J-S78021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHAWN MICHAEL SIMMS

                            Appellant                  No. 189 WDA 2016


             Appeal from the PCRA Order January 5, 2016
        In the Court of Common Pleas of Westmoreland County
          Criminal Division at No(s): CP-65-CR-0002610-2009
                        CP-65-CR-0002611-2009
*************************************************************

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHAWN MICHAEL SIMMS

                            Appellant                  No. 190 WDA 2016


                  Appeal from the PCRA Order January 5, 2016
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0002610-2009
                             CP-65-CR-0002611-2009


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                           FILED NOVEMBER 10, 2016




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S78021-16



       Shawn Michael Simms appeals pro se from the orders entered January

5, 2016, in the Court of Common Pleas of Westmoreland County, dismissing

his Post Conviction Relief Act (PCRA) petition as untimely. 1             Simms

challenges the legality of his mandatory minimum sentences, contending the

PCRA court erred in dismissing his petition when (1) the new rule of law

announced by the United States Supreme Court in Alleyne v. United

States, 133 S. Ct. 2151 (2013), is a “substantive rule” that applies

retroactively in this case,2 (2) the petition was filed within 60 days of when

Simms     learned     of   the    Pennsylvania   Supreme   Court’s   decision   in

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015),3 and (3) the PCRA
____________________________________________


1
  Simms filed the present PCRA petition at Docket Nos. 2610-2009 and
2611-2009. Following the denial of relief, Simms filed separate appeals,
which this Court consolidated sua sponte. See Order, 3/14/2016.

      The underlying petition is Simms’ first PCRA petition at Docket No.
2610-2009. It is Simms’ second petition at Docket No. 2611-2009. Simms’
previously filed a timely PCRA petition at Docket No. 2611-2009. See
Commonwealth v. Simms, 68 A.3d 355 [1092 WDA 2012] (Pa. Super.
2013) (unpublished memorandum) (affirming PCRA court’s denial of relief),
appeal denied, 78 A.3d 1091 (Pa. 2013).
2
  Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proved beyond a reasonable doubt. Id. at
2160-61.
3
 In Hopkins, the Pennsylvania Supreme Court held that 18 Pa.C.S. § 6317,
which imposed a mandatory minimum sentence for delivery or possession
with intent to deliver a controlled substance within 1,000 feet of a school
was unconstitutional in its entirety, as certain provisions of the statute do
not adhere to Alleyne's rule and are not severable from the remaining
portions of the statute. Hopkins, 117 A.3d at 262.



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court, through the court’s inherent power, always retains jurisdiction to

correct a patently unconstitutional, and therefore illegal sentence. See

Simms’ Brief at 4; see also Simms’ Pa.R.A.P. 1925(b) Statement,

3/21/2016. Based upon the following, we affirm.

       We adopt the facts and procedural history set forth in the PCRA court’s

opinion.      See    PCRA     Court    Order   of   Court,   1/5/2016.   See   also

Commonwealth v. Simms, 68 A.3d 355 [1092 WDA 2012] (Pa. Super.

2013) (unpublished memorandum) (affirming denial of relief on Simms’ first

PCRA petition at Docket No. 2611-2009), appeal denied, 78 A.3d 1091 (Pa.

2013). We simply note that, on September 29, 2010, Simms pleaded guilty

at Docket Nos. 2610-2009 and 2611-2009, and was sentenced at both

dockets on April 25, 2011.4         Simms filed the present PCRA petition at the

afore-mentioned dockets on August 7, 2015.              Counsel was appointed and

filed a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
____________________________________________


4
      At Docket No. 2610-2009, Simms pleaded guilty to failure to comply
with registration of sexual offender requirements, and failure to provide
accurate information when registering as a sexual offender. See 18 Pa.C.S.
§§ 4915(a)(1), (a)(3), respectively.

      At Docket No. 2611-2009, Simms pleaded guilty to various sexual
offenses and related offenses, including three counts of involuntary deviate
sexual intercourse with a person less than 16 years of age. See 18 Pa.C.S.
§ 3123(a)(7).

      The trial court imposed a total aggregate sentence of 20 to 40 years’
incarceration.



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1988). On November 20, 2015, the PCRA court issued notice of intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. No

response to the Rule 907 notice was filed by Simms, and the PCRA court, on

January 5, 2016, dismissed the petition and granted counsel’s petition to

withdraw.   Simms filed appeals at both dockets, and the appeal was

consolidated by this Court.

      The court did not order Simms to file a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. The PCRA court filed an opinion pursuant to

Rule 1925(a) on February 26, 2016, incorporating its opinion of January 5,

2016, the Rule 907 notice. Subsequently, on March 21, 2016, Simms on his

own initiative filed a Rule 1925(b) statement. On March 24, 2015, the PRCA

court entered an order, stating the court had not requested a Rule 1925(b)

statement because Simms had not responded to the Rule 907 notice when

he had that opportunity, and, since the court had not requested Simms to

file a concise statement and had already filed an opinion and order pursuant

to Rule 1925(a), Simms’ concise statement was untimely. See PCRA Order

of Court, 3/24/2016.

