J-S86004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    VINCENT WILLIAM PINKNEY                    :
                                               :
                      Appellant                :   No. 1091 WDA 2015

                    Appeal from the PCRA Order July 9, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012620-1996


BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 19, 2017

        Vincent William Pinkney (“Appellant”) appeals from the order entered

in the Court of Common Pleas of Allegheny County dismissing as untimely

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

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On November 20, 1996, a jury found Appellant guilty of involuntary

manslaughter and robbery1 in connection with the fatal shooting of his

robbery victim. On January 17, 1997, the trial court incorporated a five-year

mandatory minimum sentence for the robbery conviction in imposing a six to

20 year sentence on the count, which ran consecutively to the one to five

year sentence for involuntary manslaughter to form an aggregate seven to


____________________________________________


1
    18 Pa.C.s.A. §§ 2501 and 3701(a)(1)(i) or (ii), respectively.



*Former Justice specially assigned to the Superior Court.
J-S86004-16



25 year sentence. This Court affirmed judgment of sentence on February 9,

1999, and the Pennsylvania Supreme Court denied allowance of appeal on

August 19, 1999.

      Appellant filed a timely first petition on October 18, 1999, deemed

meritless by both the PCRA court and this Court on appeal.      Appellant’s

second and third petitions, filed in 2003 and 2005, respectively, were each

deemed time-barred by the PCRA court.        Appellant took no appeal from

either order.

      On September 17, 2013, Appellant filed the present PCRA petition, his

fourth.   On December 23, 2015, the PCRA court, again, declared it time-

barred and denied relief. This timely appeal followed.

      Appellant presents one question for our review:

      DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S PCRA
      PETITION SINCE APPELLANT’S SIX YEAR MANDATORY MINIMUM
      SENTENCE FOR ROBBERY WAS UNCONSTITUTIONAL, PURSUANT
      TO ALLEYNE V. UNITED STATES, 133 S.CT. 2151 (2013) AND
      COMMONWEALTH V. NEWMAN, 99 A.3d [86] (Pa.Super.
      2014) [(en banc)], THE AFOREMENTIONED HOLDINGS SHOULD
      BE RETROACTIVELY APPLIED, BUT, ARGUENDO, EVEN IF THOSE
      HOLDINGS ARE NOT RETROACTIVE, NEWMAN AND OTHER
      RECENT CASES HAVE HELD THAT 42 PA.C.S. § 9712(A) IS
      FACIALLY UNCONSTITUTIONAL, FROM THE DATE OF ITS
      ENACTMENT,     AND    THEREFORE   APPELLANT MUST    BE
      RESENTENCED?

Appellant’s brief at 3.

      Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

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


                                    -2-
J-S86004-16



824 A.2d 331, 333 (Pa.Super. 2003) (en banc).            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, 598 Pa. 350, 956 A.2d 978, 983 (2008) (explaining that the

timeliness of a PCRA petition is a jurisdictional requisite).

      The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 9545(b)(1). A judgment is 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 at the expiration of the

time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the PCRA’s timeliness provisions

allow for very limited circumstances under which we may excuse the late

filing of a petition. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a

petition must allege and the petitioner must prove:

      (i) the failure to raise a claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or the law of this
      Commonwealth or the Constitution or law 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 Pennsylvania after the time



                                      -3-
J-S86004-16


      period provided in this section and has been held by that court
      to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). “We emphasize that it is the petitioner

who bears the burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947

A.2d 714, 719 (2008) (citations omitted).

      Instantly, Appellant’s judgment of sentence became final on November

17, 1999, at the expiration of 90 days after the Supreme Court of

Pennsylvania denied his petition for allowance of appeal. See 42 Pa.C.S.A. §

9545(b)(3) (providing “a judgment 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 at the expiration of time

for seeking the review[ ]”).     As such, Appellant had until November 17,

2000, to file a timely petition for post-conviction relief. The filing date of the

present PCRA petition, Appellant’s fourth, falls nearly 13 years after the one-

year deadline, making it patently untimely. Therefore, the PCRA court could

not address the merits of Appellant's petition unless a timeliness exception

applies.

      Appellant argues his petition is not time-barred because the United

States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013)

created a “new rule” of substantive law “that an aggravating factor must be

proven beyond a reasonable doubt, and if not, a defendant is denied due

process of law.”    Appellant’s brief at 12.     As such, Appellant contends,

Alleyne must be applied retroactively to cases on collateral review.

                                      -4-
J-S86004-16



Appellant’s brief at 11-13. Appellant posits, moreover, that “issues relating

to Alleyne relate to the legality of a sentence, and therefore cannot be

defeated pursuant to the PCRA time-bar.”        Appellant’s brief at 11.    We

disagree.

      Initially, it is well-settled that this Court’s jurisdiction over a PCRA

claim challenging the legality of sentence is subject to the timeliness

provisions of the PCRA:

      As long as this Court has jurisdiction over a 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.A. § 9545(b)(2);
      Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 214, 223
      (1999) (holding that “[a]lthough a 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”). Thus,
      an appellant must present an illegal sentencing claim in a timely
      PCRA petition over which this Court has jurisdiction. See Fahy
      supra, and Commonwealth v. Miller, 102 A.3d 988, 994
      (Pa.Super. 2014) (observing Alleyne does not invalidate a
      mandatory minimum sentence challenged in an untimely PCRA
      petition).

