J-S21034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

DANNY ANDREWS,

                           Appellant                 No. 2411 EDA 2015


                 Appeal from the PCRA Order July 13, 2015
           In the Court of Common Pleas of Philadelphia County
 Criminal Division at No(s): CP-51-CR-0135221-1991; CP-51-CR-1238162-
                                   1990

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

MEMORANDUM BY STEVENS, P.J.E.:                  FILED FEBRUARY 23, 2016

         Appellant appeals pro se from the order entered in the Court of

Common Pleas of Philadelphia County dismissing his third petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. The PCRA court dismissed the petition on the basis it was untimely

filed.   We affirm.

         The relevant facts and procedural history are as follows:   Appellant

was charged in separate criminal Informations with armed robberies of the

office workers at three separate apartment buildings (Garden Court

Apartments, Brynfield Court Apartments, and Korman Suites). A jury

convicted him on five counts of robbery, two counts of criminal conspiracy,




*Former Justice specially assigned to the Superior Court.
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and two counts of possessing an instrument of crime1 with regard to the

Garden Court Apartments and Korman Suites robberies. The jury acquitted

him of the offenses stemming from the Brynfield Court Apartments robbery.

        The trial court sentenced Appellant to an aggregate of 65 years to 130

years in prison. On direct appeal, this Court affirmed Appellant’s convictions,

but vacated and remanded for resentencing on the grounds that the trial

court failed to refer to the applicable sentencing                 guideline ranges.

Commonwealth           v.   Andrews,           641   A.2d   1218   (Pa.Super.   1993)

(unpublished memorandum), appeal denied, 647 A.2d 895 (1994), cert.

denied, 513 U.S. 1021 (1994).

        Upon remand, the trial court imposed the same term of imprisonment

as before. Appellant filed an appeal, and in a published opinion, on October

5, 1998, this Court affirmed the judgment of sentence. Commonwealth v.

Andrews, 720 A.2d 764 (Pa.Super. 1998).                 The Supreme Court granted

allowance of appeal and affirmed on March 26, 2001. Commonwealth v.

Andrews, 564 Pa. 321, 768 A.2d 309 (2001).                   Appellant did not file a

petition for a writ of certiorari with the U.S. Supreme Court.

        On March 5, 2002, Appellant filed a timely first PCRA petition, and

appointed counsel filed an amended PCRA petition. On September 28, 2004,

the PCRA court dismissed Appellant’s first petition, and on December 28,

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1
    18 Pa.C.S.A. §§ 3701, 903, and 907, respectively.



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2006, this Court affirmed. Commonwealth v. Andrews, 918 A.2d 781

(Pa.Super. 2006) (unpublished memorandum).            The Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Andrews,

592 Pa. 764, 923 A.2d 1172 (2007).

        On March 31, 2011, Appellant filed a second pro se PCRA petition, and

on October 24, 2011, the PCRA court dismissed Appellant’s second PCRA

petition. On May 30, 2012, this Court affirmed. Commonwealth v.

Andrews, 50 A.3d 253 (Pa.Super. 2012) (unpublished memorandum).

        On October 1, 2014, Appellant filed a third pro se PCRA petition, and

on May 28, 2015, the PCRA court provided Appellant with notice of its intent

to dismiss the petition under Pa.R.Crim.P. 907 on the basis it was untimely

filed. Appellant filed a response, and by order entered on July 13, 2015, the

PCRA court dismissed Appellant’s third PCRA petition on the basis it was

untimely filed. Appellant filed a timely pro se notice of appeal, and the PCRA

court subsequently filed an opinion.

        On appeal, Appellant presents the following issue:

        Is the Appellant’s sentence a nullity in light of this Court’s ruling
        in Commonwealth v. Newman[, 99 A.3d 86 (Pa.Super. 2014)
        (en banc)] in which the mandatory sentencing statutes have
        been found to be facially unconstitutional?

Appellant’s Brief.2


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2
    Appellant did not paginate his brief.



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      Preliminarily, we must determine whether Appellant’s third PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).    “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”         Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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 at the expiration of the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by   government     officials with   the

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                 presentation of the claim in violation of the Constitution
                 or the law of this Commonwealth or the Constitution or
                 law 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 Pennsylvania after
                 the time period provide in this section and has been
                 held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted).

       Here, on October 5, 1998, this Court affirmed Appellant’s judgment of

sentence, and the Supreme Court affirmed on March 26, 2001.            Appellant

did not file a petition for a writ of certiorari with the U.S. Supreme Court.

Therefore, his judgment of sentence became final on Monday, June 25,

2001, ninety days after our Supreme Court affirmed his judgment of

sentence and the time for filing a petition for a writ of certiorari expired.3

See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment becomes final at the

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3
 The ninetieth day fell on Sunday, June 24, 2001, and thus, Appellant had
until Monday, June 25, 2001, to file a petition for a writ of certiorari with the
U.S. Supreme Court. 1 Pa.C.S.A. § 1908.




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conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review[ ]”); U.S.Sup.Ct.R. 13 (providing “a

petition for a writ of certiorari seeking review of a judgment of a lower state

court that is subject to discretionary review by the state court of last resort

is timely when it is filed with the Clerk within 90 days after entry of the

order    denying      discretionary     review[   ]”).    Appellant,   thus,   had   until

approximately June 25, 2002, to file a timely PCRA petition. Appellant filed

the instant PCRA petition on October 1, 2014, and therefore, it is patently

untimely.

        Appellant does not allege that any of the timeliness exceptions are

applicable and, in fact, he avers “the Petitioner is not subject to any

timeliness constraints[.]” Appellant’s Brief. Instead, he alleges that under

Newman, supra his sentence is illegal and “resentencing is compulsory.”

In essence, Appellant suggests his claim of legality of sentence cannot be

waived on appeal.

        Claims   of     legality   of     sentence       are   generally   nonwaivable.

Commonwealth v. Brown, 71 A.3d 1009, 1010 (Pa.Super. 2013).

However, the fact that such claims are not waived does not mean that we

have jurisdiction to review them.            Waiver and jurisdiction are separate

matters. “Though not technically waivable, a legality [of sentence] claim

may nevertheless be lost should it be raised for the first time in an untimely


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PCRA petition for which no time-bar exception applies, thus depriving the

court of jurisdiction over the claim.” Commonwealth v. Slotcavage, 939

A.2d 901, 903 (Pa.Super. 2007) (citation omitted). Here, Appellant’s third

PCRA petition is untimely and no exception was proven.           Therefore, the

courts lack jurisdiction to consider the merits of the issues, including legality

of sentence, presented in the petition.4

       For all of the foregoing reasons, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2016



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4
  Assuming, arguendo, Appellant’s argument may be characterized as an
attempt to assert the “new constitutional right” exception to the PCRA time-
bar based on Newman, supra, we note that this Court’s decision in
Newman, which was a direct appeal, rested almost entirely on the holding
in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d
314 (2013). This Court has held that Alleyne does not apply retroactively
to cases on collateral review. See Commonwealth v. Riggle, 119 A.3d
1058 (Pa.Super. 2015); Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014) (holding Alleyne did not announce new constitutional right
that has been held to apply retroactively to satisfy PCRA’s time-bar
exception).     Accordingly, our decision in Newman would not render
Appellant’s third PCRA petition timely filed pursuant to the exception.



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