      Our standard of review is well established:

      “In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination ‘is supported by the record and free
      of legal error.’” Commonwealth v. Taylor, 620 Pa. 429, 67
      A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
      Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).

Commonwealth v. Mitchell, 141 A.3d 1277, 1283-84 (Pa. 2016).



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      “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A

PCRA petition must be filed within one year of the date the judgment of

sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “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.” 42 Pa.C.S. § 9545(b)(3). There are three statutory exceptions to

the PCRA’s timeliness provisions that allow for limited circumstances under

which an otherwise untimely PCRA petition may be reviewed. To invoke an

exception, a petition must allege and the petitioner must prove:


      (i) the failure to raise a claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or the law of this
      Commonwealth or the Constitution or law 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).      Furthermore, a petitioner invoking a

timeliness exception must file a petition within 60 days of the date the claim

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


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       Here, Simms’ judgment of sentence became final on June 27, 2011,

upon the discontinuance of his direct appeals, which he had filed at Docket

Nos. 2610-2009 and 2611-2009. See 42 Pa.C.S. § 9545(b)(3). See also

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)

(judgment of sentence final for PCRA purposes when appellant discontinues

direct appeal). Simms filed the underlying PCRA petition on August 7, 2015.

Therefore, Simms’ petition is patently untimely.         See 42 Pa.C.S. §

9545(b)(1). See also Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super.

2013) (“[A]lthough illegal sentencing issues cannot be waived, they still

must be presented in a timely PCRA petition.”).      Accordingly, there is no

jurisdiction to review the petition unless a timeliness exception applies. See

42 Pa.C.S. 9545(b)(1)(i)-(iii).

       In his PCRA petition, Simms raised the claim that his mandatory

minimum sentences were illegal pursuant to Alleyne.5         The PCRA court

considered whether Simms had pleaded and proved that the PCRA’s

____________________________________________


5
  The PCRA court notes that “[t]he charges of Involuntary Deviate Sexual
Intercourse with a Person Less than 16 years of Age in violation of 18
Pa.C.S.A. § 3123(a)(7) included a mandatory minimum sentence of ten (10)
years’ incarceration.” PCRA Order of Court, 1/6/2016, at 2. The PCRA court
further states: “In his PCRA petition, Simms alleges that he is eligible for
relief under the Post Conviction Relief Act because the mandatory sentence
imposed pursuant to 42 Pa.C.S.A. § 9718(a)(1) as applied to 18 Pa.C.S.A. §
3123(a)(7) violates the prohibition against the judicial enhancement of
mandatory minimum sentences as set forth in Alleyne[.]” Id. at 4.




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exception set forth at Section 9545(b)(1)(iii) applied to his claim, and

concluded:

      Upon a review of the relevant case law, this court finds that
      Alleyne is not applicable to the present case. Alleyne was
      decided by the Pennsylvania Supreme Court on June 17, 2013
      and does not apply retroactively to cases on collateral review,
      such as [Simms’]. At the time Alleyne was decided, Simms’
      direct appeal had already been dismissed for nearly [two] years.

PCRA Court Order of Court, 1/5/2016, at 5.      We find that the PCRA court

properly rejected this claim.

      Simms failed to file his present petition within 60 days of Alleyne,

which was decided on June 17, 2013. See 42 Pa.C.S § 9545(b)(2). In

addition, the Pennsylvania Supreme Court has definitively held that Alleyne

does not apply retroactively to cases on collateral review where the

petitioner’s judgment of sentence has become final. See Commonwealth

v. Washington, 142 A.3d 810 (Pa. 2016). Furthermore, there is no United

States Supreme Court decision holding that Alleyne applies retroactively to

untimely PCRA petitions. Therefore, Simms cannot rely upon Alleyne to

satisfy the “retroactive constitutional right” exception, 42 Pa.C.S. §

9545(b)(1)(iii).

      Lastly, even if we consider the claims raised by Simms in his untimely

concise statement and presented in this appeal, no relief is due.       Simms

contends that in Alleyne, the United States Supreme Court created a “new

rule” of “substantive law” that must apply retroactively to cases on collateral

review.   Moreover, Simms claims Hopkins provides “implied retroactivity.”


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See Simms’ Brief at 8, 26. In making these arguments, Simms invokes the

PCRA’s “newly discovered facts” exception, 42 Pa.C.S. § 9545(b)(1)(ii),

asserting that his sentence became illegal when the Pennsylvania Supreme

Court decided Hopkins, supra.       He further claims that the PCRA court,

through the court’s inherent power, retains jurisdiction to correct an illegal

sentence. These very same arguments, however, were recently rejected by

this Court in Commonwealth v. Whitehawk, ___ A.3d ___, [2016 PA

Super 185] 2016 WL 4473779 (Pa. Super. August 24, 2016).

      In sum, because Simms’ PCRA petition is untimely and Simms has

failed to satisfy any statutory exception to the PCRA time bar that would

excuse the late filing of this petition, we affirm the PCRA court’s orders of

dismissal.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2016




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