J-S25006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LADAWN BURT,

                            Appellant                 No. 664 WDA 2014


                  Appeal from the PCRA Order March 28, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014603-2005


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 02, 2015

        Appellant, Ladawn Burt, appeals pro se from the March 28, 2014 order

denying, as untimely, his second petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We need not reproduce a detailed factual or procedural history of

Appellant’s case for purposes of this appeal. Instead, we only note that he

was convicted in 2010 of two counts of receiving stolen property, two counts

of possession with intent to deliver a controlled substance, two counts of

possession of a controlled substance, and one count of persons not to

possess a firearm. Appellant was ultimately sentenced to an aggregate term

of 17 to 34 years’ incarceration for these offenses. He filed a timely direct
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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appeal, and after this Court affirmed his judgment of sentence on September

30, 2011, our Supreme Court denied his subsequent petition for allowance of

appeal on February 8, 2012. Commonwealth v. Burt, 34 A.3d 215 (Pa.

Super. 2011) (unpublished memorandum), appeal denied, 37 A.2d 1193

(Pa. 2012).   Therefore, Appellant’s judgment of sentence became final on

May 8, 2012, when the ninety-day period for filing a petition for writ of

certiorari with the United States Supreme Court expired. See 42 Pa.C.S. §

9545(b)(3) (stating “a judgment 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”).

      Thereafter, Appellant filed a pro se PCRA petition and counsel was

appointed. Counsel filed an amended petition on Appellant’s behalf, but on

September 10, 2012, the court issued an order dismissing Appellant’s

petition. Appellant filed a timely notice of appeal with this Court. After we

affirmed the order denying his PCRA petition, our Supreme Court denied his

petition for allowance of appeal. Commonwealth v. Burt, 82 A.3d 466 (Pa.

Super. 2013) (unpublished memorandum), appeal denied, 79 A.3d 1096

(Pa. 2013).

      On February 24, 2014, Appellant filed a second pro se PCRA petition,

which underlies the instant appeal. On February 28, 2014, the PCRA court

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss that petition.


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Appellant did not file a response, and on March 26, 2014, the court issued

an order dismissing his petition as untimely. Appellant filed a timely pro se

notice of appeal, and complied with the PCRA court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. On October

27, 2014, the PCRA court issued a Rule 1925(a) opinion, explaining that

Appellant’s petition was untimely and that none of the issues he raised

satisfied an exception to the PCRA’s one-year time-bar.

      Now, on appeal, we initially note that Appellant’s pro se brief is

extremely confusing, as he intermingles arguments on various issues, and

goes back and forth between claims with no separation.         However, from

what we can ascertain, he is raising eight general assertions, which we

summarize as follows:

   (1)   Appellant’s counsel in the disposition of his first PCRA petition was
         ineffective for not presenting issues that Appellant sought to raise;

   (2)   Trial counsel was ineffective for failing to file a motion to compel
         the disclosure of the confidential informant’s identity and for not
         seeking to suppress Appellant’s confession;

   (3)   The trial court abused its discretion in sentencing Appellant;

   (4)   Appellant’s confession was improperly admitted at trial;

   (5)   The trial court improperly instructed the jury;

   (6)   The prosecutor committed misconduct during closing arguments;

   (7)   A search warrant issued for a home in which Appellant was a guest
         was not supported by probable cause;

   (8)   Appellant’s mandatory minimum sentence is illegal under Alleyne
         v. United States, 133 S.Ct. 2151 (2013).

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   Because the PCRA time limitations implicate our jurisdiction and may not

be altered or disregarded in order to address the merits of a petition, we

must      start    by   examining     the    timeliness     of     Appellant's    petition.

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1267 (2007)

(stating PCRA time limitations implicate our jurisdiction and may not be

altered     or     disregarded   to   address     the     merits     of   the    petition);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding the Superior Court lacks jurisdiction to reach the merits of an

appeal from an untimely PCRA petition). Under the PCRA, any petition for

post-conviction relief, including a second or subsequent one, must be filed

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

one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)

applies:

       (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;

                 (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


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            (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). Any petition attempting to invoke one of

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

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, because Appellant’s judgment of sentence became final on May

8, 2012, he had until May 8, 2013, to file a timely PCRA petition. Therefore,

Appellant’s February 24, 2014 petition is patently untimely, and he must

plead and prove the applicability of one of the above-stated exceptions for

this Court to have jurisdiction over his appeal. For the following reasons, he

has failed to do so.

      First, Appellant’s ineffective assistance of counsel claims, numbered

(1) and (2) above, do not satisfy any of the exceptions set forth in section

9545(b)(1)(i)-(iii). See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999) (reiterating “that a claim of ineffective assistance of counsel does not

save an otherwise untimely petition for review on the merits”). Additionally,

Appellant’s claims numbered (3) through (7) involve assertions of trial error

that not only fail to meet any exception set forth in section 9545(b), but are

also waived, as they could have been raised on direct appeal.         See 42

Pa.C.S. § 9543(a)(3) (stating that to be eligible for PCRA relief, the

petitioner must prove that the claim “has not been previously litigated or


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waived”); 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state post[-]conviction proceeding.”).

      In regard to Appellant’s eighth claim that his sentence is illegal under

Alleyne, this Court has recently held that reliance on Alleyne cannot satisfy

the new constitutional right exception of section 9545(b)(1)(iii), as “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 [has] become final.”       Commonwealth v. Miller, 102 A.3d 988,

995 (Pa. Super. 2014). Accordingly, Appellant’s sentencing challenge under

Alleyne also does not meet a timeliness exception.

      In sum, none of the claims set forth by Appellant satisfy an exception

to the PCRA’s one-year time-bar. Accordingly, the PCRA court did not err in

dismissing his untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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