J.S45034/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
A.D.H.,                                      :
                                             :
                          Appellant          :    No. 317 MDA 2015

                 Appeal from the PCRA Order February 5, 2015
                In the Court of Common Pleas of Adams County
               Criminal Division No(s).: CP-01-CR-0000720-2009


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED AUGUST 21, 2015

        Appellant, A.D.H.,1 appeals pro se from the order of the Adams County

Court of Common Pleas that dismissed his second Post Conviction Relief Act2

(“PCRA”) petition as untimely.        Appellant asserts that he timely raised a

claim that his sentence is illegal under Alleyne v. United States, 133 S. Ct.

2151 (2013), and Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.

2014). We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
  We have amended the caption in this appeal to refer to Appellant by his
initials, and will do so throughout this memorandum.
2
    42 Pa.C.S. §§ 9541-9546.
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        Appellant was convicted of sexual offenses and, on November 12,

2012, was sentenced to thirteen to thirty years’ imprisonment, based, in

part, upon the trial court’s finding that the mandatory sentencing provision

in 42 Pa.C.S. § 9718 applied.3          This Court affirmed the judgment of

sentence on June 20, 2012. Commonwealth v. A.D.H., 1639 MDA 2011

(unpublished memorandum) (Pa. Super. June 20, 2012). Appellant did not

seek allowance of appeal in the Pennsylvania Supreme Court.

        Appellant filed a first, timely PCRA petition on August 22, 2012, which

the PCRA court denied on August 6, 2013, after appointing counsel and

holding an evidentiary hearing. This Court affirmed on April 11, 2014, and

the Pennsylvania Supreme Court denied allowance of appeal on August 21,

2014.     See Commonwealth v. A.D.H., 1535 MDA 2013 (unpublished

memorandum) (Pa. Super. Apr. 11, 2014), appeal denied, 97 A.3d 742 (Pa.

Aug. 21, 2014).

        Four days later, on August 25, 2014,4 Appellant filed the instant pro se

second PCRA petition, alleging his sentence was illegal under Alleyne. The

PCRA court, on September 16, 2014, issued an order apprising Appellant

that it would dismiss the petition as untimely and granting Appellant thirty

3
  Section 9718 set forth mandatory minimum sentences for offenses against
infant persons.
4
  Although not received by the PCRA court until August 27, 2014, the
envelope bearing Appellant’s pro se petition was post-marked August 25,
2014. See Commonwealth v. Little, 716 A.2d 1287, 1288-89 (Pa. Super.
1998) (discussing prisoner mailbox rule).



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days to respond. See Pa.R.Crim.P. 907. Appellant filed a response, as well

as a petition for leave to amend his petition that cited this Court’s December

24, 2014 decision in Wolfe.         The PCRA court, on February 5, 2015,

dismissed the petition as untimely. This timely appeal followed.5

      Appellant asserts his sentence is illegal in light of Alleyne and Wolfe.

He argues courts retain the authority to correct an illegal sentence.      He

relies on Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), to claim

he timely presented this claim after his appeals from his first PCRA petition

were exhausted. No relief is due.

      The standards governing our review are well settled. “[W]e 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.”    Commonwealth v. Miller, 102 A.3d

988, 992 (Pa. Super. 2014) (citations and quotation marks omitted).

      This Court has previously summarized a court’s authority to consider

legality of sentencing claims under the PCRA:

         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 PCRA petition for which no time-bar exception
         applies, thus depriving the court of jurisdiction over the
         claim.”

5
 Appellant complied with the trial court’s order to file and serve a Pa.R.A.P.
1925(b) statement.



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       “The PCRA’s time restrictions are jurisdictional in nature.
       Thus, [i]f a PCRA petition is untimely, neither this Court
       nor the trial court has jurisdiction over the petition.
       Without jurisdiction, we simply do not have the legal
       authority to address the substantive claims.” Statutory
       time limitations “are mandatory and interpreted literally;
       thus, a court has no authority to extend filing periods
       except as the statute permits.”

