J-S04022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DWAYNE HARRIS

                            Appellant                 No. 3638 EDA 2015


                 Appeal from the PCRA Order November 3, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0603681-2005


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

MEMORANDUM BY OTT, J.:                                   FILED MAY 23, 2017

        Dwayne Harris appeals pro se1 from the order entered November 3,

2015, in the Court of Common Pleas of Philadelphia County, that dismissed

as untimely his first petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Harris seeks relief

from the judgment of sentence of an aggregate term of 20 to 40 years’

imprisonment, followed by 15 years’ probation.2 Based upon the following,

we affirm.
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*
    Former Justice specially assigned to the Superior Court.
1
  As will be more fully discussed below, the PCRA court vacated PCRA
counsel’s appointment after counsel filed a no-merit letter and a motion to
withdraw from representation.
2
  The trial court, following a Megan’s Law hearing, determined Harris was a
sexually violent predator (SVP).
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         On September 29, 2005, Harris entered an open guilty plea to charges

of rape, involuntary deviate sexual intercourse (IDSI), incest, and corruption

of minors.3 Sentencing followed on June 22, 2007, and no direct appeal was

filed.    Over seven and one-half years later, on February 18, 2015, Harris

filed this first PCRA petition pro se, asserting he was “challenging the legality

of his sentence pursuant to a New Constitutional Rule,” and further stating,

“[t]he mandatory minimum statute that the Petitioner has been sentenced to

has been struck down as facially unconstitutional.” Harris’s PCRA Petition,

2/18/2015, at 9, citing, inter alia, Alleyne v. United States, 133 S. Ct.

2151 (2013),4 and Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.




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3
    See 18 Pa.C.S. §§ 3121(1), 3123(a)(1), 4302, and 6301(a), respectively.
4
  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, supra, 133 S. Ct.
at 2155. Subsequently, in Commonwealth v. Newman, 99 A.3d 86, 90
(Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015), this
Court noted that Alleyne will be applied to cases pending on direct appeal
as of June 27, 2013, the date of the Alleyne decision.

     “The effect [of Alleyne] was to invalidate a range of Pennsylvania
sentencing statutes predicating mandatory minimum penalties upon non-
elemental facts and requiring such facts to be determined by a
preponderance of the evidence at sentencing.”       Commonwealth v.
Washington, 142 A.3d 810, 812 (Pa. 2016).




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2014) (invalidating 42 Pa.C.S. § 9718 (“Sentences for offenses against

infant persons”) as unconstitutional).5

       Counsel was appointed, and subsequently filed a petition to withdraw,

together with a no-merit letter.6              The no-merit letter advised that the

petition was untimely and no exception to the PCRA’s statutory time-bar

applied in this case.       See No-Merit Letter, 8/5/2015, at 1. The no-merit

letter further advised that even if the petition was timely, Harris was not

sentenced under any unconstitutional mandatory sentencing provision. See

id. at 3.

       On October 1, 2015, the PCRA court issued notice of intent to dismiss

the petition pursuant to Pa.R.Crim.P. 907, and permitted Harris 20 days to

respond to the proposed dismissal. Harris filed a timely response to the

PCRA court’s Rule 907 notice on October 19, 2015.7                   Thereafter, on

November 3, 2015, the PCRA court issued a final order that dismissed

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5
 On June 20, 2016, the Pennsylvania Supreme Court affirmed this Court’s
decision in Wolfe. See Commonwealth v. Wolfe, 140 A.3d 651 (Pa.
2016).
6
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
7
  Harris’s Rule 907 response was mailed from prison in an envelope post-
marked October 19, 2015. According to the “prisoner mailbox rule,” a
document will be deemed filed on the date that the appellant deposits the
appeal with prison authorities and/or places it in the prison mailbox. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).




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Harris’s pro se petition without a hearing, and vacated PCRA counsel’s

appointment. See Order, 11/3/2015. This appeal followed.8

       Harris contends that he is serving a mandatory minimum sentence

imposed pursuant to 42 Pa.C.S. § 9718, and that the sentence is illegal in

light of Alleyne and Wolfe.              See Harris’s Brief at 11.   The court’s

sentencing order, however, attaches a form that indicates the sentence

imposed was not a mandatory sentence. See Court Commitment, attached

to Sentencing Order, 6/22/2007 (Docket #2).9 In any event, for the reasons

set forth below, even if Harris did receive a mandatory minimum sentence

pursuant to Section 9718, he would not be entitled to PCRA relief.

       Preliminarily, we state our standard of review:

       “In reviewing the denial of PCRA relief, we examine whether the
       PCRA court’s determination ‘is supported by the record and free
       of legal error.’” Commonwealth v. Taylor, 620 Pa. 429, 67
       A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
       Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).

Commonwealth v. Mitchell, 141 A.3d 1277, 1283-1284 (Pa. 2016).

