J-S49004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

FRANKLIN WILLIAMS

                        Appellant                   No. 3588 EDA 2015


              Appeal from the PCRA Order October 30, 2015,
             in the Court of Common Pleas of Chester County,
           Criminal Division, at No(s): CP-15-CR-0001747-2001.


BEFORE: PANELLA, J., and OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                             FILED JULY 25, 2016

      Franklin Williams (“Appellant”) appeals from the order denying as

untimely his latest petition for relief pursuant to the Post Conviction Relief

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

      After a jury found Appellant guilty of robbery and related crimes, the

trial court sentenced Appellant, on December 18, 2003, to an aggregate

term of nineteen to thirty-eight years of imprisonment. The parties do not

dispute that, included within this aggregate, Appellant received mandatory

minimums for visibly possessing a weapon. See 42 Pa.C.S.A. § 9712.

Following a timely appeal, this Court affirmed Appellant’s judgment of

sentence in an unpublished memorandum filed on December 21, 2004. See

Commonwealth v. Williams, 869 A.2d 16 (Pa. Super. 2004) (Table).



*Former Justice specially assigned to the Superior Court.
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Appellant did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

      After unsuccessfully seeking post-conviction relief in two PCRA

petitions, as well as a petition for habeas corpus relief in federal court,

Appellant filed a third PCRA on May 23, 2012. After issuing proper notice,

the PCRA court dismissed Appellant’s third petition as untimely on

September 27, 2012. Appellant filed a timely pro se appeal. In an

unpublished memorandum filed on July 3, 2013, this Court affirmed the

denial of post-conviction relief. See Commonwealth v. Williams, 82 A.3d

1054 (Pa. Super. 2013) (Table).

      Appellant filed the counselled PCRA at issue—his fourth—on August 3,

2015. On October 9, 2015, the PCRA court issued notice of its intent to

dismiss the petition without a hearing because it was untimely. Appellant’s

counsel filed a response. By ordered entered October 30, 2015, the PCRA

court dismissed Appellant’s fourth PCRA petition. This timely appeal follows.

      Before   addressing   Appellant’s   substantive   issues   we   must   first

determine whether the PCRA court correctly concluded that Appellant’s latest

PCRA petition was untimely filed.

      The timeliness of a post-conviction petition is jurisdictional. See

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, that an

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exception to the time for filing the petition, set forth at 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii), is met. A PCRA petition invoking one of these statutory

exceptions must “be filed within 60 days of the date the claims could have

been presented.” Hernandez, 79 A.3d 651-52 (citing 42 Pa.C.S.A. §

9545(b)(2)). Finally, exceptions to the PCRA’s time bar must be pled in the

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

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

Pa.R.A.P. 302(a).

      Appellant’s judgment of sentence became final on January 20, 2005,

when the thirty-day time period for filing a petition for allowance of appeal

with our Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus,

Appellant had until January 20, 2006, to file a timely PCRA petition. As

Appellant filed the instant petition over nine years later, it is patently

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies. See Hernandez.

      Appellant asserts that his latest PCRA petition is timely because he

filed it within sixty days of our Supreme Court’s decision in Commonwealth

v. Hopkins, 117 A.3d 247 (Pa. 2015). According to Appellant, Hopkins

“declares a newly stated constitutional right, affirming the federal rules that

state that any enhancement of a criminal charges must be found beyond a

reasonable doubt, by a jury and any sentencing enhancement which is

applied only by the [j]udge at sentencing is unconstitutional.” Appellant’s

Brief at 12.

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Hopkins is inapposite. There our Supreme Court held that, under Alleyne

v. United States, 133 S.Ct. 2151 (2013), the mandatory minimum

sentencing scheme set forth in 18 Pa.C.S.A. § 6317 (involving Drug Free

school zones) is unconstitutional in its entirety. See 117 A.2d at 262.

Hopkins was decided on direct appeal; it did not address whether Alleyne

applied retroactively to cases on collateral review. As such, Appellant cannot

rely upon Hopkins to satisfy the newly created constitutional right exception

to the PCRA’s time bar. See 42 Pa.C.S.A. § 9545(b)(1)(iii).1 Moreover,

Appellant cannot rely on Hopkins, to satisfy the newly discovered fact

exception to the PCRA’s time bar, because “[o]ur courts have expressly

rejected the notion that judicial decisions can be considered newly-

discovered facts[.]” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.

Super. 2013) (citations omitted).

       Although Appellant refers to the Hopkins decision, his true claim is

that Alleyne decision should apply retroactively to the sentence imposed

upon him in 2003. In Alleyne, the high court held that any fact that

____________________________________________


1
  Appellant’s reliance upon the United States Supreme Court’s decision in
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), is also misplaced.
Montgomery held that its prior decision in Miller v. Alabama, 132 S.Ct.
2455, which held it unconstitutional for states to sentence a juvenile
homicide defendant to life in prison without the possibility of parole,
constituted a new substantive rule that must be applied retroactively to
cases on collateral review. Miller has no application to the crimes committed
by Appellant or the sentence he received for them.




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increased the mandatory minimum sentence for a crime is an element

thereof, which must be submitted to a jury and found beyond a reasonable

doubt. See 133 S.Ct. at 2155.

      Appellant’s claim fails for two reasons. First, Alleyne was decided in

June 2013 and Appellant did not file the instant petition until almost two

years later. Thus, his claim would fail because he did not file his petition

within sixty days of the of the Alleyne decision. See 42 Pa.C.S.A. §

9545(b)(2). And, second, this Court has repeatedly held that Alleyne has

not been held to apply retroactively to cases such as Appellant’s where the

judgment of sentence became final prior to the Alleyne decision. See, e.g.,

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

      Thus, for all of the above reasons, we affirm the PCRA court’s order

dismissing Appellant’s serial PCRA petition.

      Order affirmed.

      President Judge Emeritus Stevens joins the memorandum and Judge

Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2016


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