J-S27044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JOSEPH BENJAMIN HOCK,

                         Appellant                  No. 1421 MDA 2015


                 Appeal from the PCRA Order July 13, 2015
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0002818-2009

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED APRIL 04, 2016

      This is a pro se appeal from the order dismissing Appellant’s second

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. The PCRA court dismissed the petition on the basis

that it was untimely filed. We affirm.

      In a previous appeal, we summarized the pertinent facts and

procedural history as follows:

             Appellant was arrested in May 2009 and charged with
         involuntary deviate sexual intercourse (“IDSI”) with a
         person less than sixteen years of age, indecent assault of a
         person less than sixteen years of age, and corruption of
         minors, related to incidents involving the thirteen-year-old
         child of his live-in girlfriend. A suppression motion was
         filed and denied after a hearing. In the days preceding
         March 9, 2011, Appellant failed to appear for trial, and a
         bench warrant was issued for his arrest. When officers
         eventually located Appellant at his girlfriend’s house, he
         fled; police eventually apprehended him after a struggle.


*Former Justice specially assigned to the Superior Court.
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        He was tried before a jury beginning on March 10, 2011,
        and on March 11, 2011, the jury convicted [the] thirty-six-
        year-old Appellant on all charges.       The trial court
        sentenced him on June 1, 2011, to ten to twenty years of
        imprisonment.

            Appellant filed a timely counseled direct appeal, and we
        affirmed the judgment of sentence on February 21, 2012.
        Commonwealth v. Hock, 46 A.3d 822 (Pa. Super. 2012)
        (unpublished memorandum). Our Supreme Court denied
        Appellant’s petition for allowance of appeal on July 18,
        2012.     Commonwealth v. Hock, 48 A.3d 1247 (Pa.
        2012).

           Appellant filed a timely pro se PCRA petition on
        November 2, 2012, raising issues of ineffective assistance
        of counsel, and the PCRA court appointed counsel. On
        January 4, 2013, counsel filed a no-merit letter pursuant
        to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
        and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
        1988) (en banc). The PCRA court gave notice of its
        intention to dismiss Appellant’s PCRA petition pursuant to
        Pa.R.Crim.P. 907 on February 8, 2013.           Appellant’s
        response, dated February 28, 2013, was filed on February
        26, 2013, again asserting the claims of trial counsel’s
        ineffectiveness.   The PCRA court dismissed Appellant’s
        PCRA petition without a hearing on February 28, 2013, and
        granted counsel’s petition to withdraw.

Commonwealth v. Hock, 100 A.3d 320 (Pa. Super 2014), unpublished

memorandum at 1-3 (citations omitted). Appellant filed a timely appeal to

this Court, and on March 27, 2014, we affirmed the order dismissing

Appellant’s first PCRA petition. Hock, supra. Appellant did not seek further

review with our Supreme Court.

     On March 20, 2015, Appellant filed his second pro se PCRA petition,

and the PCRA court again appointed counsel. On May 1, 2015, PCRA counsel

filed a no-merit letter pursuant to Turner, supra, and Finley, supra, and a


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motion to withdraw.           On June 19, 2015, the PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s second PCRA petition

as untimely, and Appellant did not file a response. On July 13, 2015, the

PCRA court dismissed Appellant’s second petition and granted counsel’s

motion to withdraw. On August 7, 2015, the PCRA court denied Appellant’s

motion to reconsider the dismissal, and this timely pro se appeal followed.1

Although the PCRA court did not require Pa.R.A.P. 1925 compliance, it refers

us to its Pa.R.Crim.P. 907 notice for its reasons for the dismissal.

       Appellant now claims that his second petition should be considered

timely because he should receive the benefit of the United States Supreme

Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013).2 We

disagree. In order to address this claim, we must first determine whether

the PCRA court correctly determined that Appellant’s second PCRA petition

was untimely filed.       This Court’s standard of review regarding an order

dismissing 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.

____________________________________________


1
 We are satisfied that the “prisoner mailbox rule” has rendered Appellant’s
appeal timely. See generally Commonwealth v. Patterson, 931 A.2d
710 (Pa. Super. 2007).
2
  Although we agree with the Commonwealth’s assertion that Appellant’s
brief is deficient in several respects, see Commonwealth’s Brief at 6-7,
because effective appellate review has not been hampered, we will consider
the merits of Appellant’s claim.




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Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

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

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

       The    timeliness     of   a   post-conviction     petition   is   jurisdictional.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Generally, a

petition for relief under the PCRA, including a second or subsequent petition,

must be filed within one year of the date the judgment is final unless the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and

(iii), is met.3 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

(Pa. 2000); 42 Pa.C.S.A. § 9545.               A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims
____________________________________________


3
 The exceptions to the timeliness requirement are:
     (i) the failure to raise the claim previously was the result of
     interference of 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)(i), (ii), and (iii).




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could have been presented.”        Gamboa-Taylor, 753 A.2d at 783; see 42

Pa.C.S.A. § 9545(b)(2).

      Appellant’s judgment of sentence became final on October 16, 2012,

when the ninety-day time period for filing a writ of certiorari with the United

States   Supreme     Court    expired.   See   42   Pa.C.S.A.   § 9545(b)(3);

U.S.Sup.Ct.R. 13.     Therefore, Appellant was required to file the PCRA

petition at issue by October 16, 2013, in order for it to be timely.        As

Appellant filed the instant petition on March 20, 2015, it is untimely unless

he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies.        See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).

      Appellant has not specifically raised an exception to the PCRA’s time

bar. “If the [PCRA] petition is determined to be untimely, and no exception

has been pled or proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011) (citation omitted).     Here, even if he had referenced Section

9545(b)(1)(iii), involving a newly recognized constitutional right, Appellant

would not be entitled to relief.

      In Alleyne, supra, the United States Supreme Court, on June 17,

2013, “held that ‘facts that increase mandatory minimum sentences must be

submitted to the jury’ and must be found beyond a reasonable doubt.”


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Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (citing

Alleyne, at 2163). Initially, we note that Appellant did not file his second

PCRA petition within sixty days of the Alleyne decision.        See Gamboa-

Taylor, 753 A.2d at 783; see also 42 Pa.C.S.A. § 9545(b)(2). Moreover,

Alleyne has not been held to apply retroactively to cases, such as

Appellant’s, which are on collateral review. This Court has explained:

            Even assuming that Alleyne did announce a new
         constitutional right, neither our Supreme Court, nor the
         United States Supreme Court has held that Alleyne is to
         be applied retroactively to cases in which the judgment of
         sentence had become final. This is fatal to Appellant’s
         argument regarding the PCRA time-bar. This Court has
         recognized that a new rule of constitutional law is applied
         retroactively to cases on collateral review only if the United
         States Supreme Court or our Supreme Court specifically
         holds it to be retroactively applicable to those cases.
         Therefore, Appellant has failed to satisfy the new
         constitutional right exception to the time-bar.

Miller, 102 A.3d at 995 (citations and footnote omitted). Therefore, prior

precedent from this Court firmly establishes that claims based on retroactive

application of Alleyne must fail.

      In summary, the PCRA court correctly concluded that it lacked

jurisdiction to consider Appellant’s second PCRA petition.       We therefore

affirm the PCRA court’s order dismissing Appellant post-conviction relief.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2016




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