        J-S84026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MATTHEW LEE CHANG

                            Appellant                 No. 1328 EDA 2016


                Appeal from the PCRA Order Dated November 24, 2015
                   In the Court of Common Pleas of Monroe County
                 Criminal Division at No(s): CP-45-CR-0000376-2010


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 29, 2016

        Appellant, Matthew Lee Chang, appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. The PCRA court denied relief on the basis that Appellant’s

petition was untimely, and therefore not within its jurisdiction. Upon review,

we affirm.

        On January 13, 2011, a jury convicted Appellant of two counts of

possession with intent to deliver pursuant to 35 P.S. § 780-113(a)(30). On

March 28, 2011, the trial court sentenced Appellant to an aggregate 57 to

120 months’ incarceration. In imposing the sentence, the trial court applied

____________________________________________

*
    Former Justice specially assigned to the Superior Court.
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the mandatory minimum sentence prescribed for drug trafficking under

Section 7508 of the Crimes Code, which was the law at the time Appellant

was sentenced.     Relevant to Appellant, Section 7508 provided for the

following sentence:

     when the aggregate weight of the compound or mixture
     containing the substance involved is at least 2.0 grams and less
     than ten grams; one year in prison and a fine of $5,000 or such
     larger amount as is sufficient to exhaust the assets utilized in
     and the proceeds from the illegal activity; however, if at the time
     of sentencing the defendant has been convicted of another drug
     trafficking offense: three years in prison and $10,000 or such
     larger amount as is sufficient to exhaust the assets utilized in
     and the proceeds from the illegal activity; . . .

18 Pa.C.S. § 7508(a)(3)(i). Appellant filed a motion for reconsideration on

March 31, 2011, which the trial court denied on April 25, 2011. Appellant

filed a   direct appeal, and we       affirmed the   judgment of sentence.

Commonwealth v. Chang, No. 1419 EDA 2011 (Pa. Super. December 28,

2011) (unpublished memorandum). Appellant did not seek allowance of an

appeal by the Pennsylvania Supreme Court.

     In 2013, the U.S. Supreme Court held in Alleyne v. United States,

133 S.Ct. 2151 (2013), that any fact that increases a mandatory minimum

sentence for a crime is an element of the crime that must be proven before

a jury beyond a reasonable doubt.      The following year, we held that the

mandatory    minimum     sentencing     scheme   under    Section   7508   is

“unconstitutional in its entirety” in light of Alleyne.   Commonwealth v.

Vargas, 108 A.3d 858, 876 (Pa. Super. 2014) (en banc), appeal denied,

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121 A.3d 496 (Pa. 2015); see also Commonwealth v. Mosley, 114 A.3d

1072 (Pa. Super. 2015). On July 16, 2015, Appellant filed a pro se PCRA

petition asserting that his sentence was “a nullity” based on Alleyne and its

Pennsylvania progeny. PCRA Petition, 7/16/15.

       On July 27, 2015, the PCRA court issued a Rule 907 notice of its intent

to dismiss Appellant’s PCRA petition on the ground that it had no jurisdiction

to decide it because the petition was “not timely filed and . . . [Appellant]

has not plead any statutory exception that would permit the court to hear

and decide a late filed petition.”             Appellant filed a pro se objection on

August 14, 2015.       On September 9, 2015, counsel entered an appearance

on Appellant’s behalf.1 After obtaining an extension of time, counsel filed a

response to the Rule 907 notice on September 24, 2015. The PCRA court

held a hearing on November 23, 2015 and dismissed the PCRA petition the

next day.     Appellant did not file a timely appeal.        On February 24, 2016,

Appellant filed a motion to reinstate his appellate rights nunc pro tunc. The
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1
  The PCRA court did not initially appoint counsel to represent Appellant, in
contravention of Pa.R.Crim.P. 904(C) (when an unrepresented defendant
satisfies the judge that the defendant is unable to afford or otherwise
procure counsel, the judge shall appoint counsel to represent the defendant
on the defendant’s first petition for post-conviction collateral relief).
Eventually, the PCRA court appointed the Monroe County Public Defender’s
Office to represent Appellant as part of its July 27, 2015 order providing the
Rule 907 notice of its intent to dismiss the PCRA petition. The Monroe
County Public Defender’s Office has represented Appellant since it entered
its appearance on September 9, 2015, and Appellant has not made any
claim relative to the delay in his legal representation.



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PCRA court granted Appellant’s motion on April 7, 2016, and extended the

time to file an appeal to May 8, 2016. Appellant filed this appeal on May 2,

2016.

        Appellant presents the following issue:

                    WHETHER THE PCRA COURT ERRED IN
               DENYING THE APPELLANT’S PCRA PETITION AS
               UNTIMELY FILED AND NOT WITHIN ANY APPLICABLE
               EXCEPTION TO ALLOW FOR CONSIDERATION OF
               THE MERITS OF THE PETITION?

                    (A) WHETHER ANY OBJECTION TO AN ILLEGAL
               SENTENCE CAN BE WAIVED?

