J-S13038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 AUSTIN O. CARTNEY,                       :
                                          :
                    Appellant             :        No. 1415 WDA 2017

              Appeal from the PCRA Order September 19, 2017
             in the Court of Common Pleas of Crawford County,
            Criminal Division at No(s): CP-20-CR-0001196-2014

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

MEMORANDUM BY MUSMANNO, J.:                              FILED MAY 9, 2018

      Austin O. Cartney (“Cartney”) appeals from the Order dismissing his first

Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      On April 27, 2015, Cartney entered a guilty plea to aggravated indecent

assault. On July 21, 2015, the trial court sentenced Cartney to a prison term

of two to four years. Cartney did not file a direct appeal.

      On February 15, 2017, Cartney, pro se, filed the instant PCRA Petition.

The PCRA court appointed Cartney counsel, who filed an Amended Petition.

After providing Pa.R.Crim.P. 907 Notice of Intent to Dismiss, the PCRA court

dismissed Cartney’s Petition, without a hearing, as untimely filed. Cartney

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of Matters Complained of on Appeal.
J-S13038-18



      On appeal, Cartney raises the following question for our review:

“Whether the PCRA court erred in concluding that [Cartney’s] PCRA [Petition]

was untimely filed?” Brief for Appellant at 7 (capitalization added).

               We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of the record. We will not disturb a PCRA court’s ruling
      if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Under the PCRA, any PCRA petition “shall be filed within one year of the

date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment

of sentence 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.”    Id. § 9545(b)(3).      The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

      Here, Cartney’s Petition is facially untimely under the PCRA. See 42

Pa.C.S.A. § 9545(b). However, Pennsylvania courts may consider an untimely

petition if the petitioner can explicitly plead and prove one of three exceptions

set forth at 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Any PCRA Petition invoking




                                      -2-
J-S13038-18


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

have been presented.” Id. § 9545(b)(2).

       Cartney invokes the “newly-discovered facts” exception at 42 Pa.C.S.A.

§ 9545(b)(1)(ii), alleging that his sentence is illegal based upon the United

States Supreme Court decision in Alleyne v. United States, 570 U.S. 99

(2013).1 See Brief for Appellant at 15. Initially, based upon our review of

the written Sentencing Order and sentencing hearing transcript, the trial court

did not impose a mandatory minimum sentence.

       However, even if the trial court had imposed a mandatory minimum

sentence, judicial decisions are not “facts” that would invoke 42 Pa.C.S.A.

§ 9545(b)(1)(ii).     See Commonwealth v. Watts, 23 A.3d 980, 986 (Pa.

2011). Thus, the “newly-discovered facts” exception does not apply.2




____________________________________________


1  In Alleyne, the United States Supreme Court held that any fact that
increases the sentence for a given crime must be submitted to the jury and
found beyond a reasonable doubt. Id. at 103.
2 In his PCRA Petition, Cartney invokes the “newly-recognized constitutional

right” exception, 42 Pa.C.S.A. § 9545(b)(1)(iii), based upon Alleyne.
However, Cartney’s February 15, 2017 PCRA Petition was filed well over 60
days after June 17, 2013, the date that Alleyne was decided.               See
Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2017) (stating that
“[w]ith regard to an after-recognized constitutional right, this Court has held
that the sixty-day period begins to run upon the date of the underlying judicial
decision.”).   Further, the rule established in Alleyne does not apply
retroactively where, as here, the judgment of sentence is final.           See
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding
that “Alleyne does not apply retroactively to cases pending on collateral
review.”).


                                           -3-
J-S13038-18


     Therefore, lacking an exception to the timeliness requirements of the

PCRA, the PCRA court properly dismissed Cartney’s first PCRA Petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2018




                                    -4-