       [W]e articulated the timeliness standards under the PCRA
       as follows:

          The PCRA “provides for an action by which persons
          convicted of crimes they did not commit and persons
          serving illegal sentences may obtain collateral relief.”
          When an action is cognizable under the PCRA, the
          PCRA is the “sole means of obtaining collateral relief
          and encompasses all other common law and
          statutory remedies for the same purpose[.]”

          In order for a court to entertain a PCRA petition, a
          petitioner must comply with the PCRA filing deadline.
          The time for filing a petition is set forth in 42
          Pa.C.S.[ ] § 9545(b), which provides in relevant
          part:

              (b) Time for filing 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;


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                    (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.

                                 *    *    *

           . . . “If the petition is determined to be untimely, and
           no exception has been pled and proven, the petition
           must be dismissed without a hearing because
           Pennsylvania courts are without jurisdiction to
           consider the merits of the petition.”

Commonwealth v. Seskey, 86 A.3d 237, 241-42 (Pa. Super.) (citations

omitted), appeal denied, 101 A.3d 103 (Pa. 2014).

     More specifically, this Court has previously held that Alleyne, and its

current Pennsylvania progeny, do not establish an exception to the PCRA

time-bar under 42 Pa.C.S. § 9545(b)(1)(iii).

           Subsection (iii) of Section 9545[(b)(1)] has two
        requirements. First, it provides that 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 provided in this section.
        Second, it provides that the right “has been held” by “that
        court” to apply retroactively. Thus, a petitioner must
        prove that there is a “new” constitutional right and that the
        right “has been held” by that court to apply retroactively.
        The language “has been held” is in the past tense. These


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         words mean that the action has already occurred, i.e.,
         “that court” has already held the new constitutional right
         to be retroactive to cases on collateral review. By
         employing the past tense in writing this provision, the
         legislature clearly intended that the right was already
         recognized at the time the petition was filed.

                                 *    *    *

            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 [an] argument
         regarding the PCRA time-bar.

Miller, 102 A.3d at 994-95.

      Instantly, Appellant’s conviction became final on July 20, 2012, thirty

days after this Court affirmed the judgment of sentence and the time for

filing a petition for allowance of appeal lapsed. Thus, the time for filing a

facially timely PCRA petition expired one year later, on Monday, July 22,

2013. See 1 Pa.C.S. § 1908; 42 Pa.C.S. § 9545(b)(1). Although Appellant’s

claims go to the legality of his sentence, he bore the burden of establishing

jurisdiction by demonstrating an exception to the PCRA time-bar.         See

Seskey, 86 A.3d at 241-42.

      Although Appellant seeks relief based on Alleyne and Wolfe, those

decisions do not constitute timeliness exceptions under 42 Pa.C.S. §

9545(b)(1)(iii).6   See Miller, 102 A.3d at 994-95.    We are mindful that


6
  Indeed, although Alleyne has been applied “retroactively” in cases on
direct review, this Court recently held Alleyne does not apply on collateral



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Appellant filed the instant petition within sixty days of the conclusion of his

appeals from his first PCRA petition. However, because Appellant’s threshold

assertion of a time-bar exception based on Alleyne and Wolfe fails, his

reliance on Lark as an independent exception to the PCRA time-bar is

misplaced. Thus, we agree with the PCRA court that Appellant’s petition was

untimely and did not invoke jurisdiction to consider the merits of his claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




review. Commonwealth v. Riggle, ___ A.3d ___, ___, 2015 WL 4094427,
at *6 (Pa. Super. July 7, 2015); see generally Cleveland v. Johns-
Manville Corp., 690 A.2d 1146, 1150 n.8 (Pa. 1997) (describing (1)
“‘retroactive effect’” “in which the new rule is applied to the case in which it
is announced and all other cases then pending on direct review where the
issue is raised,” and (2) “‘fully retroactive effect’” “in which the new rule is
applied even where the issue has been finally decided at the time of the
decision announcing the new rule but later is asserted in collateral
proceedings.”).



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