Appellant’s Brief at 4.

        Appellant argues that his sentence “is illegal and as such must be

vacated.” Appellant’s Brief at 7. In support of his assertion, Appellant cites

decisions by the Supreme Court of Pennsylvania and this Court, which have

held    that   various    provisions   of   Pennsylvania’s   mandatory   minimum

sentencing statutes are unconstitutional in light of Alleyne. See Appellant’s

Brief at 7-9, citing Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015),

and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).

Appellant concedes that under “the current state of the law he may not be

procedurally able to challenge the legality of his sentence,” id. at 9, and he

references the Pennsylvania Supreme Court’s September 18, 2015 allowance

of an appeal in Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015), to

determine “whether a challenge to a sentence pursuant to Alleyne

implicates the legality of the sentence and is therefore non-waivable.” See
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Appellant’s Brief at 7.           As of this writing, the Barnes appeal remains

pending before the Pennsylvania Supreme Court,2 and the law as it stands is

that a legality of sentence claim may “be lost should it be raised . . . in an

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

depriving the court of jurisdiction over the claim.”             Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa. Super. 2014), citing Commonwealth v.

Seskey, 86 A.3d 237, 242 (Pa. Super. 2014).

        Accordingly, before we may address the merits of Appellant’s

argument, we must determine whether the trial court correctly held that it

lacked jurisdiction to decide Appellant’s petition because it is untimely. Our

review of the PCRA court’s order is limited to ascertaining whether the

record supports the determination of the PCRA court and whether that

court’s ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d

523, 532 (Pa. 2009).        We defer to the factual findings of the PCRA court,

“but its legal determinations are subject to our plenary review.” Id.

        The   timeliness     of     a   post-conviction   petition   is   jurisdictional.

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

Generally, a petition for relief under the PCRA must be filed within one year

of the date the judgment is final unless the petition alleges and the

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2
    The case was argued on September 13, 2016, at Docket No. 36 EAP 2015.




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petitioner proves one of the three exceptions to the time limitations for filing

the petition set forth in Section 9545(b)(1) of the statute. 3 A PCRA petition

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

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

651-52 (citing 42 Pa.C.S. § 9545(b)(2)).             Asserted exceptions to the time

restrictions in the PCRA must be included in the petition and may not be

raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007).

        Appellant recognizes that his argument based on Alleyne may be

presented as an exception to the PCRA’s time bar only if Alleyne has been

held by the Supreme Court to apply retroactively to cases on collateral

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3
    The three 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.

              (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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review, and that Alleyne has been held not to apply retroactively.

Appellant’s Brief at 7-9; see Commonwealth v. Washington, 142 A.3d

810, 820 (Pa. 2016).      Appellant nonetheless argues that “fundamental

fairness dictates that his sentence be vacated.” Appellant’s Brief at 9.

      In rejecting Appellant’s argument, we are bound by legal precedent.

Claims challenging a sentence’s legality and constitutionality are subject to

the PCRA’s jurisdictional time restrictions.   Commonwealth v. Fahy, 737

A.2d 214 (Pa. 1999); Commonwealth v. Grafton, 928 A.2d 1112 (Pa.

Super. 2007). The PCRA makes clear that compliance with the time limits

set forth in the Act is a jurisdictional prerequisite to bringing such a claim.

Therefore, because Appellant in this case failed to file his claim within the

statutorily prescribed time limit, the PCRA court was without jurisdiction to

hear his claim. As the PCRA court explained:

             Here, the Superior Court affirmed the Judgment of
      Sentence on December 28, 2011, and [Appellant] did not file a
      petition for allowance of appeal. As a result, his judgment of
      sentence became final on January 27, 2012, thirty (30) days
      after the Superior Court’s decision was entered. Thereafter,
      [Appellant] had one year, or until January 27, 2013, in which to
      file a PCRA petition. [Appellant] filed the instant petition on
      July 14, 2015, the date he mailed it from prison, three and one-
      half years after the judgment of sentence became final and two
      and one-half years after the PCRA filing deadline. As such, his
      petition is patently untimely.

             Since the petition is untimely, [Appellant] cannot be
      afforded relief under the PCRA unless he pleads and proves one
      of the Section 9545 exceptions to the time bar. The petition, as
      filed, does not overcome this hurdle.


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            Initially, a review of the PCRA petition shows that
      [Appellant] does not specifically plead any of the three
      exceptions. This is especially true of the first two exceptions
      since nothing in the petition even remotely suggests interference
      by government officials or the discovery of new facts. Thus, to
      date, he has failed to invoke any of the exceptions. For this
      reason alone the Petition may be dismissed.

PCRA Court Order, 7/27/15, at 4.

      We conclude that the record supports the PCRA court’s determination

that it was without jurisdiction to review Appellant’s untimely PCRA petition.

We therefore affirm the order denying Appellant post-conviction relief.

      Order affirmed.

      Judgment Entered.




      Joseph D. Seletyn, Esq.

Prothonotary




      Date: 11/29/2016




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