J-S85026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SAMUEL D. HUBERT,                          :
                                               :
                      Appellant                :   No. 1762 EDA 2016

                   Appeal from the PCRA Order April 28, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0005184-2007


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                             FILED JANUARY 09, 2017

        Appellant, Samuel D. Hubert, appeals from the April 28, 2016 order

denying, as untimely, his second petition filed under the Post-Conviction

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

        The relevant facts and procedural history of this appeal are as follows.

On April 9, 2008, Appellant entered a guilty plea to rape, aggravated

indecent assault, burglary, and corruption of minors.1         On July 7, 2008,

Appellant was sentenced to thirteen to twenty-six years’ incarceration for

the rape conviction, and a concurrent ten to twenty years for the aggravated

indecent assault conviction.         Appellant was further sentenced to ten to

twenty years for the burglary conviction, to run concurrent with the


____________________________________________


1
    18 Pa.C.S.A. §§ 3121(c), 3125(b), 3502(a), 6301(a)(1)
J-S85026-16



sentenced imposed for aggravated indecent assault.             Appellant was

sentenced to two to four years’ imprisonment for the corruption of minors

conviction, to run consecutive to the sentence imposed for rape.

       Appellant did not file any post-sentence motions or a direct appeal.

Appellant filed his first PCRA petition in June of 2009, which was dismissed.

This Court affirmed, and Appellant did not file for allowance of appeal with

the Pennsylvania Supreme Court.

       In March 2016, Appellant pro se filed a second petition, asserting that

his sentence was illegal based upon Alleyne v. United States, 133 S. Ct.

2151 (2013). In April 2016, the PCRA court sent Appellant notice pursuant

to Pa.R.Crim.P. 907 that his petition would be dismissed within twenty days.

Appellant filed a timely response. In April 2016, the PCRA court dismissed

Appellant’s petition. This appeal followed. 2

       Appellant timely filed a court-ordered PA.R.A.P. 1925(b) statement.

The trial court issued a responsive opinion.

       Appellant raises the following issues for review:

       (1)    Whether the ruling that the United States Supreme Court
              in Montgomery v. Louisiana, 577 U.S. … (No. 14-280,
____________________________________________


2
  The order dismissing Appellant’s PCRA petition was filed on April 28, 2016.
Notice was sent to Appellant via certified mail on May 3, 2016. Appellant
dated the notice of appeal May 27, 2016; the notice was filed with the court
on June 2, 2016. Appellant’s notice of appeal is timely per the prisoner
mailbox rule. See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) and
Smith v. Pennsylvania Board of Probation and Parole, 683 A.2d 278
(Pa. 1996).



                                           -2-
J-S85026-16


              2016) extends to defendants on collateral review where
              this Court held that when a new substantive rule of
              constitutional law controls the out come [sic] of a case, the
              constitution command is, like all federal law, is binding on
              the state courts and those substantive rules should [be]
              have retroactive effect regardless of when a conviction
              became final?

      (2)     Did not the [t]rial [c]ourt err in applying certain provision
              of the mandatory minimum sentencing statue [sic] at 3123
              where that portion of section 3123 are facially
              unconstitutional and are non-severable from the reaming
              provision of the statue [sic]?

Appellant’s Brief at 1.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded     in   order   to   address   the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

      (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;



                                        -3-
J-S85026-16


       (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).         Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s petition is untimely.3        Nevertheless, Appellant asserts his

claim is based upon a new, substantive rule of Constitutional law.              See

Appellant’s Brief at 5-7 (citing in support Alleyne v. United States, 135 S.

Ct. 1251 (2013) (holding that any fact that increases a mandatory minimum

sentence is an element of the crime that must be submitted to the jury)).

Moreover, Appellant asserts, this new rule must be applied retroactively,

thus entitling him to collateral relief. Id. (citing in support Montgomery v.

Louisiana, 136 S. Ct. 718 (2016)).



____________________________________________


3
  Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on August 6, 2008, at the expiration of his thirty days to file an
appeal. See § 9545(b)(3) (a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review). Appellant’s current petition, filed March 24, 2016, is almost seven
years too late.



                                           -4-
J-S85026-16


       Appellant’s reliance on Montgomery to establish the retroactive

impact or effect of Alleyne is misplaced.       In Montgomery, the United

States Supreme Court recognized that state collateral review courts must

give retroactive effect to a new, substantive rule of constitutional law. Id. at

729.   However, the Pennsylvania Supreme Court has determined that the

rule announced in Alleyne was neither a substantive nor a “watershed”

procedural rule, and therefore, did not apply retroactively to cases pending

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

(Pa. 2016), see also Commonwealth v. Riggle, 119 A.3d 1058, 1064-67

(Pa. Super. 2015).

       Appellant’s petition is untimely, and he has not satisfied a timeliness

exception to the requirements of the PCRA. Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant’s claim and

properly dismissed his petition. See Ragan, 932 A.2d at 1170.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




                                     -5-
