J-S35021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

JAMES NAUGHTON,

                          Appellant                 No. 1603 WDA 2016


            Appeal from the PCRA Order entered September 22, 2016,
               in the Court of Common Pleas of Allegheny County,
              Criminal Division, at No(s): CP-02-CR-0007535-2007.


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                             FILED JULY 26, 2017

      Appellant, James Naughton, appeals pro se from the order entered

September 22, 2016, denying as untimely his serial petition filed pursuant to

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

      The pertinent facts and extensive procedural history, as gleaned from

our review of the certified record, are as follows:     On March 18, 2008,

Appellant entered a negotiated guilty plea to multiple sexual offenses

involving a minor. That same day, in accordance with the plea agreement,

the trial court imposed a sentence of five to ten years of incarceration.

Appellant filed neither a post-sentence motion nor a direct appeal.

      Appellant timely filed a first PCRA petition on September 11, 2008, but

later withdrew it.     On January 5, 2012, Appellant filed a second PCRA

petition.    The PCRA court appointed counsel, who later filed a petition to

*Former Justice specially assigned to the Superior Court.
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withdraw and “no-merit” letter pursuant to pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc), opining that Appellant’s latest PCRA

petition was untimely and that Appellant was unable to establish any

exception to the PCRA’s time bar. Agreeing with this assessment, the PCRA

court, after proper notice, dismissed this petition on April 19, 2012, and this

Court dismissed the subsequent appeal for failure to file a brief. On October

7, 2014, Appellant filed a petition for writ of habeas corpus. The PCRA court

correctly treated Appellant’s filing as a third, untimely PCRA petition and,

after proper notice, dismissed it without a hearing on March 10, 2015.

      Appellant timely appealed to this Court.    Although he acknowledged

that this petition was facially untimely, he claimed that he qualified for an

exception to the PCRA’s time bar because the United States Supreme Court

announced a new constitutional right in Alleyne v. United States, 133 S.

Ct. 2151 (2013).    In an unpublished memorandum filed on January 20,

2016, we rejected Appellant’s claim and affirmed the denial of post-

conviction relief. See Commonwealth v. Naughton, 136 A.3d 1035 (Pa.

Super. 2016) (unpublished memorandum).

      On February 19, 2016, Appellant filed another habeas corpus petition

in which he again claimed that he was eligible for relief under Alleyne, given

the United States Supreme Court’s retroactivity analysis in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016). The PCRA court disagreed, and, again

after properly treating the filing as an untimely serial PCRA petition and

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providing appropriate notice, dismissed the petition by order entered

September 22, 2016. This timely appeal follows.

        Before me may address the issues Appellant raises on appeal, see

Appellant’s Br. at 1-3, we must first determine whether the PCRA court

correctly determined that Appellant’s serial petition for post-conviction relief

was untimely filed.       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)

(internal quotation marks and citations omitted).

        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

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

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S. § 9545. A PCRA petition

____________________________________________


1
    The 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.
(Footnote Continued Next Page)


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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).

       Appellant did not appeal from his judgment of sentence imposed on

March 18, 2008.        Thus, for purposes of the time restrictions of the PCRA,

Appellant’s judgment of sentence became final on or about April 17, 2008,

after the thirty-day period for requesting such relief expired. See 42 Pa.C.S.

§ 9545(b)(3). Therefore, Appellant needed to file the PCRA petition at issue

by April 17, 2009, in order for it to be timely. As Appellant filed the instant

petition on February 19, 2016, it is untimely unless he has satisfied his

burden of pleading and proving one of the enumerated exceptions.                  See

Hernandez, supra.

       Appellant has failed to prove an exception to the PCRA’s time bar.

Initially,   we   observe     that    Appellant   has   abandoned   his   claim   that

                       _______________________
(Footnote Continued)


       (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.A. §§ 9545(b)(1)(i), (ii), and (iii).




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Montgomery recognized the retroactive impact of Alleyne, as asserted in

his petition.       Rather, Appellant cites in support Commonwealth v.

Vasquez, 744 A.2d 1284 (Pa. 2000), for the proposition that trial courts

never relinquish their jurisdiction to correct illegal sentences.                 See

Appellant’s Br. at 7-9. Thus, according to Appellant, there is no time-bar to

reviewing the trial court’s application of the mandatory minimum imposed

upon him pursuant to 42 Pa.C.S. § 9714, a statutory provision deemed

unconstitutional by subsequent Pennsylvania case law applying Alleyne.

        Appellant’s argument is being raised for the first time on appeal.

Thus,    it   is   waived,   and   we   need   not   consider   it   further.     See

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

Pa.R.A.P. 302(a).      Absent waiver, we note that Appellant’s reliance upon

Vasquez is misplaced.         Although Appellant challenges the legality of his

sentence, this claim still must be presented in a timely PCRA petition.

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).                     This is

because the timeliness of a post-conviction petition is jurisdictional.

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

addition, we reiterate our prior memorandum’s conclusion that our Supreme

Court has unequivocally held that Alleyne does not apply retroactively to

cases pending on collateral review.        See generally, Commonwealth v.

Washington, 142 A.3d 810 (Pa. 2016).




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      Thus, for these reasons, the PCRA court correctly concluded that it

lacked jurisdiction to address Appellant’s serial PCRA petition. We therefore

affirm its order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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