J-S95045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
           v.                               :
                                            :
KENYATTA JAVON HUGHSTON,                    :
                                            :
                  Appellant                 :        No. 2564 EDA 2016

                  Appeal from the PCRA Order August 1, 2016
              in the Court of Common Pleas of Delaware County,
              Criminal Division, No(s): CP-23-CR-0000897-2008

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED MARCH 29, 2017

     Kenyatta Javon Hughston (“Hughston”), pro se, appeals from the

Order dismissing his fifth Petition for relief filed pursuant to the Post

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

     On March 6, 2009, following a jury trial, Hughston was convicted of

two counts of robbery, and one count each of criminal conspiracy, forgery,

and possession of an instrument of crime. On June 15, 2009, the trial court

imposed an aggregate prison term of 132 to 300 months. Hughston did not

file a direct appeal. Hughston subsequently filed four PCRA Petitions, all of

which were dismissed. This Court affirmed each dismissal.

     On June 13, 2016, Hughston, pro se, filed the instant PCRA Petition,

his fifth. The PCRA Court issued a Pa.R.Crim.P. 907 Notice, and Hughston

filed a Response.     Thereafter, the PCRA Court dismissed the Petition.

Hughston filed a timely Notice of Appeal.
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            We review an order dismissing a petition under the PCRA
       in the light most favorable to the prevailing party at the at the
       PCRA level. The review is limited to the findings of the PCRA
       court and the evidence of record. We will not disturb a PCRA
       court’s ruling if it is supported by evidence of record and is
       free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

     Initially, under the PCRA, any PCRA petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 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 at the expiration of time for seeking

the review.”   Id. § 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.      See Commonwealth v.

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

     Hughston’s sentence became final on July 15, 2009, after the time to

seek review with this Court had expired.     See Pa.R.A.P. 903(a). A timely

PCRA petition had to be filed by July 15, 2010. Hughston filed his Petition

on June 13, 2016; thus, it was untimely on its face.

     However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii).   Any petition invoking one of these




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exceptions, “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 992 A.2d at 1094.

      Here, Hughston invokes the newly-recognized constitutional right

exception, and argues that United States v. Johnson, 135 S. Ct. 2551

(2015), renders his sentence under 42 Pa.C.S.A. § 9714 illegal.           In

Johnson, the United States Supreme Court declared that the residual clause

of the Armed Career Criminal Act violated due process rights by being

unconstitutionally vague on defining “violent felony.” Johnson, 135 S. Ct.

at 2563.

      Here, Hughston filed his Petition on June 13, 2016, almost a year after

the Supreme Court’s June 26, 2015 Johnson decision. Thus, Hughston did

not properly file the Petition within 60 days of the date on which the

Supreme Court issued the Johnson decision.            See Commonwealth v.

Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (stating that a petitioner

invoking the newly recognized constitutional right exception must file their

petition within sixty days of the date of the court’s decision).

      Further, Hughston does not demonstrate that Johnson renders the

mandatory sentence codified at 42 Pa.C.S.A. § 9714 unconstitutional, or that

Johnson applies retroactively.

      Moreover, Hughston’s ineffective assistance of counsel claims do not

not invoke a valid exception to the PCRA’s timeliness requirement.       See




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Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000); see also

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).1

      Finally, Hughston claims that he was never convicted of aggravated

assault, a prior conviction used to impose the mandatory minimum under

section 9714. However, Hughston previously litigated this claim in his fourth

PCRA Petition.    See Commonwealth v. Hughston, 122 A.3d 447 (Pa.

Super. 2015) (unpublished memorandum at 9 n. 8). Thus, Hughston is not

entitled to relief. See 42 Pa.C.S.A. § 9543(a); id. § 9544(a).

      Based upon the foregoing, Hughston has failed to plead and prove any

exception under section 9545(b)(1) to overcome the untimeliness of his

Petition.2

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017

1
  Hughston’s reliance upon Lafler v. Cooper, 132 S. Ct. 1376 (2012), and
Missouri v. Frye, 132 S. Ct. 1399 (2012), is misplaced. This Court has
previously concluded that neither case created a new constitutional right
that would invoke a time-bar exception.        See Commonwealth v.
Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013).
2
 The PCRA court did not err in dismissing the Petition without a hearing, as
Hughston filed an untimely PCRA Petition and did not invoke any valid
exceptions to the timeliness requirement. See Commonwealth v. Garcia,
23 A. 3d 1059, 1066 n.9 (Pa. Super. 2011).


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