J-S47020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RONALD STUART KAMARER

                            Appellant              No. 1594 MDA 2015


                  Appeal from the Order Entered July 15, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000696-2005

BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED JUNE 09, 2016

        Ronald Kamarer appeals from an order dismissing his petition under

the Post Conviction Relief Act (“PCRA”), which he styled as a habeas corpus

petition. We affirm.

        On December 12, 2006, Kamarer pled guilty to possession with intent

to deliver a controlled substance (“PWID”)1 and other drug-related offenses.

On May 16, 2007, the court sentenced Kamarer to 5-10 years’ imprisonment

for PWID; it did not impose any further sentence on the other charges. The

court stated in its sentencing order that Kamarer’s sentence for PWID was a

mandatory minimum. On May 25, 2007, Kamarer filed a motion to modify

his sentence. On May 30, 2007, the court denied his post-sentence motion.

____________________________________________


1
    35 P.S. § 780-113(a)(30).
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Kamarer filed a direct appeal, and this Court affirmed on July 10, 2008.

Kamarer filed a petition for allowance of appeal, which the Supreme Court

denied on May 6, 2009.         Kamarer did not appeal to the United States

Supreme Court, so his sentence became final on August 4, 2009.

      In 2010, Kamarer filed a timely PCRA petition.       The PCRA court

appointed counsel to represent Kamarer but ultimately denied the petition

after a hearing. On September 30, 2011, this Court affirmed.

      On November 10, 2014, Kamarer filed a PCRA petition alleging that his

mandatory minimum sentence was unconstitutional under Alleyne v.

United States, 133 S.Ct. 2151 (2013), and requesting appointment of

counsel. On December 9, 2014, the PCRA court denied Kamarer’s request

for the appointment of counsel and directed him to file a supplemental

petition within thirty days.   Kamarer did not comply with this order.   On

February 9, 2015, the court filed an opinion and order stating its intent to

dismiss Kamarer’s petition without a hearing. On March 30, 2015, the court

dismissed Kamarer’s PCRA petition.

      On June 18, 2015, Kamarer filed what he labeled a “habeas corpus”

petition, again claiming that his sentence was unconstitutional under

Alleyne. On July 15, 2015, the court filed an opinion and order dismissing

Kamarer’s petition. Kamarer filed a timely appeal from this order, and both

Kamarer and the court complied with Pa.R.A.P. 1925.




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      In this appeal, Kamarer argues that the court erred in dismissing his

“habeas corpus” petition because his sentence was unconstitutional under

Alleyne.   At the outset, we agree with the PCRA court that it properly

treated Kamarer’s petition as a PCRA petition instead of a habeas corpus

petition. The PCRA provides: “The action established in this subchapter shall

be the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies for the same purpose that exist when

this subchapter takes effect, including habeas corpus and coram nobis.” 42

Pa.C.S.A. § 9542. Thus, where a petitioner's claim is cognizable under the

PCRA, the petitioner must proceed thereunder. Commonwealth v. Taylor,

65 A.3d 462, 465–66 (Pa.Super.2013). A court must treat such a petition as

a PCRA petition regardless of its title. Id.

      This Court has held that Alleyne claims implicate the legality of a

sentence. Accordingly, Kamarer’s Alleyne argument is cognizable under the

PCRA, not under habeas corpus law. See Commonwealth v. Newman, 99

A.3d 86, 90 (Pa.Super.2014) (en banc); Commonwealth v. Ruiz, 131 A.3d

54, 60 (Pa.Super.2015) (Alleyne claim is challenge to legality of sentence;

petitioner could raise Alleyne in timely filed PCRA petition where his direct

appeal was still pending when Alleyne was decided).

      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


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doubt. Id., 131 S.Ct. at 2160-61. Kamarer claims that his sentence is an

unconstitutional mandatory minimum sentence because the court imposed

sentence without a jury and under a preponderance of the evidence

standard.

      The PCRA court lacked jurisdiction to review Kamarer’s Alleyne

argument under the PCRA’s one-year statute of limitations, 42 Pa.C.S. §

9545(b).    Section 9545 provides that a petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to

hear an untimely PCRA petition.      Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa.2003)). A judgment is 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). The court cannot excuse

the late filing of a PCRA petition unless the petitioner alleges and proves:

            (i) the failure to raise the claim previously was the
            result of interference by government officials with
            the presentation of the claim in violation of the
            Constitution or laws of this Commonwealth or the
            Constitution or laws 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


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             (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).   A petition invoking one or more of these

exceptions must “be filed within 60 days of the date the claim could have

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

      Kamarer’s judgment of sentence became final on August 4, 2009, his

last day to appeal to the United States Supreme Court.          The statute of

limitations for filing a PCRA petition expired on August 4, 2010. The present

PCRA petition, filed on June 18, 2015, almost five years after expiration of

the statute, is untimely on its face.

      Nor does any exception in section 9545(b)(1)(i-iii) apply to this case.

Kamarer does not allege that the government interference or newly acquired

evidence exceptions in subsections (b)(1)(i-ii) apply to his case. Subsection

(b)(1)(iii) does not apply, because neither the United States Supreme Court

nor the Pennsylvania Supreme Court has held that Alleyne applies

retroactively.    See Commonwealth v. Miller, 102 A.3d 988, 995

(Pa.Super.2014) (Alleyne does not apply retroactively to untimely PCRA

petition).

      For these reasons, the court properly dismissed Kamarer’s petition

seeking relief under Alleyne.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2016




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