J-S16042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellee                :
                v.                             :
                                               :
                                               :
    DEON C. STAFFORD                           :
                                               :      No. 1213 MDA 2017
                       Appellant               :


                    Appeal from the PCRA Order July 17, 2017
                in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0005277-2008


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                  FILED APRIL 30, 2018

        Appellant, Deon C. Stafford, appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. We affirm.

        We take the relevant facts and procedural history of this case from our

independent review of the certified record.          On March 4, 2009, Appellant

entered a negotiated guilty plea to three counts of robbery.1 The charges

stem from his October 2008 theft, using a BB gun, of pocketbooks from a

group of women as they walked home. On March 9, 2009, the trial court

sentenced him, in accordance with the plea agreement, to an aggregate term


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1   18 Pa.C.S.A. § 3701(a)(1)(ii).


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* Retired Senior Judge assigned to the Superior Court.
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of not less than ten nor more than twenty years’ incarceration.2 Appellant did

not file post-sentence motions or a direct appeal.

       On August 26, 2015, Appellant, acting pro se, filed the instant PCRA

petition. Appointed counsel filed an amended petition on February 4, 2016.

The PCRA court issued notice of its intent to dismiss the petition on June 21,

2017, see Pa.R.Crim.P. 907(1), and entered its order dismissing it on July 17,

2017. This timely appeal followed.3

       Appellant raises the following issues for our review:

       1. Whether the Appellant is serving an illegal sentence?

       2. Whether counsel was ineffective?

       3. Whether the Appellant was abandoned by PCRA counsel, as
       there was no timeliness exception argued?

(Appellant’s Brief, at 6) (unnecessary capitalization omitted).

       We begin by addressing the timeliness of Appellant’s petition.

              . . . [A] PCRA petition, including a second or subsequent
       petition, must be filed within one year of the date that judgment
       becomes final. A judgment becomes final for purposes of the
       PCRA at the conclusion of direct review, including discretionary
       review in the Supreme Court of the United States and the

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2 The plea agreement included a mandatory minimum ten-year sentence
pursuant to 42 Pa.C.S.A. § 9714 because Appellant was a second strike
offender. See 42 Pa.C.S.A. § 9714; (see also PCRA Court Opinion, 11/01/17,
at 1; N.T. Sentencing, 3/09/09, at 2-3, 5; Amended PCRA Petition, 2/04/16,
at unnumbered pages 3 ¶ 13, 8 ¶ 14l, 9 ¶ 14m).

3 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on August 29, 2017. The court issued an opinion on
November 1, 2017. See Pa.R.A.P. 1925.

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      Supreme Court of Pennsylvania, or at the expiration of time for
      seeking the review.

             It is well-settled that the PCRA’s time restrictions are
      jurisdictional in nature. As such, this statutory time-bar implicates
      the court’s very power to adjudicate a controversy and prohibits
      a court from extending filing periods except as the statute
      permits. Accordingly, 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 by operation of one of
      the statutorily enumerated exceptions to the PCRA time-bar.

             The exceptions to the PCRA time-bar are found in Section
      9545(b)(1)(i)–(iii) . . . and it is the petitioner’s burden to allege
      and prove that one of the timeliness exceptions applies. Whether
      a petitioner has carried his burden is a threshold inquiry that must
      be resolved prior to considering the merits of any claim. . . .

Commonwealth v. Robinson, 139 A.3d 178, 185-86 (Pa. 2016) (quotation

marks and some citations omitted).

      In the instant case, Appellant’s judgment of sentence became final on

April 9, 2009, when his time to file a direct appeal expired. See Pa.R.A.P.

903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had until April 9, 2010, to

file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant

filed the instant petition on August 26, 2015, it is untimely on its face, and

the PCRA court lacked jurisdiction to review it unless he pleaded and proved

one of the statutory exceptions to the time-bar.           See 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

             (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the



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       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.

Id.

       Any petition invoking an exception must “be filed within 60 days of the

date the claim could have been presented.”              Id. at § 9545(b)(2).    “If the

petition is untimely and the petitioner has not pled and proven an exception,

the petition must be dismissed without a hearing because Pennsylvania courts

are   without     jurisdiction    to   consider   the     merits   of   the   petition.”

Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal

denied, 170 A.3d 1007 (Pa. 2017) (citation omitted).

       Here, Appellant has not established the applicability of any exception to

the PCRA’s time-bar. (See Appellant’s Brief, at 11-19). His claim that his

sentence is illegal, premised on the United States Supreme Court’s decision in

Alleyne v. United States, 133 S.Ct. 2151 (2013),4 (see Appellant’s Brief, at

11-13), does not allow him to circumvent the PCRA’s timeliness requirements.
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4 “In Alleyne, the Supreme Court of the United States held that the Sixth
Amendment requires that any fact—other than a prior conviction—that
increases a mandatory minimum sentence for an offense must be submitted
to the jury and proven beyond a reasonable doubt. Importantly, Alleyne did
not overturn prior precedent that prior convictions are sentencing factors and



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       It is well settled that, “in order for this Court to review a legality of

sentence claim, there must be a basis for our jurisdiction to engage in such

review. . . . [T]hough not technically waivable, a legality [of sentence] claim

may nevertheless be lost should it be raised . . . in an untimely PCRA petition

for which no time-bar exception applies, thus depriving the court of jurisdiction

over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.

2014) (citations and internal quotation marks omitted) (concluding PCRA court

correctly dismissed PCRA petition raising Alleyne claim as untimely). Our

Supreme Court has addressed the retroactive effect of Alleyne, and has

expressly held “that Alleyne does not apply retroactively to cases pending on

collateral review[.]” Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016).

       Moreover, because “[s]ection 9714 increases mandatory minimum

sentences based on prior convictions[,] [it] is not unconstitutional under

Alleyne.” Reid, supra at 785 (citations omitted).          Therefore, Appellant’s

claims based on Alleyne fail.

       Regarding Appellant’s claims of ineffective assistance of counsel, (see

Appellant’s Brief, at 12-18), “[i]t is well settled that allegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness




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not elements of offenses.” Commonwealth v. Reid, 117 A.3d 777, 784 (Pa.
Super. 2015) (citations omitted; emphasis added).


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requirements of the PCRA.” Commonwealth v Wharton, 886 A.2d 1120,

1127 (Pa. 2005) (citations omitted).

      In sum, we conclude Appellant has not met his burden of proving that

his untimely PCRA petition fits within one of the three exceptions to the PCRA’s

time-bar. See Robinson, supra at 186. Accordingly, we affirm the order of

the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/30/2018




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