J-S23006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DESEAN PROSSER,

                            Appellant                 No. 3102 EDA 2015


                  Appeal from the PCRA Order October 1, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division, at No(s): CP-51-CR-1016621-1993
                                           CP-51-CR-1016721-1993
                                           CP-51-CR-1016811-1993
                                           CP-51-CR-1016921-1993


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                                FILED MAY 03, 2016

        Desean Prosser (“Appellant”) appeals pro se from the order dismissing

as untimely his second petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court summarized the pertinent facts and procedural history

as follows.

        In November 1993, [Appellant] pled guilty to four counts of
        robbery, one count of carjacking, two counts of aggravated
        assault, two counts [of] simple assault, eight counts of
        possession of instruments of crime, twelve violations of the
        Uniform Firearms Act, and four counts of criminal conspiracy
        arising out of a one-week crime spree involving four separate
        gunpoint robberies. On February 7, 1994, this Court sentenced
____________________________________________



    Former Justice specially assigned to the Superior Court.
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       [Appellant] to an aggregate sentence of twenty-five to eighty
       years of incarceration. [Appellant] filed an appeal, and on March
       6, 1995, the Superior Court affirmed [Appellant’s] judgment of
       sentence. See [Commonwealth v. Prosser, 660 A.2d 656 (Pa.
       Super. 1995) (Table)]. On February 2, 1996, the Pennsylvania
       Supreme Court denied [Appellant’s] Petition for Allowance of
       Appeal. See [Commonwealth v. Prosser, 672 A.2d 306 (Pa.
       1996) (Table)]. [Appellant] then filed a timely PCRA petition,
       which was denied on December 28, 1999[.] The Superior Court
       affirmed [the PCRA court’s] denial of [Appellant’s] PCRA Petition
       on August 22, 2000, see [Commonwealth v. Prosser, 764
       A.2d 1127 (Pa. Super. 2000) (Table)], and [our] Supreme Court
       denied allocatur on March 6, 2001. See [Commonwealth v.
       Prosser, 771 A.2d 1282 (Pa. 2001 (Table))].

       On February 18, 2015, [Appellant] filed a second [PCRA petition]
       in which he argued that he is serving an illegal sentence under
       Alleyne v. United States, 133 S.Ct. 2151 (2013) because the
       trial court determined the deadly weapon enhancement applied,
       as opposed to the jury finding facts beyond a reasonable doubt
       which triggered the deadly weapon enhancement. After
       reviewing the Petition and the relevant precedent, this Court
       issued a notice of intent to dismiss the Petition pursuant to
       Pa.R.Crim.P. 907. [Appellant filed objections to the Rule 907
       notice on August 19, 2015.] By Order dated October 1, 2015,
       this Court dismissed the Petition as untimely.

PCRA Court Opinion, 10/21/15, at 1-2.1 This timely pro se appeal follows.

       Appellant raises the following issue.

          AS THE PENNSYLVANIA SUPERIOR COURT AND SUPREME
          COURTS HAVE FOUND SECTION 9712 TO BE FACIALLY
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1
  Alleyne is inapplicable to the use of the deadly weapon enhancement
when determining a defendant’s sentencing guidelines. See generally,
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266-1271 (Pa. Super.
2014) (en banc). Although the PCRA court uses this phrase to describe
Appellant’s claim, it is clear from a review of the record that Appellant’s
aggregate sentence included several mandatory minimums under 42
Pa.C.S.A. § 9712. See N.T., 2/7/94, at 8-12.




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         UNCONSTITUTIONAL IN ITS ENTIRETY, IS [] APPELLANT
         ENTITLED TO RELIEF FROM HIS ILLEGAL SENTENCE AS
         THE STATUTE HAS BEEN UNCONSTITUTIONAL FROM THE
         DATE OF ITS PASSAGE AND INEFFECTIVE FOR ANY
         PURPOSE?

Appellant’s Brief at 7.

