J-S09029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

NATHAN CHANDLER

                             Appellant                  No. 1903 EDA 2016


               Appeal from the PCRA Order entered May 13, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0500021-1990


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED APRIL 19, 2017

        Appellant, Nathan Chandler, appeals pro se from the May 13, 2016

order entered by the Court of Common Pleas of Philadelphia County,

dismissing as untimely his petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The factual and procedural background is undisputed.              Briefly,

Appellant filed the instant petition on August 10, 2015, approximately 23

years after his judgment of sentence became final on November 8, 1992

(i.e., ninety days after his petition for allocatur to the Pennsylvania Supreme

Court was denied).          Despite the facial untimeliness, Appellant argues his

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*
    Retired Senior Judge assigned to the Superior Court.
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PCRA    petition   qualifies    for   the    timeliness     exception   set   forth   in

§ 9545(b)(1)(ii) based on his reading of Commonwealth v. Hopkins, 117

A.3d 247 (Pa. 2015).           Appellant’s Brief at 8-11.       In Appellant’s view,

Hopkins rendered his sentence unconstitutional and illegal. Id.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                           All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.      42 Pa.C.S.A. § 9545(b)(1).               “The PCRA’s time

restrictions are jurisdictional in nature.             Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”         Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).        As timeliness is separate and distinct from the

merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.        See Commonwealth v. Stokes, 959 A.2d

306, 310    (Pa.   2008)       (consideration     of   Brady   claim    separate   from

consideration of its timeliness).       The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the


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legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“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”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(1999)).

      As noted, Appellant argues that Hopkins qualifies as an exception to

the one-year filing deadline under 42 Pa.C.S.A. § 9545(b)(1)(ii).            We

discern    several   flaws   in   Appellant’s   argument.    In   Hopkins,   the

Pennsylvania Supreme Court held that 18 Pa.C.S.A. § 6317, which required

a mandatory minimum sentence if certain controlled substances crimes

occurred within 1,000 feet of a school, was unconstitutional under Alleyne

v. United States, 133 S. Ct. 2151 (2013).           Hopkins, 117 A.3d at 249.

Hopkins was decided on direct appeal, and did not mandate its application

to post-conviction proceedings.       Id. Even if the Supreme Court had said its

ruling applied to post-conviction proceedings, Appellant failed to explain how

Hopkins would be relevant here, since his case does not involve Section

6317. Thus, Appellant’s reliance on Hopkins is misplaced.

      It should also be noted that Hopkins is an application of Alleyne.

Alleyne, however, is not applicable to the instant matter because

Appellant’s case was at the collateral stage when Alleyne was decided on

June 23, 2013, and Alleyne does not apply retroactively to cases on

collateral review. See Commonwealth v. Washington, 142 A.3d 810, 820


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(Pa. 2016) (“We hold that Alleyne does not apply retroactively to cases

pending on collateral review[.]”). “If [Alleyne] does not apply retroactively,

then a case extending [Alleyne] should not apply retroactively.” Walker v.

United States, 810 F.3d 568, 575 (8th Cir. 2016).

        Finally, even if application of Alleyne was not precluded under

Washington, Appellant would not be entitled to the benefits of Alleyne.

The mandatory minimum sentence imposed on Appellant under 42 Pa.C.S.A.

§ 97151 would not be affected by Alleyne because the fact of his prior

conviction was not required to be submitted to the jury and found beyond a

reasonable doubt before forming the basis of a mandatory minimum

sentence. See Alleyne, 133 S.Ct. at 2160 n.1. Indeed, in fashioning the

rule announced in Alleyne, the Supreme Court expressly declined to revisit

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1
    Section 9715, in relevant part, reads:

        (a) Mandatory life imprisonment.--Notwithstanding the
        provisions of section 9712 (relating to sentences for offenses
        committed with firearms), 9713 (relating to sentences for
        offenses committed on public transportation) or 9714 (relating to
        sentences for second and subsequent offenses), any person
        convicted of murder of the third degree in this Commonwealth
        who has previously been convicted at any time of murder or
        voluntary manslaughter in this Commonwealth or of the same or
        substantially equivalent crime in any other jurisdiction shall be
        sentenced to life imprisonment, notwithstanding any other
        provision of this title or other statute to the contrary.

42 Pa.C.S.A. § 9715(a). Here, the trial court imposed a mandatory life
sentence under Section 9715 because Appellant had a prior conviction for
third-degree murder. See Trial Court Opinion, 5/13/16, at 1 n.2.



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its holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998),

wherein it endorsed the application of provisions that increase the penalty

for a crime based upon the fact of a prior conviction. See Alleyne, 133 S.Ct.

at 2160 n.1.

          Because Appellant’s facially untimely petition fails to invoke a valid

exception to the timeliness requirements of the PCRA, and because Hopkins

does not apply retroactively on collateral review, Appellant is not entitled to

relief.     Therefore, the PCRA court properly dismissed Appellant’s PCRA

petition.

          Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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