J-S37040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

FREELIN W. WRIGHT

                         Appellant                  No. 1888 WDA 2015


              Appeal from the PCRA Order November 18, 2015
             In the Court of Common Pleas of Crawford County
            Criminal Division at No(s): CP-20-CR-0000783-2000


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED MAY 09, 2016

      Freelin W. Wright appeals from the order of the Court of Common

Pleas of Crawford County dismissing as untimely his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§9541-9546. After

careful review, we affirm.

      On June 18, 2000, at a residence on Walnut Street in Meadville,

Pennsylvania, Wright shot the victim, Bernard Custard, in the neck with a

.380 caliber firearm.

      On November 14, 2000, a jury convicted Wright of several offenses

arising out of the shooting.        On March 1, 2001, the court imposed an

aggregate sentence of 7 to 15 years’ incarceration, which included a

sentence of 5 to 11 years’ incarceration for aggravated assault.   Wright’s
J-S37040-16



conviction for aggravated assault carried a five-year mandatory minimum

sentence pursuant to 42 Pa.C.S. § 9712.1

       Wright filed a pro se PCRA petition on May 18, 2015, arguing that his

sentence for aggravated assault should be vacated based on Alleyne v.

United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). The court appointed

PCRA counsel, who subsequently filed an amended PCRA petition. By order

dated November 18, 2015, the PCRA court dismissed the petition.           This

appeal followed, in which Wright raises the following issues for our review:

       [1.] Whether the PCRA court erred in concluding that [Wright’s]
       pro se PCRA motion was untimely filed.

       [2.] Whether the PCRA court erred in concluding that [Wright]
       was not entitled to PCRA relief in the form of having his
       mandatory minimum incarceration term of five years for his
       conviction of aggravated assault vacated due to the United
       States Supreme Court’s decision in Alleyne v. United States,
       133 S.Ct. 2151 (2013).

Brief of Appellant, at 7.

       Our standard and scope of review for the denial of a PCRA petition is

well settled.     We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.     Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to
____________________________________________


1
  Section 9712, which was held unconstitutional in Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014), provides that a person who,
while committing a crime of violence, visibly possesses a firearm that places
the victim in reasonable fear of death or serious bodily injury, shall be
sentenced to a minimum of five years’ total confinement.



                                           -2-
J-S37040-16



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. Id.

      All petitions under the PCRA, including subsequent petitions, must be

filed within one year of the date the judgment becomes final, unless the

petitioner alleges, and the petitioner proves, an exception to the one-year

time period.    Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa.

2008). The exceptions apply where the petitioner successfully alleges and

proves one or more of the following:

      (i) the failure to raise this claim previously was the result of
      interference by government officials with 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)(i)-(iii).

      A petition invoking one of these exceptions must be filed within 60

days of the date the claim could first have been presented.          42 Pa.C.S. §

9545(b)(2).    The petitioner must plead and prove specific facts that

demonstrate    his   claim   was    raised   within   the   60-day   time   frame.

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (Pa. 2013).




                                       -3-
J-S37040-16



       Wright’s judgment of sentence became final on March 31, 2001, when

the 30-day period in which to file a direct appeal expired.    See Pa.R.A.P.

903(a). Accordingly, he had one year from that date in which to file a timely

PCRA petition, unless he could allege and prove one of the exceptions to the

time bar. See Pa.C.S. § 9545(b)(1).

       In the instant petition, filed on May 18, 2015, Wright invokes Alleyne,

which the United States Supreme Court decided on June 17, 2013. This is

beyond the 60-day time frame set forth in section 9545(b)(2). Therefore,

Wright’s claim is time-barred.2 See Commonwealth v. Ruiz, 131 A.3d 54

(Pa. Super. 2015) (holding that Alleyne does not invalidate mandatory

minimum sentence when claim was presented in an untimely PCRA petition).

       Order affirmed.




____________________________________________


2
  However, even if Wright presented his claim in a timely manner, it is still
without merit. See Commonwealth v. Miller, 102 A.3d 988 (Pa. Super.
2014) (holding that even if Alleyne announced a new constitutional right,
neither our Supreme Court nor the United States Supreme Court has held
that Alleyne applies retroactively). Miller is fatal to Wright’s attempt to
satisfy the “new constitutional right” exception to the timeliness
requirements of the PCRA.



                                           -4-
J-S37040-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2016




                          -5-