       “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A

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8
  On December 4, 2015, the PCRA court issued an order for Harris to file a
Pa.R.A.P. 1925(b) statement within 21 days of the court’s order. Harris
complied by filing a Rule 1925(b) statement, which was entered on the
docket on December 18, 2015.
9
  The notes of testimony of the sentencing hearing are not included in the
certified record.



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PCRA petition must be filed within one year of the date the judgment of

sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “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.” 42 Pa.C.S. § 9545(b)(3).

      There are three statutory exceptions to the PCRA’s timeliness

provisions that allow for limited circumstances under which an otherwise

untimely PCRA petition may be reviewed. 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 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. § 9545(b)(1)(i)-(iii). Furthermore, a petitioner invoking a

timeliness exception must file a petition within 60 days of the date the claim

could have been presented. 42 Pa.C.S. § 9545(b)(2).

      Here, Harris was sentenced on June 22, 2007, and because no appeal

was filed, his judgment of sentence became final on Monday, July 23, 2007,

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following the expiration of the 30-day appeal period. See 42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 903(a). See also 1 Pa.C.S. § 1908 (“Computation of

time”). Therefore, applying the PCRA’s one year time limitation, Harris had

until July 23, 2008, to file a timely PCRA petition. See 42 Pa.C.S. §

9545(b)(1).   However, because Harris filed this first PCRA petition on

February 18, 2015, it is patently untimely. See 42 Pa.C.S. § 9545(b)(1).

     In this regard, it is important to note that “although illegal sentencing

issues cannot be waived, they still must be presented in a timely PCRA

petition.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).

Accordingly, in this case, there is no jurisdiction to review the present

petition unless a timeliness exception applies. See 42 Pa.C.S. 9545(b)(1)(i)-

(iii). The PCRA court determined no timeliness exception applied, and we

agree.

     Harris’s assertion that his sentence is illegal in light of the United

States Supreme Court’s decision in Alleyne invokes the PCRA’s statutory

exception for a newly recognized constitutional right that has been held to

apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(iii), supra. However, the

Pennsylvania Supreme Court, in Commonwealth v. Washington, 142 A.3d

810 (Pa. 2016), held that the new constitutional rule announced in Alleyne

— decided by the United States Supreme Court on June 17, 2013 — is not a

new substantive or watershed procedural rule that warrants retroactive

application to cases on collateral review where the petitioner’s judgment of


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sentence had already become final before Alleyne was decided. Accord

Commonwealth v. Ciccone, 152 A.3d 1004 (Pa. Super. 2016) (en banc).

Moreover, to date, there is no United States Supreme Court decision holding

that Alleyne applies retroactively to untimely PCRA petitions. As such,

Harris’s claim does not satisfy the “new constitutional right” exception based

upon Alleyne.        Furthermore, in this regard, Harris’s reliance on Wolfe is

misplaced as Wolfe did not announce a new constitutional right, but rather

applied Alleyne in a direct appeal.10

       Even    had    Harris’s    claim    based   on   Alleyne   satisfied   Section

9545(b)(1)(iii), Harris still would not be entitled to PCRA relief since he

failed to file his petition within 60 days of the Alleyne decision.           See 42

Pa.C.S. § 9545(b)(2) (requiring petition invoking timeliness exception to be

filed within 60 days of the date the claim could have been presented)

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (“the

sixty-day period begins to run upon the date of the underlying judicial

decision”). Although Harris asserts he filed his petition within 60 days of this



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10
    In Wolfe, it was after the defendant’s trial and prior to his October 1,
2013, sentencing that the Supreme Court of the United States issued its
Alleyne decision. On appeal, this Court applied Alleyne and held that
mandatory minimum sentences imposed pursuant to 42 Pa.C.S. § 9718 were
illegal. See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014),
affirmed, 140 A.3d 651 (Pa. 2016).




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Court’s decision in Wolfe, we have already explained that Wolfe did not

announce a new constitutional right.

       In sum, we conclude the PCRA court correctly determined it lacked

jurisdiction to consider the merits of Harris’s PCRA petition and properly

dismissed it as untimely filed. Accordingly, we affirm.11

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




____________________________________________


11
   Harris also states in his brief that he “challenges the (SVP) provision
under Megan’s Law, that statute that was used to sentence him is
unconstitutional.” Harris’s Brief at 17, citing Commonwealth v. Williams,
733 A.2d 593 (Pa. 1999). Harris raised this issue in his response to the
PCRA Court’s Rule 907 notice.         See Harris’s Notice of Objection and
Response to the Notice of Intent to Dismiss PCRA [Petition], 11/12/2015, at
3 ¶14. This claim, however, does not implicate any statutory exception to
the PCRA’s time bar, and no further discussion of this issue is warranted.



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