J-S56044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRIAN KEITH BENNER,

                            Appellant                 No. 227 EDA 2017


                Appeal from the PCRA Order November 16, 2016
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0000320-2008


BEFORE: BOWES, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 29, 2017

        Appellant, Brian Keith Benner, appeals, pro se, from the order of

November 16, 2016, dismissing, without a hearing, his first petition filed

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

9546. Because the petition is untimely without an applicable exception, we

affirm.

        We take the underlying facts and procedural history in this matter

from this Court’s August 18, 2010 memorandum and our independent review

of the certified record.

              [Appellant] was charged with over ninety counts relating to
        child pornography. He entered an open plea of guilty to ten of
        the counts on June 23, 2008. . . . [After an issue arose
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     concerning the timeliness of the Commonwealth’s notice of
     intent to seek the mandatory minimum sentence, the trial court
     held a hearing on the issue].

                                    *     *     *

           . . . [Ultimately, the trial] court heard argument on the
     issue of whether the notice was untimely under [42 Pa.C.S.A. §
     9718.2(d)]. By order filed on February 2, 2009, [the trial] court
     decreed that it would impose the mandatory minimum sentence
     upon proof of the facts required by subsection 9718.2(a), but
     also expressly granted [Appellant] leave to withdraw his guilty
     plea if he so desired. Because sentencing was not scheduled
     until [July 7], 2009, [Appellant] was given ample time to
     withdraw his open plea if he wished to do so. When the date for
     the sentencing hearing arrived, [Appellant] declined to withdraw
     his plea, and [the trial] court imposed concurrent mandatory
     minimum sentences.

(Commonwealth       v.   Benner     No.       2329   EDA   2009,   unpublished

memorandum at *2-3 (Pa. Super. filed Aug. 18, 2010) (quoting Trial Court

Opinion, 10/15/09, at 1-2) (footnote omitted)).      On August 18, 2010, this

Court affirmed the judgment of sentence. The Pennsylvania Supreme Court

denied leave to appeal on February 9, 2011.          (See Commonwealth v.

Benner, 17 A.3d 1250 (Pa. 2011)).

     On June 16, 2016, Appellant, acting pro se, filed the instant PCRA

petition seeking to vacate his sentence pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013). The PCRA court appointed counsel on July

29, 2016.

     On October 20, 2016, the PCRA court issued notice of its intent to

dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure

907(1). On November 16, 2016, the PCRA court dismissed the petition as

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untimely. On November 18, 2016, PCRA counsel submitted a petition to

withdraw as counsel, attached to it was a Turner/Finley1 letter.2             On

November 29, 2016, the PCRA court granted counsel’s request to withdraw.

On December 13, 2016,3 Appellant filed a concise statement of errors

complained of on appeal.         See Pa.R.A.P. 1925(b).   On January 3, 2017,4

Appellant filed a notice of appeal.5 On March 6, 2017, the PCRA court issued

an opinion. See Pa.R.A.P. 1925(a).

____________________________________________


1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2
  The Turner/Finley letter, which is addressed to the PCRA court is dated
September 26, 2016. It appears that PCRA counsel sent a copy of the letter
to Appellant that same day. (See Petition for Leave to Withdraw as Counsel,
11/18/16, at Exhibit A). It is not readily apparent why counsel, as is proper,
did not file the Turner/Finley letter prior to the dismissal of the PCRA
petition. However, it is clear that counsel did notify Appellant of his intent to
withdraw and explained why the petition was untimely with no exceptions
applying.

3
  December 13, 2016, is the date Appellant delivered the document to prison
officials for mailing. “[T]he prisoner mailbox rule provides that a pro se
prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011) (citation omitted).
4
    Again, this is the mailing date. See Chambers, supra at 38.

5
  We note that while Appellant filed his Rule 1925(b) statement sua sponte,
he filed it within the thirty-day appeal period. He did not file his notice of
appeal within that period. However, the rules for filing notices of appeal
“shall be liberally construed to secure the just, speedy and inexpensive
determination of every matter to which they are applicable.” Pa.R.A.P.
105(a).     It is evident that Appellant sought to obtain relief from the
dismissal of his PCRA petition and thought that by filing the Rule 1925(b)
(Footnote Continued Next Page)


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      On appeal, Appellant raises the following questions for our review:

            I. Did the [PCRA] court, Court of Common Pleas of
      Montgomery County, err as a matter of law when it determined
      that a new rule of law announced by the United States Supreme
      Court was not applicable to Appellant’s judgement of sentence?

