J-S35024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 EDMUND A. SMITH, JR.                       :
                                            :
                     Appellant              :   No. 1165 MDA 2017

                 Appeal from the PCRA Order June 27, 2017
              In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0001956-2011


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

JUDGMENT ORDER BY PANELLA, J.                       FILED OCTOBER 22, 2018

      Edmund A. Smith, Jr., appeals, pro se, from the order dismissing his

second petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      In 2012, Smith entered a nolo contendere plea to one count of

involuntary deviate sexual intercourse with a minor, thirteen years of age at

the time of the crime. The trial court sentenced Smith to ten to twenty years’

incarceration. Smith did not file a direct appeal following the denial of his post-

sentence motion on November 30, 2012.

      Thereafter, Smith filed a timely PCRA petition. In that petition, Smith

alleged that his plea was unlawfully induced and that his sentence was illegal

based upon the holding in Alleyne v. United States, 570 U.S. 99 (2013).

Following a hearing, the PCRA court determined that Smith failed to prove

coercion or the application of Alleyne and denied Smith’s petition. We later
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affirmed the PCRA court. See Commonwealth v. Smith, No. 1864 MDA 2014

(Pa. Super. filed Jan. 6, 2016) (unpublished memorandum).

      On August 8, 2016, Smith filed a second PCRA petition, again alleging

the illegality of his sentence pursuant to Alleyne, as well as ineffectiveness

of plea counsel for failing to file a direct appeal. The PCRA court issued notice

of its intention to summarily dismiss the petition and subsequently did so. This

timely appeal follows.

      Prior to reaching the merits of Smith’s claims on appeal, we must first

consider the timeliness of his PCRA petition. See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply to
      all PCRA petitions, regardless of the nature of the individual claims
      raised therein. The PCRA squarely places upon the petitioner the
      burden of proving an untimely petition fits within one of the three
      exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

      Smith’s judgment of sentence became final on December 30, 2012,

when his 30-day window for filing a notice of appeal with this Court expired.

See Pa.R.Crim.P. 720(A)(2)(a); 42 Pa.C.S.A. § 9545(b)(3). Smith’s petition—


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filed almost four years later—is untimely. Thus, the PCRA court lacked

jurisdiction to review Smith’s petition unless he was able to successfully plead

and prove one of the statutory exceptions to the PCRA’s time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions

must file a petition within 60 days of the date the claim could have first been

presented. See 42 Pa.C.S.A. § 9545(b)(2).

      In his PCRA petition, Smith attempts to plead an exception to the PCRA

time bar under 42 Pa.C.S.A. § 9545(b)(1)(ii); i.e., newly discovered facts.

This exception relies on a showing that “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[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).

Smith contends he discovered his sentence violated the dictates of Alleyne

through the holding of the recent Pennsylvania Supreme Court case of

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).

      There are at least four major problems with this assertion. First, Smith

cannot rationally claim that the holding of Alleyne was unknown to him prior

to the disposition of Wolfe—he raised an Alleyne claim in his first,

unsuccessful, PCRA petition. See Smith, No. 1864 MDA 2014 at 10-11. This

leads to the second major problem with Smith’s claim—he already

unsuccessfully litigated this exact claim in his first PCRA petition. See id.

Therefore, he is precluded from obtaining relief on this issue. See 42 Pa.C.S.A.

§ 9543(a)(3) (providing petitioner not eligible for relief if the allegation of


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error was previously litigated). Thirdly, even if Smith had not previously raised

an Alleyne claim, “Alleyne does not apply retroactively to cases pending on

collateral review….” Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016). And fourthly, judicial decisions are not newly-discovered facts

triggering the timeliness exception of § 9545(b)(1)(ii). See Commonwealth

v. Watts, 23 A.3d 980, 986 (Pa. 2011).

      As Smith does not plead a valid exception to the PCRA’s time-bar, we

are without jurisdiction to hear his claims. So, we affirm the PCRA court’s

order denying relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2018




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