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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                       :
                                             :
RAYMOND ROMAN,                               :
                                             :
                          Appellant          :     No. 1760 MDA 2015

                 Appeal from the PCRA Order September 15, 2015
                In the Court of Common Pleas of Lancaster County
                 Criminal Division No(s): CP-36-CR-0005101-2012
                                          CP-36-CR-0005102-2012
                                          CP-36-CR-0005452-2012
                                          CP-36-CR-0005460-2012

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                   FILED MAY 20, 2016

        Appellant, Raymond Roman, appeals pro se from the Order entered on

September 15, 2015, dismissing his second petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.1

        On April 23, 2013, Appellant entered a negotiated guilty plea to

numerous drug charges. Pursuant to the plea negotiations, the trial court

sentenced Appellant to an aggregate term of 6 to 15 years’ incarceration.




*
    Retired Senior Judge assigned to the Superior Court.
1
    The facts of the underlying convictions are not relevant to our disposition.
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Appellant did not file a direct appeal.    Appellant’s Judgment of Sentence

became final on May 23, 2013.

      On November 6, 2014, Appellant filed his first PCRA petition, which the

PCRA court ultimately dismissed as untimely on March 20, 2015.

      Appellant filed this PCRA petition, his second, on August 17, 2015,

more than two years after his Judgment of Sentence became final.             The

PCRA court dismissed the petition as untimely on September 15, 2015.

      Appellant filed a timely pro se Notice of Appeal on October 6, 2015.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises one issue on appeal:

      Did the PCRA Court commit plain error when holding
      [A]ppellant’s claims “...[a]re untimely and meritless” by failing to
      recognize the exception to 42 Pa.C.S. § 9545(b)(1)(iii) in accord
      Commonwealth v. Hopkins, 2015 Pa. LEXIS 1281, No. 98 MAP
      2013 (June 15, 2015), making mandatory minimum sentences
      unconstitutional, and [A]ppellant preserved when filing his
      []Defendant’s Concise Statement of the Errors Complained of on
      Appeal, P[a].R.A.P. 1925(b), statement []?

Appellant’s Brief at 4 (capitalization and underlining removed).

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

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

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc). Before addressing

the merits of Appellant’s claims, we must first determine whether we have

jurisdiction to entertain the underlying PCRA petition. See Commonwealth




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v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of

a PCRA petition is a jurisdictional requisite).

      Under the PCRA, any PCRA petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed. Commonwealth. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, because Appellant filed the instant petition more than two years

after his Judgment of Sentence became final, it is facially untimely under the

PCRA.

      Pennsylvania courts may consider an untimely PCRA petition if the

petitioner can explicitly plead and prove one of the three exceptions set forth

in 42 Pa.C.S. § 9545(b), which provides the following:

      (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


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               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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).        See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (applying sixty-day timeframe after reviewing

specific facts that demonstrated the claim was timely raised).

      With respect to Appellant’s challenge to the legality of his sentence,

Appellant attempts to invoke the timeliness exception under Section

9545(b)(1)(iii) and argues that the trial court imposed illegal mandatory

minimum sentences pursuant to 18 Pa.C.S. § 7508 for several PWID

convictions.     Appellant’s Brief at 9, 12.    Appellant relies on Alleyne v.




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United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),2 as

well as Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).3

      As long as this Court has jurisdiction over the matter, a legality of

sentencing issue is reviewable and cannot be waived. Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).           However, a legality of

sentencing issue must be raised in a timely filed PCRA petition.       See 42

Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999) (“Although legality of sentence is always subject to review within the

PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”). Appellant must present an illegal sentencing claim in a

timely PCRA petition over which we have jurisdiction. See Fahy, supra at

223, and Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014)

(en banc) (explaining that the decision in Alleyne does not invalidate a



2
  Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proved beyond a reasonable doubt. Id.,
131 S.Ct. at 2160-61.
3
  Appellant avers that Hopkins, supra, is controlling authority. Appellant’s
Brief at 9-13. In Hopkins, our Supreme Court held 18 Pa.C.S. § 6317,
which imposed a mandatory minimum sentence for a drug sale or PWID
within 1,000 feet of a school, unconstitutional. Appellant fails to develop his
argument here and explain why Hopkins controls his mandatory sentence
pursuant to 18 Pa.C.S. § 7508. This defect is noteworthy because it
prevents Appellant from relying on the date of the Hopkins decision rather
than the date of the Alleyne decision for purposes of the sixty-day rule
under 42 Pa.C.S. § 9545(b)(1)(iii). Appellant’s reliance on Hopkins is, thus,
misplaced.



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mandatory minimum sentence when presented in an untimely PCRA

petition).

      Here, the United States Supreme Court decided Alleyne on June 17,

2013. In order to invoke the “constitutional right” exception under 42

Pa.C.S. § 9545(b)(1)(iii), Appellant needed to submit his PCRA petition

within 60 days of June 17, 2013. See Commonwealth v. Boyd, 923 A.2d

513, 517 (Pa. Super. 2007) (stating that the 60-day period begins to run

upon the date of the underlying judicial decision). Appellant filed this PCRA

petition on August 17, 2015, well after the 60-day deadline of August 16,

2013. After concluding that Appellant failed to prove the applicability of one

of the timeliness exceptions, the PCRA court properly dismissed Appellant’s

PCRA petition as untimely.

      In Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015), this

Court declined to give Alleyne retroactive effect to cases on timely collateral

review when the defendant’s Judgment of Sentence had been finalized

before Alleyne was decided. In Commonwealth v. Miller, 102 A.3d 988

(Pa. Super. 2014), this Court observed that Alleyne does not invalidate a

mandatory minimum sentence when presented in an untimely PCRA petition.

      Because Appellant’s Judgment of Sentence was final when Alleyne

was decided and because he filed an untimely PCRA petition, the instant

case is indistinguishable from Riggle and Miller.          The PCRA court’s




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determination is supported by the evidence of record and free of legal error.

Accordingly, we affirm.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/20/2016




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