      We must first determine whether the PCRA court correctly determined

that Appellant’s second PCRA petition was untimely filed. This Court’s

standard of review regarding an order dismissing a petition under the PCRA

is whether the determination of the PCRA court is supported by the evidence

of record and is free of legal error. See Commonwealth v. Halley, 870

A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      The   timeliness    of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Generally, a

petition for relief under the PCRA, including a second or subsequent petition,

must be filed within one year of the date the judgment is final unless the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is

met. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

2000). A PCRA petition invoking one of these statutory exceptions “shall be

filed within 60 days of the date the claim could have been presented.” See

42 Pa.C.S.A. § 9545(b)(2).


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      Appellant’s judgment of sentence became final on May 2, 1996, when

the ninety-day time period for filing a writ of certiorari with the United States

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.

Therefore, Appellant needed to file the PCRA petition at issue by May 2,

1997, in order for it to be timely. Appellant filed the instant petition on

February 18, 2015; it is untimely unless he has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies. See

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

      Although Appellant challenges the legality of his sentence, this claim

still must be presented in a timely PCRA petition. See Commonwealth v.

Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (emphasis added). Appellant

has failed to prove any exception to the PCRA’s time bar.

      As explained by the PCRA court:

      [Appellant’s] argument fails for two separate, but equally
      important, reasons. First, § 9545(b)(1)(iii) requires that the
      right be a constitutional right that was recognized by the United
      States Supreme Court [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)(iii)
      (emphasis added).       Assuming arguendo the United States
      Supreme Court recognized a new constitutional right in Alleyne,
      neither the United States Supreme Court nor the Pennsylvania
      Supreme Court has held the right applies retroactively to cases
      in which the judgment of sentence had become final.
      Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
      2014). Stated differently, the Superior Court in Miller held the
      United States Supreme Court’s decision in Alleyne applies only
      to cases which were pending, or on direct appeal at the time,
      Alleyne was decided; the Alleyne decision does not apply to
      cases seeking collateral review after the judgment of sentence
      has become final. Here, [Appellant’s] judgment of sentence

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       became final in 1996. Accordingly, under Miller, the Supreme
       Court’s decision in Alleyne, does not apply. Miller, 102 A.3d at
       995.

       Second, even if the Alleyne decision applied retroactively to
       cases seeking collateral review, the instant Petition is untimely.
       Section 9545(b) requires any petition invoking one of the
       timeliness exceptions to be filed within sixty days of the date the
       claim could have been presented. 42 Pa.C.S. § 9545(b)(2). In
       this case, the Supreme Court decided Alleyne, and thereby
       recognized a new constitutional right, on June 17, 2013. See
       Alleyne, supra. Accordingly, under § 9545(b)(2), any petition
       seeking relief based on the new constitutional right recognized in
       Alleyne would need to be filed no later than August 16, 2013.
       [Appellant] did not file the instant [Petition] until February 18,
       2015 – 611 days after the United States Supreme Court decided
       Alleyne. For this [additional] reason, the instant Petition is
       untimely.

PCRA Court Opinion, 10/21/15, at 4-5.

       Our review of the record supports the PCRA court’s conclusions. See

also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015)

(holding that, “Alleyne is not entitled to retroactive effect in [the] PCRA

setting.”). Thus, although Alleyne implicates the legality of Appellant’s

sentence, the PCRA court correctly concluded that it lacked jurisdiction to

address Appellant’s issue. See Miller.2




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2
  Appellant’s reliance upon several decisions from this Court, as well as our
Supreme Court’s decision in Commonwealth v. Hopkins, 117 A.3d 247
(Pa. 2015), is inapposite because these cases involved direct appeals rather
than post-conviction challenges to judgments of sentence that had already
become final. See Appellant’s Brief at 9-15.




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     In sum, the PCRA court correctly concluded that Appellant failed to

establish any exception to the PCRA’s time-bar. The PCRA court therefore

properly dismissed Appellant’s third PCRA petition as untimely filed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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