             II. Was Appellant denied due process of law during
      collateral proceedings challenging the judgement of sentence?

           III. Is [Appellant] serving illegal and unconstitutional
      sentences?

            IV. [Are Appellant’s] illegal and unconstitutional sentences
      subject to correction?

             V. Does the sentencing court retain the power
      (jurisdiction) to correct illegal and unconstitutional sentences
      [Appellant] is serving?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

      Our standard of review for an order denying PCRA relief is well-settled:

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record. . . .

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

                       _______________________
(Footnote Continued)

statement he was so doing, yet lacked the legal knowledge to realize that he
first needed to file a notice of appeal. In the interest of judicial economy we
will regard as done what ought to have been done and deem Appellant’s
Pa.R.A.P. 1925(b) statement as a timely filed notice of appeal. See id.; see
also Zitney v. Appalachian Timber Products, Inc., 72 A.3d 281, 285
(Pa. Super. 2013).



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trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

      Here, Appellant filed his PCRA petition on June 16, 2016. The PCRA

provides that “[a]ny petition under this subchapter, including a second or

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

becomes final[.]”   42 Pa.C.S.A. § 9545(b)(1).       Appellant’s judgment of

sentence as to these matters became final on May 10, 2011, ninety days

after the Pennsylvania Supreme Court denied leave to appeal and Appellant

did not file a petition for a writ of certiorari with the United States Supreme

Court.   See U.S.Sup.Ct.R. 13.    Because Appellant did not file his current

petition until June 16, 2016, the petition is facially untimely.      See 42

Pa.C.S.A. § 9545(b)(1). Thus, he must plead and prove that he falls under

one of the exceptions at Section 9545(b) of the PCRA. See id.

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully 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.

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Id. at § 9545(b)(1)(i)-(iii).    Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”                Id. at § 9545(b)(2).        The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).

      In the instant matter, Appellant appears to contend that his petition is

timely under Section 9545(b)(1)(iii), specifically that the United States

Supreme Court’s decision in Alleyne, supra renders his sentence illegal.

(See Appellant’s Brief, at 8-14). Further, Appellant contends that the U.S.

Supreme Court’s decisions in Montgomery v. Louisiana, 136 S.Ct. 718

(2016), and Welch v. United States, 136 S.Ct. 1257 (2016) render his

PCRA petition timely. (See id.). We disagree.

      Initially, we note that the fact that Appellant challenges the legality of

his   sentence   does   not     allow   him    to   evade   the   PCRA’s   timeliness

requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the

Pennsylvania Supreme Court rejected this contention.               The Fahy Court

stated, “[a]lthough legality of sentence is always subject to review within the

PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto.” Id. at 223 (citation omitted). Thus, Appellant cannot




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elude the PCRA’s timeliness requirements based on a claim of an illegal

sentence. See id.

       Moreover, “a new rule of constitutional law is applied retroactively to

cases on collateral review only if the United States Supreme Court or the

Pennsylvania Supreme Court specifically holds it to be retroactively

applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266,

271 (Pa. Super. 2016) (citation omitted).            Neither Court has held that

Alleyne is applied retroactively.          Further, in a decision that post-dates

Montgomery and Welch,6 our Supreme Court has unequivocally held that

Alleyne does not apply retroactively to cases pending on collateral review.

See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

       Here, Appellant was sentenced in 2009.          His judgment of sentence

became final in 2011. Thus, this matter is clearly on collateral review, and

his PCRA petition is facially untimely.          Because Alleyne does not apply

retroactively to cases on collateral review, it cannot afford Appellant relief.

See id.; see also Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.

Super. 2015); Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.

2014).



____________________________________________


6
  Appellant does not point to any cases that have held that the decision in
Montgomery or Welch renders Alleyne retroactive to cases on collateral
review. (See Appellant’s Brief, at 8-14).



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     Thus, Appellant’s PCRA petition is untimely with no statutory exception

to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly,

we affirm the order of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017




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