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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
JUSTIN NICHOLSON,                           :
                                            :
                          Appellant         :
                                            :     No. 1555 WDA 2015

                Appeal from the PCRA Order September 24, 2015
        in the Court of Common Pleas of Fayette County Criminal Division
                        at No(s): CP-26-CR-0002034-2007

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 11, 2016

        Appellant, Justin Nicholson, appeals from the order entered in the

Fayette County Court of Common Pleas dismissing, as untimely, his first Post

Conviction Relief Act1 (“PCRA”) petition.       Appellant argues he received a

mandatory minimum sentence that is unconstitutional under Alleyne v.

U.S., 133 S. Ct. 2151 (2013).      We affirm.

         The relevant procedural history follows.       On February 1, 2010,

Appellant pleaded nolo contendere to robbery,2 terroristic threats,3 theft by



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3701(a)(1)(ii).
3
    18 Pa.C.S. § 2706(a)(1).
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unlawful taking,4 receiving stolen property,5 simple assault,6 and resisting

arrest.7    On March 3, 2010, the trial court sentenced Appellant to an

aggregate term of seven and one-half to fifteen years’ incarceration.       The

court informed Appellant, “ [a] BB gun qualifies as a deadly weapon under

18 [Pa.S.C. §] 2301 and qualifies as a firearm for the mandatory sentencing

purposes pursuant to 42 Pa.C.S.[ §] 9712(E).”             N.T. Sentencing Hr’g,

3/3/10, at 5-6. Appellant did not file a direct appeal.

        On March 27, 2015, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, and counsel filed an amended petition on June 10,

2015, wherein Appellant argued, inter alia, his sentence was illegal in light of

the United States Supreme Court’s decision in Alleyne and this Court’s

decision in Commonwealth v. Valentine, 101 A.3d 801, (Pa. Super.

2014), appeal denied, 124 A.3d 309 (Pa. 2015).8 The PCRA court scheduled

a video hearing on Appellant’s amended petition for September 24, 2015,

and dismissed the petition the same day.           PCRA Ct. Order, 9/24/15.



4
    18 Pa.C.S. § 3921(a).
5
    18 Pa.C.S. § 3925(a).
6
    18 Pa.C.S. § 2701(a)(3).
7
    18 Pa.C.S. § 5104.
8
  The Court in Valentine applied the principles of Alleyne and this Court’s
subsequent decisions and held Section 9712 is unconstitutional.       See
Valentine, 101 A.3d at 812.



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Appellant filed a timely notice of appeal and a court ordered Pa.R.A.P.

1925(b) statement. The PCRA court filed a responsive opinion.

      On appeal, Appellant raises the following issue for our consideration.

             Whether the holding of the United States Supreme
             Court in Alleyne . . . applies retroactively on post-
             conviction review?

Appellant’s Brief at 3.9

      Appellant argues that Alleyne applies retroactively to petitioners on

post-conviction review.      Id. at 12.    Appellant further contends, “requiring

him to serve an illegal sentence is manifestly unfair” and in violation of his

constitutional rights.     Id. at 12-13.   For the reasons that follow, we hold

Appellant is not entitled to relief.

      Our standard of review is well-settled:

             In reviewing the denial of PCRA relief, we examine
             whether the PCRA court’s determination is supported
             by the record and free of legal error. The scope of
             review is limited to the findings of the PCRA court
             and the evidence of record, viewed in the light most
             favorable to the prevailing party at the trial level. . .
             .   [T]his Court reviews the PCRA court’s legal
             conclusions de novo.

9
   Appellant also argues the PCRA court erred in determining he was not
subject to a mandatory minimum sentence because he pleaded “guilty.”
Appellant’s Brief at 3, 6. The certified record does not include a transcript of
the PCRA hearing, and the PCRA court did not file an opinion at the time of
its dismissal of Appellant’s petition suggesting the mandatory minimum did
not apply to Appellant. However, in its Rule 1925(a) opinion, the PCRA court
noted Appellant was subject to the Section 9712 mandatory sentencing
provision. PCRA Ct. Op., 10/19/15, at 1. At sentencing, the trial court also
referred to Section 9712. N.T., 3/3/10, at 5-6. Therefore, the record does
not support this claim, and we need not address it.



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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

     As a prefatory matter, “we must first consider the timeliness of

Appellant’s PCRA petition because it implicates the jurisdiction of this Court

and the PCRA court. . . . [W]hen ‘a PCRA petition is untimely, neither this

Court nor the trial court has jurisdiction over the petition.’” Id. (citations

omitted). The time for filing a PCRA is codified at 42 Pa.C.S. § 9545(b)(1):

            (b) Time for filing the 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 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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      This Court has considered whether Alleyne entitles an untimely PCRA

petitioner to relief under Section 9545(b)(1)(iii):

               Even assuming that Alleyne did announce a new
            constitutional right, neither our Supreme Court, nor
            the United States Supreme Court has held that
            Alleyne is to be applied retroactively to cases in
            which the judgment of sentence had become final.
            This is fatal to Appellant’s argument regarding the
            PCRA time-bar. This Court has recognized that a
            new rule of constitutional law is applied retroactively
            to cases on collateral review only if the United States
            Supreme Court or our Supreme Court specifically
            holds it to be retroactively applicable to those cases.

Miller, 102 A.3d at 995 (citations omitted).

      Instantly, Appellant was sentenced on March 3, 2010, and he did not

file a direct appeal.   Therefore, his judgment of sentence became final on

April 5, 2010,10 and he had a year from that date to file a timely PCRA

petition. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(1). Appellant filed his

PCRA petition on March 27, 2015, and it is facially untimely.         Appellant’s

position is that Alleyne applies retroactively, and Section 9545(b)(1)(iii)

entitles him to PCRA relief. Appellant’s Brief at 12. However, Miller held

that Alleyne does not meet Section 9545(b)(1)(iii)’s exception to the time-

bar. Miller, 102 A.3d at 995. Therefore, the PCRA court correctly dismissed

Appellant’s untimely PCRA petition, and we affirm. See id. at 992, 995.


10
   We note the 30th day following the imposition of sentence was Friday,
April 2, 2010. The Superior Court was closed on that date in observance of
Good Friday. Therefore, Appellant had until Monday, April 5, 2010 to file a
timely appeal. See 1 Pa.C.S. § 1908.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2016




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