J-S28042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   Appellee              :
                                         :
                   v.                    :
                                         :
DIQUAN EARL WARREN,                      :
                                         :
                    Appellant            :    No. 1903 WDA 2016

              Appeal from the PCRA Order December 7, 2016,
             in the Court of Common Pleas of Crawford County
            Criminal Division at No(s): CP-20-CR-0000687-2012

BEFORE: OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 12, 2017

     Diquan Earl Warren (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

     On February 25, 2013, Appellant pled guilty to one count of corruption

of minors and one count of involuntary deviate sexual intercourse (IDSI).

On June 21, 2013, Appellant was sentenced to an aggregate term of 132 to

312 months of imprisonment, which included a mandatory minimum

sentence for the IDSI count pursuant to 42 Pa.C.S. § 9718. Appellant did

not file a direct appeal, and his judgment of sentence became final on July

22, 2013.




* Retired Senior Judge assigned to the Superior Court.
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        Appellant filed pro se the instant PCRA petition, his first, on July 29,

2016.     Counsel was appointed, and on October 10, 2016, an amended

petition was filed.    Therein, Appellant alleged that his sentence is illegal

pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013)1 and his plea

counsel2 was ineffective for failing to notify Appellant about Alleyne within

an appropriate timeframe to file timely a post-sentence motion, direct

appeal, or PCRA petition. Amended PCRA Petition, 10/10/2016, at 7-8.

        On November 16, 2016, the PCRA court issued notice of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907 on the

basis that the petition was filed untimely and the court lacked jurisdiction to

consider it. Appellant did not file a response, and on December 7, 2016, the

PCRA court dismissed the petition. This appeal followed.3

        Before we can examine Appellant’s substantive claims, we must

determine whether the filing of his PCRA petition was timely.            “[O]ur


1
  In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155.
Applying this mandate, our Supreme Court held that 42 Pa.C.S. § 9718, the
statute that required a mandatory minimum sentence for IDSI, was
unconstitutional pursuant to Alleyne. See Commonwealth v. Wolfe, 140
A.3d 651, 653 (Pa. 2016).
2
 The amended petition refers to “trial counsel,” but as noted, Appellant pled
guilty and did not have a trial.
3
  Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. The
PCRA court adopted its November 16, 2016 memorandum in support of its
notice to dismiss Appellant’s amended PCRA petition as its Rule 1925(a)
opinion.
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Supreme Court has stressed that ‘[t]he PCRA's timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not

address the merits of the issues raised in a petition if it is not timely filed.’”

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011)

(quoting Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1267–68 (Pa.

2008)).

        Generally, a petition for relief under the PCRA must be filed within one

year of the date the judgment of sentence is final unless the petition alleges,

and the petitioner proves, that a timeliness exception is met, and raises that

claim within 60 days of the date on which it became available. 42 Pa.C.S.

§ 9545(b)(1) and (2).

        Appellant filed his petition three years after his judgment of sentence

became final. Thus, his petition is facially untimely, and the PCRA court had

no jurisdiction to entertain it unless he pled and offered proof of one or more

of the three statutory exceptions to the time-bar. 42 Pa.C.S. § 9545(b)(1).

        Appellant alleged the filing of his petition was timely, based on the

newly-discovered-fact and new-constitutional-right exceptions to the PCRA

time-bar, 42 Pa.C.S. § 9545(b)(1)(ii) and (iii). 4     Amended PCRA Petition,



4
    These exceptions to the time bar are as follows:

        (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
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10/10/2016, at 5.     Specifically, with respect to subsection (b)(1)(ii), he

avers that his discovery of Alleyne is a newly-discovered fact, and he filed

his petition within 60 days of discovering that fact. Id. at 10. With respect

to subsection (b)(1)(iii), he asserts that Alleyne is a constitutional right

applicable to him because he was sentenced four days after the United

States Supreme Court decided Alleyne.          Id. at 5.    He echoes these

arguments in his brief, contending either exception should apply due to his

ignorance of Alleyne as a result of his incarceration. Appellant’s Brief at 17.

