J-S59008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WAYNE COOMBS,

                            Appellant                 No. 1102 EDA 2017


               Appeal from the PCRA Order Entered March 3, 2017
              In the Court of Common Pleas of Philadelphia County
                           Criminal Division at No(s):
                            CP-51-CR-0303291-2000
                            CP-51-CR-0515341-2000


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 07, 2017

        Appellant, Wayne Coombs, appeals pro se from the post-conviction

court’s March 3, 2017 order denying, as untimely, his third petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We

affirm.

        The facts underlying Appellant’s conviction are unnecessary to our

disposition of his appeal. We only note that on November 30, 2001, a jury

convicted him of nine counts of robbery and three counts of possessing an

instrument of crime. On February 3, 2002, Appellant was sentenced to an

aggregate term of 59 to 160 years’ incarceration.        On appeal, this Court

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*   Former Justice specially assigned to the Superior Court.
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affirmed and our Supreme Court denied Appellant’s subsequent petition for

allowance of appeal. See Commonwealth v. Coombs, 832 A.2d 534 (Pa.

Super. 2003) (unpublished memorandum), appeal denied, 841 A.2d 528

(Pa. 2003).

       Over the ensuing years, Appellant filed two consecutive PCRA

petitions, both of which were denied by the PCRA court.         He did not file

appeals from those orders. On October 7, 2016, Appellant filed a third, pro

se PCRA petition, which underlies the present appeal. Therein, he contended

that a mandatory minimum sentence imposed in his case is illegal under

Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts

that increase mandatory minimum sentences must be submitted to the jury”

and found beyond a reasonable doubt).1           On January 20, 2017, the PCRA

court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s

petition without a hearing. Appellant did not file a response, and on March

3, 2017, the court filed an order and opinion dismissing his petition as being

untimely filed.




____________________________________________


1  It is unclear what specific mandatory minimum sentencing provision
Appellant claims to have been sentenced under. Our review of the record
also does not indicate what, if any, mandatory minimum sentence was
imposed in his case. However, even accepting that a mandatory minimum
term was imposed upon Appellant under a statute now deemed
unconstitutional under Alleyne, he is still not entitled to relief for the
reasons stated infra.



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      Appellant filed a timely, pro se notice of appeal with this Court.    It

does not appear that the PCRA court directed him to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.        Herein, Appellant

presents three issues for our review:

      A. Does not the decision of the Pennsylvania Supreme Court in
         Commonwealth v. Vasquez, 744 A.2d 1280, 1284 (Pa.
         2000), which held that non-compliance with Pa.R.Crim.[P.]…,
         42 Pa.C.S.[] § 1410 and, 42 Pa.C.S.[] § 5505 creates no bar
         to reviewing the application by the trial court of 42 Pa.C.S. §
         9714?

                                        …

      B. Does not the recent decision of the United States Supreme
         Court in Alleyne …, and its progeny, Commonwealth v.
         Newman, 99 A.3d 86 ([Pa. Super.] 2014) [(en banc)],
         including Commonwealth v. Watley[,] 81 A.3d 108, 117
         (Pa. Super. 2013), Commonwealth v. Valentine, … [101
         A.3d 801 (Pa. Super. 2014),] Commonwealth v.
         [Hopkins], 117 A.3d 247 (Pa. 2015), and Commonwealth
         v. Wolfe, 121 A.3d 433 (Pa. 2016), constitute illegal
         sentencing claims that any 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?

                                        …

      C. Does not the PCRA [c]ourt’s [a]nswer fail to address
         [Appellant’s] illegal sentencing claims that non-compliance
         with Pa.R.Crim.[P] … create[s] no bar to reviewing the
         application by the trial court in any meaningful way for it also
         fails to even mention the applicability of 42 Pa.C.S. § 9542
         action established in 42 Pa.C.S. pt. VIII, ch. 95, subch. B
         shall be the sole means of obtaining collateral relief and
         encompasses all other common law and statutory remedies
         for the same purpose that exist when subch. B takes effect,
         before denying the PCRA motion as without merit and
         untimely filed?

Appellant’s Brief at 2-3.

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      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.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

the petition).   Under the PCRA, any petition for post-conviction relief,

including a second or subsequent one, must be filed within one year of the

date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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;

            (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


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            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 one of

these exceptions “shall be 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 March 10,

2004, ninety days after our Supreme Court denied his petition for allowance

of appeal from his judgment of sentence.      See 42 Pa.C.S. § 9545(b)(3)

(stating that a judgment of sentence becomes final at the conclusion of

direct review or the expiration of the time for seeking the review);

Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing

that under the PCRA, petitioner’s judgment of sentence becomes final ninety

days after our Supreme Court rejects his or her petition for allowance of

appeal since petitioner had ninety additional days to seek review with the

United States Supreme Court). Thus, his present petition - filed on October

7, 2016 - is facially untimely and, for this Court to have jurisdiction to

review the merits thereof, Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      Instantly, Appellant does not clearly state what timeliness exception

he is attempting to meet; instead, he seems to consider his petition as being

timely filed. See Appellant’s Brief at 8 (stating that he is “entitled to have

his illegal sentence vacated via a timely PCRA petition pursuant to 42

Pa.[C.S.] § 9542”) (emphasis added); see also id. at 14 (stating that “the


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PCRA statute by its own terms provides relief from any illegal sentence if

such claim is raised in a timely PCRA petition”) (emphasis added).

Appellant then argues that a mandatory minimum sentence imposed in his

case is illegal under Alleyne, and that he is entitled to relief under the

principles set forth in Vasquez,2 and pursuant to the plain language of 42

Pa.C.S. § 9542 (stating that the PCRA “provides for an action by which

persons convicted of crimes they did not commit and persons serving illegal

sentences may obtain collateral relief”).

       Appellant’s arguments are unconvincing, as his PCRA petition is

patently untimely. Vasquez involved an illegal sentencing claim raised on

direct appeal; thus, it is inapplicable to Appellant’s case. Moreover, although

section 9542 establishes that claims challenging the legality of sentence are

always subject to review within the PCRA, it is well-settled that the petitioner

must first satisfy the PCRA’s time limits.       See Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999). Here, Appellant makes no attempt to explain

what timeliness exception he meets. While he discusses why his sentence is

illegal under Alleyne, he cannot rely on that decision to satisfy the

timeliness exception of section 9545(b)(1)(iii), as our Supreme Court has

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2 In Vasquez, our Supreme Court stated, in pertinent part that, “[c]laims
concerning the illegality of the sentence are not waivable[,]” and that “[t]rial
courts never relinquish their jurisdiction to correct an illegal sentence.”
Vasquez, 744 A.2d at 1284 (citations omitted).




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held that Alleyne does not apply retroactively.         Commonwealth v.

Washington, 142 A.3d 810 (Pa. 2016).        Additionally, none of the cases

issued by the courts of this Commonwealth in the wake of Alleyne created a

‘new constitutional right’ so as to satisfy section 9545(b)(1)(iii); instead,

those decisions simply applied the rule announced in Alleyne to strike down

various mandatory minimum sentencing statutes.

      Consequently, Appellant is not entitled to relief for his illegal

sentencing claim, as he has failed to demonstrate the applicability of any

PCRA timeliness exception. Thus, the PCRA court did not err in denying his

untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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