J-S68027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

TROY JOHNSON BROWN

                            Appellant                 No. 109 WDA 2016


            Appeal from the PCRA Order Dated December 11, 2015
              In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000565-2006


BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                       FILED NOVEMBER 07, 2016

        Appellant Troy Johnson Brown files this counseled appeal from the

December 11, 2015, order dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, for lack of

jurisdiction. We affirm.

        The PCRA court summarized the pertinent procedural history of this

case as follows:

        Mr. Brown was sentenced on November 20, 2007 on two counts
        of Possession with Intent to Manufacture or Deliver a Controlled
        Substance[,35 Pa. C.S.A. § 780-113(a)(30),] and one count [of]
        Criminal Conspiracy to Commit Possession with Intent to Deliver
        a Controlled Substance[,18 Pa. C.S.A. § 903(a)(1)-(2)], to an
        aggregate sentence of thirteen (13) to thirty (30) years.
        Specifically, he was sentenced to [] five (5) to (10) years at
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S68027-16


       Count 2, a consecutive five (5) to (10) years at Count 3, and a
       consecutive three (3) to (10) years at Count 1. In giving this
       sentence, this Court invoked the mandatory minimums
       proscribed [sic] by 18 Pa. C.S.A. §§ 7508(a)(7)(ii) and (a)(3)(ii)
       at Counts 2 and 3, respectively. Mr. Brown filed a direct appeal,
       which was denied by the Superior Court’s Non-Precedential
       Decision of July 8, 2009. The instant PCRA was initiated by Mr.
       Brown’s filing dated February 25, 2015. Attorney Kirtland filed
       an Amended PCRA petition on Mr. Brown’s behalf on March 27,
       2015.

PCRA Court Opinion, 12/11/15, at 1-2.

       In his amended petition, Appellant claimed that his sentence was

illegal under Alleyne v. United States, 133 S.Ct. 2151 (2013), in which the

U.S. Supreme Court held that any fact that by law increases a mandatory

minimum sentence must be treated as an element of the offense and found

by a jury beyond a reasonable doubt.1 The PCRA court held a hearing on

Appellant’s petition on April 24, 2015, and denied the petition on

December 11, 2015.          The PCRA court held that Appellant’s petition was

untimely and did not satisfy the newly-recognized constitutional right

exception to the PCRA’s time bar set forth at 42 Pa.C.S. § 9545(b)(1)(iii).

Specifically, the court stated, “the rule announced in Alleyne does not allow

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1
   As the PCRA court noted, “the Amended PCRA purports to be ‘in addition
to the claims set forth’ in [Appellant’s] initial filing . . . .” PCRA Court
Opinion, 12/11/15, at 2 n.3. The PCRA court stated, “[t]o the extent the
initial filing contains issues distinct from [the Alleyne issue], we construe
such arguments as underdeveloped and therefore waived.” Id. In this
appeal, Appellant raises only the Alleyne claim; thus, we conclude that
Appellant has abandoned any additional claims that may have been in the
original, pro se, PCRA petition.



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[Appellant] to invoke the new constitutional right exception to the time bar”

because “Alleyne has not been held by the United States Supreme Court to

invalidate [mandatory minimum] sentencing schemes retroactively.” PCRA

Court Opinion, 12/11/15, at 2, 3.

      In this appeal, Appellant raises the following issue, as stated:

            Whether the PCRA court abused its discretion or
            erred as a matter of law in denying the petitioner’s
            PCRA petition seeking to find his sentence
            unconstitutional since he was sentenced to a
            mandatory minimum sentence and the statutes
            concerning [his] conviction have been found
            unconstitutional but not retroactive.

Appellant’s Brief at 5.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and 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.” Commonwealth v. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks

omitted).

      The   timeliness    of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final, unless the petition alleges and the petitioner proves one of the three




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exceptions to the time limitations for filing the petition set forth in Section

9545(b) of the statute. See 42 Pa.C.S. § 9545(b).2

        Here, Appellant’s judgment of sentence became final on August 7,

2009, when the thirty-day time period for filing an allocatur petition with the

Supreme Court of Pennsylvania expired. See 42 Pa.C.S. § 9545(b)(3). As

Appellant filed the instant PCRA petition more than five years after his

judgment of sentence became final, it is patently untimely unless Appellant

has satisfied his burden of pleading and proving that one of the three

enumerated exceptions applies.

        Appellant’s petition and amended petition did not plead or prove

application of any of the enumerated exceptions, but in his brief to this

Court, Appellant attempts to invoke the newly-recognized constitutional right
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2
    The three exceptions to the timeliness requirement are:

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



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exception set forth at 42 Pa.C.S. § 9545(b)(1)(iii). See Appellant’s Brief at

10-11.    However, the PCRA court anticipated this argument and explained

that this exception applies only when the court that recognized the new right

has held that the right applies retroactively.             See PCRA Court Opinion,

12/11/15, at 2; 42 Pa.C.S. § 9545(b)(1)(iii).                The PCRA court further

explained that because the U.S. Supreme Court has not held that Alleyne

applies retroactively to cases on collateral review, Appellant could not satisfy

the   newly-recognized        constitutional      right   exception   to   the   PCRA’s

jurisdictional time bar.       PCRA Court Opinion, 12/11/15, at 3.           The PCRA

court was correct.      Further, after the PCRA court issued its opinion in this

case, the Supreme Court of Pennsylvania expressly held that Alleyne does

not   apply    retroactively     in   the      PCRA   context.   Commonwealth        v.

Washington, 142 A.3d 810, 820 (Pa. 2016) (“We hold that Alleyne does

not apply retroactively to cases pending on collateral review . . . .”). There

is thus no authority for application of the newly-recognized constitutional

right exception to Appellant’s PCRA petition. As Appellant does not argue for

application of any other exception, his petition is untimely.3
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3
   The PCRA court’s analysis of Appellant’s untimeliness adequately disposes
of this matter, but we note that Appellant failed to meet the PCRA’s
requirements for two additional reasons. First, his PCRA petition failed to
allege application of any of the exceptions in Section 9545(b)(1), and he
made no argument for application of the newly-recognized constitutional
right exception until he filed his brief to this Court, which is contrary to what
the statute requires. See 42 Pa.C.S. § 9545(b)(1); Commonwealth v.
Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (“exceptions to the time bar
(Footnote Continued Next Page)


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          Based on the foregoing, the PCRA court correctly concluded that it

lacked jurisdiction to consider Appellant’s untimely PCRA petition.       We

therefore affirm the PCRA court’s order denying Appellant post-conviction

relief.

          Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




                       _______________________
(Footnote Continued)

must be pled in the PCRA petition, and may not be raised for the first time
on appeal”), appeal denied, 959 A.2d 927 (Pa. 2008) (table). Second, he
failed to file his petition within the 60-day deadline set forth in Section
9545(b)(2) of the PCRA. See 42 Pa.C.S. § 9545(b)(2); Commonwealth v.
Leggett, 16 A.3d 1144, 1146-47 (Pa. Super. 2011) (petition must be filed
within 60 days of decision recognizing new constitutional right, not within 60
days of when petitioner learned of newly-recognized right).



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