J-S90045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN SMITH

                            Appellant                No. 2288 EDA 2016


                   Appeal from the PCRA Order May 27, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000492-2000


BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 08, 2016

        Kevin Smith (“Appellant”) appeals from the order entered in the

Chester County Court of Common Pleas, which dismissed his petition filed for

relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court set forth the relevant factual and procedural history of

this appeal as follows:

          On August 18, 2000[, a] jury convicted [Appellant] of
          twelve (12) counts of [r]obbery and one count each of
          [c]riminal [c]onspiracy, [p]ossessing [i]nstruments of
          [c]rime (“PIC”), [t]heft by [u]nlawful [t]aking (“TBUT”),
          [f]irearms [n]ot to be [c]arried [w]ithout a [l]icense and
          [c]rimes [c]omitted with a [f]irearm…



____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
J-S90045-16


          On October 18, 2000, [Appellant] was sentenced to an
          aggregate sentence of not less than 23 years and not more
          than 46 years[’] imprisonment, followed by a term of
          seven (7) years of probation. [Appellant] timely appealed
          the judgment of sentence, which was affirmed by the
          Superior Court on September 27, 2002. Commonwealth
          v. Smith, 3324 EDA 2000. [Appellant] did not seek
          allowance of appeal in the Supreme Court of Pennsylvania.

          On August 26, 2004, [Appellant] filed a first untimely PCRA
          petition. Counsel was appointed to represent [Appellant]
          in all matter[s] pertaining to that PCRA petition. PCRA
          counsel filed a “no-merit” letter and a [p]etition to
          [w]ithdraw, pursuant to the dictates set forth in
          Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
          Commonwealth         v.    Finley,     550      A.2d    213
          (Pa.Super.1988). On December 15, 2004, the [c]ourt
          dismissed [Appellant’s] first PCRA petition as untimely.
          [Appellant] did not appeal the dismissal of his first PCRA
          petition.

          On October 4, 2005, [Appellant] filed a second untimely
          PCRA petition… On March 10, 2006, the court dismissed
          [Appellant’s]   second    PCRA petition   as  untimely.
          [Appellant] did not appeal.

PCRA Court notice      of intent to    dismiss   PCRA petition pursuant to

Pa.R.Crim.P. 907, filed May 4, 2016, at 2, footnote 2.

       On March 21, 2016, Appellant filed his third PCRA petition, which is the

subject of this appeal. On May 4, 2016, the PCRA court filed notice of its

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.

907.   Appellant filed a response to the notice on May 23, 2016, and the

PCRA court dismissed his petition without a hearing on May 27, 2016.

       On June 16, 2016, Appellant timely filed a notice of appeal. On July

14, 2016, the court ordered Appellant to file a concise statement of errors




                                      -2-
J-S90045-16



complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely

complied on July 28, 2016.

      Before we address the merits of Appellant’s claims, we must determine

whether his PCRA petition was timely.     The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).      “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”    Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. 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.

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

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

                                    -3-
J-S90045-16


            (i) the failure to raise the claim 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;

           (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).    These “exceptions to the time bar must be pled in

the PCRA petition, and may not be raised for the first time on appeal.”

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007). Further,

if a petition pleads one of these exceptions, the petition will not be

considered unless it is “filed within 60 days of the date the claim could have

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

      Here, Appellant’s judgment of sentence became final on October 28,

2002, when the time-period to file a petition for allowance of appeal with our

Supreme Court expired. See 42 Pa.C.S. § 9545(b)(1), (3). See also            1

Pa.C.S. § 1908 (“Whenever the last day of [an appeal] period shall fall on…

Sunday… such day shall be omitted from the computation”).           Appellant’s

PCRA petition, filed March 21, 2016, is patently untimely.      We must next

determine whether Appellant has pled and proved any of the enumerated

exceptions to the PCRA’s jurisdictional time limitation.


                                     -4-
J-S90045-16


      Appellant has failed to include in his pro se brief a section of questions

presented.    We can glean, however, from the argument in his brief, his

Pa.R.A.P. 1925(b) statement, and his PCRA petition that Appellant attempts

to invoke the constitutional right exception to the PCRA time-bar pursuant to

42 Pa.C.S. § 9545(b)(1)(iii).      Appellant claims that his sentence was

unconstitutional pursuant to Alleyne v. United States, ___ U.S. ___, 133

S.Ct, 2151, 186 L.Ed.2d 314 (2013), and that the holding in Alleyne should

apply retroactively to his case. In Alleyne, the Supreme Court of the United

States held that “[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.” Id., 133 S.Ct. at 2155.

      Unfortunately for Appellant, to qualify for the constitutional right

exception to the PCRA time limitation, Appellant must plead and prove that

the Supreme Court of Pennsylvania or the Supreme Court of the United

States has recognized a constitutional right and that the right “has been

held by that court to apply retroactively.”      42 Pa.C.S. § 9545(b)(1)(iii)

(emphasis added).     In Commonwealth v. Washington, 142 A.3d 810

(Pa.2016), the Supreme Court of Pennsylvania held that Alleyne does not

apply retroactively to cases pending on collateral review.         Neither the

Supreme Court of Pennsylvania nor the Supreme Court of the United States

has held that Alleyne applies retroactively.




                                     -5-
J-S90045-16


      Because Appellant has failed to plead and prove any of the

enumerated     exceptions   to   the   PCRA’s   jurisdictional   time   limitation,

Appellant’s petition remains time-barred, and the PCRA court correctly

determined it lacked jurisdiction to hear it.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2016




                                       -6-