Commonwealth v. Whitehawk, 146 A.3d 266, 270-71 (Pa.Super. 2016).

      Furthermore, in a recent en banc decision, this Court addressed the

very issues and corresponding authority raised in the present appeal and

clarified that Alleyne applies only to cases pending on direct appeal as of

the date of the decision:

      In Alleyne, the United States Supreme Court held “[a]ny fact
      that, by law, increases the penalty for a crime is an ‘element’
      that must be submitted to the jury and found beyond a
      reasonable doubt.” Alleyne, 133 S.Ct. at 2155. In applying

                                     -5-
J-S86004-16


     that mandate, an en banc panel of this Court, in
     Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en
     banc), appeal denied, ––– Pa. ––––, 121 A.3d 496 (2015),
     held that Alleyne rendered the mandatory minimum sentencing
     provision at 42 Pa.C.S. § 9712.1—the same provision applied
     herein—unconstitutional. Section 9712.1, which provides for a
     five-year mandatory minimum prison term for PWID convictions
     when a firearm is in close proximity to the illegal drugs, includes
     a provision that permits the trial court to determine at
     sentencing whether the elements necessary to increase the
     mandatory minimum sentence were proven by a preponderance
     of the evidence. See 42 Pa.C.S. § 9712.1(c). The Newman
     Court held that, under Alleyne, Section 9712.1 “can no longer
     pass constitutional muster [because] [i]t permits the trial court,
     as opposed to the jury, to increase a defendant's minimum
     sentence based upon a preponderance of the evidence”
     standard. Newman, supra, 99 A.3d at 98.

     Further, the Newman Court found the unconstitutional
     provisions in Section 9712.1 were not severable from the statute
     as a whole. See id. at 101 (“We find Subsections (a) and (c) of
     Section 9712.1 are essentially and inseparably connected.”).
     Recently, the Pennsylvania Supreme Court in Commonwealth
     v. Hopkins, ––– Pa. ––––, 117 A.3d 247 (2015), applied the
     same reasoning when it determined that another mandatory
     minimum sentencing statute, 18 Pa.C.S. § 6317, was
     unconstitutional under Alleyne. The Supreme Court opined:

           In conclusion, we hold ... that numerous provisions
           of Section 6317 are constitutionally infirm under
           Alleyne.     Moreover, the remaining provisions of
           Section 6317, standing alone, are incomplete and
           are incapable of being vindicated in accord with the
           intent of the General Assembly. 1 Pa.C.S. § 1925.
           Because of the significant provisions found to violate
           the Constitution, which clearly express the intent of
           the legislature that Section 6317 is a mandatory
           minimum sentencing statute, and not a substantive
           offense, we find the remaining unoffending
           provisions of Section 6317 are incapable of being
           severed, and we will not judicially usurp the
           legislative function and rewrite Section 6317 or
           create a substantive offense which the General
           Assembly clearly did not desire. Rather, we leave it

                                    -6-
J-S86004-16


            to our sister branch for an appropriate statutory
            response to the United States Supreme Court's
            decision in Alleyne.

      Id. at 262 (footnote omitted).

      We note the Newman Court instructed that Alleyne applies
      only to cases pending on direct appeal as of June 27, 2013, the
      date of the Alleyne decision. See Newman, 99 A.3d at 90.

      It is also settled that Alleyne does not invalidate a mandatory
      minimum sentence when presented in an untimely PCRA
      petition.    See Commonwealth v. Miller, 102 A.3d 988
      (Pa.Super. 2014). In concluding Alleyne does not satisfy the
      new retroactive constitutional right exception to the PCRA's one
      year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Miller Court
      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.

      Id.   at    995    (citations  omitted)   (emphasis    supplied).
      Furthermore, this Court also recently declined to give Alleyne
      retroactive effect to cases on timely collateral review when the
      defendant's judgment of sentence was finalized before Alleyne
      was decided. See Commonwealth v. Riggle, 119 A.3d 1058
      (Pa.Super. 2015).

Commonwealth v. Ruiz, 131 A.3d 54, 57–58 (Pa.Super. 2015) (en banc)

(emphasis in original).

      Contrary to Appellant’s assertions, therefore, it is clear he gains no

relief from Alleyne and Newman because his judgment of sentence


                                       -7-
J-S86004-16



became final prior to the date of the Alleyne decision.        Moreover, this

Court’s holding in Miller clarified that a petitioner may not vindicate Alleyne

rights through an untimely PCRA petition.      For these reasons, Appellant’s

argument fails.

      Therefore, the PCRA court lacked jurisdiction to consider the merits of

Appellant's illegality of sentence claim couched, as it was, within an untimely

serial PCRA petition. Accordingly, we affirm the PCRA court's order invoking

the statutory time-bar and denying collateral relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017




                                     -8-
