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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
DENNIS LAMONT CORBETT,                   :         No. 1701 WDA 2016
                                         :
                        Appellant        :


               Appeal from the PCRA Order, October 5, 2016,
                in the Court of Common Pleas of Blair County
             Criminal Division at Nos. CP-07-CR-0000980-2009,
             CP-07-CR-0002792-2008, CP-07-CR-0002804-2008


BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED: February 16, 2018

      Dennis Lamont Corbett appeals pro se from the order filed in the Court

of Common Pleas of Blair County that dismissed his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Because

we agree with the PCRA court that appellant’s facially untimely petition failed

to establish a statutory exception to the one-year jurisdictional time limit for

filing a petition under the PCRA, we affirm.

      The PCRA court set forth the following factual and procedural history:

                  At CR 2792-2008, [a]ppellant entered a
            nolo contendere plea on July 6, 2009 and received
            a state sentence of 4 to 8 years for Possession of
            Firearm Prohibited (18 Pa.C.S.A. § 6105(a)(1), a
            felony of the 2nd degree) and a concurrent sentence
            of 3½ to 7 years for Firearms Not To Be Carried
            Without A License (18 Pa.C.S.A. § 6106(a)(1), a
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              felony of the 3rd degree). Trial counsel was Attorney
              J. Kirk Kling. There was no direct appeal filed.

                    [A]ppellant entered a guilty plea and was
              sentenced on October 13, 2009 by the Honorable
              Jolene Grubb Kopriva as follows: At CR 2804-2008,
              to serve concurrent state sentences of 5 to 10 years
              for Criminal Conspiracy (object crime PWID); PWID
              (Heroin) and PWID (Ecstasy).[1] [A]ppellant was also
              assessed $200 fines for both Escape and Fleeing or
              Eluding a Police Officer.[2]         At CR 980-2009,
              [a]ppellant received a concurrent 5 to 10[-]year
              sentence for Criminal Conspiracy (object crime PWID)
              and a 10[-]year consecutive probationary period for
              PWID (Heroin).       His trial counsel was Attorney
              Douglas J. Keating. [A]ppellant was afforded any and
              all appropriate credit for time served and was found
              not be [sic] RRRI eligible. Upon appeal, the Superior
              Court of Pennsylvania affirmed the judgment of
              sentence in its decision filed April 19, 2011.

                     [A]ppellant filed his original pro se PCRA
              Petition on June 18, 20[1]5. His claims included
              generally, that he pled nolo contendere under
              duress; that mandatory minimum sentences were
              imposed for the firearm convictions and that such
              constituted an illegal sentence in light of the United
              States Supreme Court decision in Alleyne v. U.S.,
              133 S.Ct[.] 2151; and that he was rendered
              ineffective assistance of counsel by both Attorney
              Kling and Attorney Keating.

              ....

                    On March 1, 2016, the Commonwealth filed a
              Motion to Dismiss Petitioner’s PCRA Petition,
              asserting, inter alia, that [appellant’s] PCRA Petition
              was untimely and that none of the exceptions set forth
              in 42 Pa.C.S.A. § 9545 were applicable. Therefore,
              the Commonwealth argued that this court lacked

1   18 Pa.C.S.A. § 903(a)(1) and 35 P.S. § 780-113(a)(30), respectively.

2   18 Pa.C.S.A. § 5121(a) and 75 Pa.C.S.A. 3733(a), respectively.


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           jurisdiction to address to [sic] PCRA Petition/Amended
           Petition on its merits. Further, the Commonwealth
           asserted that even if the court had jurisdiction,
           [appellant] failed to state a cognizable claim as he was
           not entitled to a retroactive application of Alleyne.

           ....

                  On March 8, 2016, Attorney Puskar filed an
           Amended PCRA Petition, citing Commonwealth v.
           Hopkins, [117 A.3d 247 (Pa. 2015),] in support of
           the argument that the mandatory minimum sentences
           imposed       were      unconstitutional     (specifically
           42 Pa.C.S.A. § 9712.1) and that the PCRA Petition was
           filed within sixty (60) days of learning of the Hopkins
           decision.

