on September 24, 2015, well after the

one-year deadline.    The PCRA court properly concluded that Appellant’s

Petition is facially untimely. PCRA Court Opinion, filed 12/10/15, at 4-5.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

      (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.




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       (2) Any petition invoking an exception provided in paragraph (1)
       shall be filed within 60 days of the date the claim could have
       been presented.

42 Pa.C.S. § 9545(b)(1)-(2).     See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).

       Appellant attempts to invoke the timeliness exception under Section

9545(b)(1)(iii) in his challenge to the legality of his sentence, relying on

Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).              As

long as this Court has jurisdiction over the matter, a legality of sentencing

issue is reviewable and cannot be waived. Commonwealth v. Jones, 932

A.2d 179, 182 (Pa. Super. 2007). However, a legality of sentencing issue

must be raised in a timely filed PCRA Petition. See 42 Pa.C.S. § 9545(b)(1);

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“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.”).

Appellant must present an illegal sentencing claim in a timely PCRA Petition

over   which   we    have   jurisdiction.   See   Fahy,    supra   at     223;

Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015);

Commonwealth v. Miller, 102 A.3d 988, 995-96 (Pa. Super. 2014)

(explaining that the decision in Alleyne does not invalidate a mandatory

minimum sentence when presented in an untimely PCRA Petition).



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      The United States Supreme Court decided Alleyne on June 17, 2013.

In order to invoke the “constitutional right” exception under 42 Pa.C.S. §

9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days

of June 17, 2013. See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super. 2007) (stating that the 60-day period “begins to run upon the date of

the underlying judicial decision.”).    Appellant filed this PCRA Petition on

September 24, 2015, well after 60 days of the Alleyne decision.

      Because Appellant’s Judgment of Sentence was final when Alleyne

was decided and because he filed an untimely PCRA Petition, the instant

case is indistinguishable from Miller. Accordingly, the PCRA court properly

concluded that Appellant had failed to plead and prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly dismissed

Appellant’s Petition as untimely. PCRA Court Opinion, filed 12/10/15, at 4-5.

      Moreover, our Supreme Court has recently reiterated that Alleyne

does not apply retroactively on post-conviction collateral review. See

Commonwealth v. Washington, ___ A.3d ___, 2016 WL 3909088 at *8,

No. 37 EAP 2015 (Pa. filed July 19, 2016).

      In sum, Appellant’s PCRA Petition was facially untimely and he did not

plead and prove the applicability of any of the three statutory timeliness

exceptions.    Accordingly, the PCRA court properly dismissed Appellant’s

PCRA Petition. We, thus, affirm the denial of PCRA relief.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2016




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