      Appellant’s petition does not satisfy the PCRA exception for newly-

discovered facts.    “Our Courts have expressly rejected the notion that

judicial decisions can be considered newly-discovered facts which would

invoke the protections afforded by section 9545(b)(1)(ii).” Commonwealth



         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

                                      ***
            (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.

         (2) Any petition invoking an exception provided in
         paragraph (1) shall be filed within 60 days of the date the
         claim could have been presented.

42 Pa.C.S. § 9545(b)(1)(ii)-(iii), (b)(2).
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v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013). Therefore, Alleyne, a

judicial decision, is not a “fact” that satisfies section 9545(b)(1)(ii).

      Nor    does   his    petition   satisfy   the   PCRA   exception   for   a   new

constitutional right.     As the PCRA court noted, the United States Supreme

Court recognized the constitutional right at issue prior to Appellant’s

sentencing, not “‘after the time period provided in this section,’ i.e. after his

one-year window for filing a petition closed on July 22, 2014.” Trial Court

Opinion, 11/16/2016, at 3 (citing 42 Pa.C.S. § 9545(b)(1)(iii)) (emphasis

added).     Thus, by virtue of the plain language of the statute, the after-

recognized-constitutional-right exception does not apply to Appellant.

      Furthermore, even assuming arguendo that the after-recognized-

constitutional-right exception did apply, Appellant did not file his claim within

sixty days of Alleyne’s publication date as required by section 9545(b)(2).

Appellant misconstrues the sixty-day period; the applicable “period begins to

run upon the date of the underlying judicial decision,” not Appellant’s

discovery of the decision.      Commonwealth v. Boyd, 923 A.2d 513, 517

(Pa. Super. 2007). Appellant’s incarceration or general ignorance of the law

does not excuse the sixty-day requirement required to prove the after-

recognized-constitutional-right       exception.       See    Commonwealth          v.

Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (quoting Commonwealth v.

Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001)) (“Neither the court system




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nor the correctional system is obliged to educate or update prisoners

concerning changes in case law.”); Leggett, 16 A.3d at 1145 (same).5

      Notwithstanding the unconstitutionality of 42 Pa.C.S. § 9718, the

statute pursuant to which Appellant received a mandatory minimum

sentence, “a legality [of sentence] claim [derived from Alleyne] may

nevertheless be lost should it be raised ... in an untimely[-filed] PCRA

petition for which no time-bar exception applies, thus depriving the court of

jurisdiction over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014) (quoting Commonwealth v. Seskey, 86 A.3d 237, 241

5
  In Baldwin, Leggett, and Brandon, this Court held that the after-
recognized-constitutional-right exception set forth in subsection (b)(1)(iii)
does not apply to petitions filed more than 60 days after the issuance of a
decision recognizing a new constitutional right, even if the petitioner filed the
petition within 60 days of his learning about the decision through a prison-
sponsored seminar or newly-available resource in the prison law library.

  We note that our Supreme Court recently recognized that pro se
incarcerated petitioners have limited access to information of public record
while in prison and permitted a pro se incarcerated petitioner to avail himself
of the newly-discovered-facts exception at subsection (b)(1)(ii), even though
the newly-discovered fact was part of the public domain for more than sixty
days prior to the filing of the petition. Commonwealth v. Burton, 158
A.3d 618 (Pa. 2017). However, in so holding, the Court acknowledged that
courts have denied relief to pro se incarcerated petitioners under subsection
(b)(1)(iii) if they did not file their petitions within 60 days of a decision
creating a newly-recognized constitutional right. Id. at 636. The Court
distinguished the requirements of subsection (b)(1)(ii) from the
requirements of subsection (b)(1)(iii), noting that subsection (b)(1)(ii)
requires a determination of whether the fact was unknown to the petitioner
and whether the petitioner could have ascertained the fact by due diligence,
but “subsection (b)(1)(iii) precludes consideration of the petitioner’s
knowledge [of a judicial decision] and an assessment of due diligence.” Id.
(emphasis in original). Therefore, Burton has not disturbed the holdings of
Baldwin, Leggett, and Brandon to the extent that they rely upon the
after-recognized-constitutional-right exception to deny relief.
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(Pa. Super. 2014)). Appellant failed to raise his claims regarding illegality of

his sentence and ineffective assistance of his counsel in a timely-filed PCRA

petition.   Thus, under the present state of the law, we are constrained to

conclude that we have no jurisdiction to consider the substance of his

claims.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/12/2017




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