                On March 18, 2016, Attorney Puskar filed a
           Motion to Withdraw as Counsel. . . .[3]

           ....

           . . . . Due to Attorney Gieg’s late appointment, [the
           PCRA court] continued the hearing originally
           scheduled       June     2,   2016   relative    to    the
           Commonwealth’s Motion to Dismiss the PCRA Petition.
           That hearing was eventually held October 4, 2016.
           [Appellant] appeared via video conferencing. That
           same date, [the PCRA court] entered an order
           granting the Commonwealth’s motion, dismissing the
           PCRA Petition/Amended Petition as being untimely
           filed. In [its] order, [the PCRA court] specifically found
           that [appellant] was not entitled to retroactive relief
           under Alleyne, based upon the Pennsylvania
           Supreme Court decision in Commonwealth v.
           Terrance Washington, [142 A.3d 810 (Pa. 2016)].

                 On November 7, 2016, [appellant] filed a
           pro se Notice of Appeal of this court’s order of
           October 4, 2016. On December 6, 2016, [the PCRA
           court] entered a Rule 1925(b) Order, directing

3 The PCRA court granted the motion and appointed Attorney Matthew P. Gieg
(“Attorney Gieg”) as substitute PCRA counsel.


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             [a]ppellant to file his Concise Statement of the Errors
             Complained of on Appeal within twenty (21) days after
             filing and service of the order.

PCRA court opinion, 3/1/17 at 1-4 (emphasis omitted from ¶¶ 1-2).

      The Rule 1925(b) order was sent to the assistant district attorney,

appellant, and Attorney Gieg. By letter dated November 14, 2016, the trial

court advised Attorney Gieg that appellant had filed a pro se notice of appeal

and suggested that Attorney Gieg file a formal motion to withdraw as counsel

along with a Turner/Finley4 letter if Attorney Gieg believed the appeal was

meritless.    Attorney Gieg served the petition on the trial court on

December 28, 2016, and it was filed on January 3, 2017. The PCRA court

granted the petition on February 28, 2017. It was filed on March 10, 2017.

      No Rule 1925(b) statement was filed within 21 days of the December 6,

2016 order. On December 22, 2016, appellant applied for leave to stay and

abeyance of Rule 1925(b) statement and all other matters on the basis that

cases pending in this court and the Pennsylvania Supreme Court would

address questions of law directly pertaining to the issues at hand. The PCRA

court received the motion on December 29, 2016.          This court denied the

motion on January 5, 2017.

      Despite the fact that there was no Rule 1925(b) statement filed, the

PCRA filed a Rule 1925(a) opinion on March 1, 2017.           The opinion was




4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988).


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forwarded to this court and filed on March 14, 2017.         In a letter dated

February 28, 2017, and addressed to the deputy prothonotary of this court in

Pittsburgh, the PCRA court stated that appellant had not filed his concise

statement of errors complained of on appeal.

      Appellant received a copy of the letter to this court. He then petitioned

the PCRA court to reissue the order requesting a statement of matters

complained of on appeal. By letter dated March 23, 2017, the PCRA court

informed appellant that the PCRA court no longer had jurisdiction over the

matter.

      While appellant did not file a Rule 1925(b) statement, Attorney Gieg still

represented appellant during the period to timely file the statement. If this

court determined that Attorney Gieg was per se ineffective, it could remand

for the filing of a statement nunc pro tunc and a filing of an opinion by the

PCRA court pursuant to Pa.R.A.P. 1925(c)(3). However, that is not necessary

here as appellant has not requested that and the PCRA court issued an opinion

which provides this court with sufficient information to address any claim not

specifically addressed in that opinion. This court also declines to find waiver5

for failure to file the Rule 1925(b) statement given that Attorney Gieg still

represented appellant during the relevant period. See Commonwealth v.

Oliver, 128 A.3d 1275 (Pa.Super. 2015) (this court addressed appeal of denial




5 Under Rule 1925(b)(4)(vii) of the Pennsylvania Rules of Appellate Procedure,
issues not raised in the Rule 1925(b) statement are waived.


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of PCRA petition where no 1925(b) statement was filed, and the appellant’s

attorney withdrew representation during the course of time to file 1925(b)

statement).

      Appellant raises the following issues for our review:

              I.     Did the [PCRA] Court err in denying the Post
                     Conviction Relief Act Petition without a hearing
                     by     misapprehending       the   retrospective
                     application in Commonwealth v. Hopkins,
                     117 A.3d 247 (2015)[,] when it’s [sic]
                     paradigm, Alleyne v. United States, 133 S.Ct.
                     2151 (2013), created a “substantive rule,”
                     which “the Constitution requires State Collateral
                     Review Courts to give retroactive effect to that
                     rule?”

              II.    Did the [PCRA] Court err in denying the Post
                     Conviction Relief Act Petition without a hearing
                     when [appellant] filed the instant Post
                     Conviction Relief Act Petition timely by filing
                     within sixty (60) days of learning of the
                     Supreme Court of Pennsylvania’s decision in
                     Commonwealth v. Hopkins, 117 A.3d 247
                     ([Pa] 2015)?

              III.   Did the [PCRA] Court err in denying the Post
                     Conviction Relief Act Petition without a hearing
                     when [appellant] contends that through the
                     Court’s inherent power, the PCRA Court always
                     retains jurisdiction to correct his patently
                     unconstitutional, and therefore illegal sentence?

Appellant’s brief at 4.

              The standard of review for an order denying
              post-conviction relief is limited to whether the record
              supports the PCRA court’s determination, and whether
              that decision is free of legal error. The PCRA court’s
              findings will not be disturbed unless there is no
              support for the findings in the certified record.
              Furthermore, a petitioner is not entitled to a PCRA


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           hearing as a matter of right; the PCRA court can
           decline to hold a hearing if there is no genuine issue
           concerning any material fact and the petitioner is not
           entitled to post-conviction collateral relief, and no
           purpose would be served by any further proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008), appeal

denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v. Taylor, 933

A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

           Pennsylvania law makes clear no court has jurisdiction
           to hear an untimely PCRA petition. Commonwealth
           v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161
           (2003). The most recent amendments to the PCRA,
           effective January 16, 1996, provide 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);
           Commonwealth v. Bretz, 830 A.2d 1273, 1275
           (Pa.Super. 2003); Commonwealth v. Vega, 754
           A.2d 714, 717 (Pa.Super. 2000). A judgment is
           deemed 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.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

           The three statutory exceptions to the timeliness
           provisions in the PCRA allow for very limited
           circumstances under which the late filing of a petition
           will be excused. 42 Pa.C.S.A. § 9545(b)(1). To
           invoke an exception, a petition must allege and prove:

           (i)   the failure to raise the claim previously
                 was the result of interference by
                 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;



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              (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)-(iii). “As such, when a
              PCRA petition is not filed within one year of the
              expiration of direct review, or not eligible for one of
              the three limited exceptions, or entitled to one of the
              exceptions, but not filed within 60 days of the date
              that the claim could have been first brought, the trial
              court has no power to address the substantive merits
              of a petitioner’s PCRA claims.” Commonwealth v.
              Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
              (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080.

      The Pennsylvania Supreme Court has held that the PCRA’s time

restriction is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287,

292 (Pa. 2004).        In addition, our supreme court has instructed that the

timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely,

a court lacks jurisdiction over the petition. Commonwealth v. Callahan,

101 A.3d 118, 120-121 (Pa.Super. 2014) (courts do not have jurisdiction over

an untimely PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120

(Pa. 2005).




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      With respect to docket number CP-07-CR-0002792-2008, appellant

entered a plea of nolo contendere on July 6, 2009, and was sentenced the

same day. The sentencing order was not filed until July 20, 2009. Appellant

did not file a direct appeal, rendering the judgment of sentence as final on

August 19, 2009. As he did not petition for post-conviction relief until June 18,

2015, the current petition was clearly untimely. In order for the PCRA court

to properly consider the current petition, appellant must establish that he

meets one of the three exceptions to the one-year requirement.

      Further, this court affirmed appellant’s judgment of sentence on

April 19, 2011 for docket numbers CP-07-CR-0002804-2008 and CP-07-CR-

0000980-2009. Appellant had 30 days to appeal to the Pennsylvania Supreme

Court for discretionary review or until May 19, 2011. He did not appeal. In

order to timely file a PCRA petition, appellant had to file his petition within one

year of May 19, 2011. The current petition was not filed until June 18, 2015,

which was clearly untimely. In order for the PCRA court to consider the current

petition, appellant must establish that he meets one of the three exceptions

to the one-year requirement.

      Before this court, appellant initially contends that the PCRA court erred

when it denied his petition without a hearing by misapprehending the

retrospective application in Hopkins when Alleyne created a substantive rule

that the PCRA court must apply retroactively.




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      In Hopkins, the Supreme Court of Pennsylvania held on a direct appeal

from a judgment of sentence under 18 Pa.C.S.A. § 6317, relating to selling

drugs in close proximity to a school, that the statute was unconstitutional

under Alleyne. The Pennsylvania Supreme Court held that numerous sections

constituted mandatory minimum sentencing and were constitutionally infirm

while the remaining sections could not be severed from the unconstitutional

portion. Hopkins, 117 A.3d at 262.

      In contrast to Hopkins, in Commonwealth v. Washington, 142 A.3d

810 (Pa. 2016), a case involving collateral review of mandatory minimum

sentences under Alleyne, the Pennsylvania Supreme Court determined, “We

hold that Alleyne does not apply retroactively to cases pending on collateral

review, and that Appellant’s judgment of sentence, therefore, is not illegal on

account of Alleyne.” Washington, 142 A.3d at 820.

      Appellant states that he must be afforded the constitutional right of

retroactive application of Alleyne because the new rule announced is

substantive and applies retroactively on collateral review.     However, the

Pennsylvania Supreme Court emphatically held that the opposite was true. To

the extent appellant is attempting to employ the constitutional right exception

to the timeliness requirements of the PCRA, this attempt must fail.

      Appellant next contends that the PCRA court erred when it denied his

PCRA petition when appellant filed the petition within 60 days of learning of

Hopkins so that the petition met the requirements of the unknown facts



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exception to the timeliness requirement.      Appellant argues that the newly

discovered fact is not the precedential case law of Hopkins but the principles

of the statute becoming null and void based upon the standards set in

Alleyne.

      However, the Pennsylvania Supreme Court held in Commonwealth v.

Watts, 23 A.3d 980, 987 (Pa. 2011), “that subsequent decisional law does

not amount to a new “fact” under Section 9545(b)(1)(ii) of the PCRA.” To the

extent appellant claims that he met the exception because he filed his facially

untimely petition within 60 days of the decision in Hopkins, this claim is

without merit. Further, as previously stated, appellant raises the argument

that under Alleyne all mandatory minimum statutes with a proof at

sentencing provision are void ab initio even for purposes of collateral review.

This assessment of the law runs contrary to the Pennsylvania Supreme Court’s

decision in Washington.

      Appellant next contends that the PCRA court erred when it denied his

petition without a hearing where the court always retains jurisdiction to correct

an illegal sentence.

      To the extent appellant is arguing that his sentence is illegal, this claim

does not allow him to skirt the timeliness requirement. “[E]ven claims that a

sentence was illegal, an issue deemed incapable of being waived, are not

beyond the jurisdictional time restrictions.” Commonwealth v. Grafton, 928

A.2d 1112, 1114 (Pa.Super. 2007), citing Fahy, 737 A.2d 214 (Pa. 1999);



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Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).           Therefore,

appellant’s illegal sentencing claim does not operate as an independent

exception to the PCRA’s jurisdictional time-bar.

      In conclusion, the trial court did not abuse its discretion when it

determined that it lacked jurisdiction to hear appellant’s untimely PCRA

petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2018




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