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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
DAVID HUGGINS, JR.,                        :
                                           :
                         Appellant         :     No. 945 MDA 2016

                    Appeal from the PCRA Order May 4, 2016
               In the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0000181-2010

BEFORE: OTT, DUBOW, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 12, 2017

        Appellant, David Huggins, Jr., appeals from the Order entered in the

Lancaster County Court of Common Pleas dismissing his first Petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as

untimely. After careful review, we affirm on the basis that Appellant’s PCRA

Petition is untimely and, thus, this Court lacks jurisdiction to review the

Petition.

        On April 19, 2011, a jury convicted Appellant of Corrupt Organizations,

Criminal Conspiracy, Criminal Use of a Communication Facility, and four

counts of Possession with Intent to Deliver a Controlled Substance.1        On

August 4, 2011, the trial court sentenced Appellant to an aggregate term of


*
    Retired Senior Judge Assigned to the Superior Court.
1
    18 Pa.C.S. §§ 911, 903, 7512, and 35 P.S. § 780–113(a)(30), respectively.
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9½ to 19 years’ incarceration.    The trial court imposed three mandatory

minimum sentences pursuant to 18 Pa.C.S. § 7508(a)(3)(ii).          See N.T.

Sentencing, 8/4/2011, at 33-34; PCRA Court Opinion, dated 5/4/16, at 6

n.6; Jury Verdict Sheet, dated 4/19/11, at 1-3.

      This Court affirmed the Judgment of Sentence on May 7, 2013, and

our Supreme Court denied allowance of appeal on November 19, 2013.

Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013), appeal

denied, 80 A.3d 775 (Pa. 2013). Appellant did not seek review by the U.S.

Supreme Court. Appellant’s Judgment of Sentence, therefore, became final

on February 17, 2014. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.

      Appellant filed the instant pro se PCRA Petition, his first, on November

5, 2015, raising an Alleyne claim.2 The PCRA court appointed counsel, and

counsel filed a Motion to Withdraw pursuant to Turner/Finley.3

      On March 14, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition.   Appellant filed a

response on April 4, 2016, repeating his illegal sentencing claim. On May 4,

2016, the PCRA court dismissed Appellant’s Petition without a hearing,


2
  Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013), 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 doubt. Id., 133 S.Ct. at 2160-61.
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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concluding it lacked jurisdiction to consider Appellant’s underlying claim

because the Petition was untimely and Appellant had failed to plead and

prove any one of the timeliness exceptions provided in 42 Pa.C.S.§

9545(b)(1).

      Appellant filed a timely Notice of Appeal.    The PCRA court filed a

Pa.R.A.P. 1925(a) Opinion, but did not order Appellant to file a Rule 1925(b)

Statement.

      Appellant presents three issues for our review:

      1) Whether the case of [Alleyne v. United States, 133 S.Ct
      2151 (U.S. 2013),] can be applied to the Appellant’s case based
      on recent court decisions?

      2) Whether the Appellant is serving an illegal sentence?

      3) Whether [Appellant] was denied his Sixth Amendment to the
      U.S. Constitution [and] his constitutionally guaranteed right to
      due process[?]

Appellant’s Brief at 5 (capitalization omitted).

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).




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      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any 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). 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 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, Appellant’s Judgment of Sentence became final on February 17,

2014, upon expiration of the time to file a Petition for Writ of Certiorari with

the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.

Ct. R. 13.      In order to be timely, Appellant needed to submit his PCRA

Petition by February 17, 2015.        Appellant filed this PCRA Petition on

November 5, 2015, well after the one-year deadline.           The PCRA court




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properly concluded that Appellant’s Petition is facially untimely. PCRA Court

Opinion, dated 5/4/16, at 7-8.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

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

            (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

            (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)-(2).

      Appellant attempts to invoke the timeliness exception under Section

9545(b)(1)(iii) in his challenge to the legality of his sentence by relying on

Alleyne, supra. As long as this Court has jurisdiction over the matter, a


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legality   of    sentencing   issue   is   reviewable       and   cannot   be    waived.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007).

However, a legality of sentencing issue must be raised in a timely filed PCRA

Petition over which we have jurisdiction.                See 42 Pa.C.S. § 9545(b);

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality

of sentence is always subject to review within the PCRA, claims must still

first satisfy the PCRA’s time limits or one of the exceptions thereto.”);

Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015);

Commonwealth v. Miller, 102 A.3d 988, 995-96 (Pa. Super. 2014)

(explaining that the decision in Alleyne does not invalidate a mandatory

minimum         sentence   when   presented      in    an   untimely   PCRA     Petition);

Commonwealth v. Ruiz, 131 A.3d 54, 56 (Pa. Super. 2015) (remanding

for   resentencing     without    mandatory      minimum       where   defendant     was

sentenced 12 days before Alleyne, his judgment of sentence was not final

on the date Alleyne was decided, and the defendant filed a timely PCRA

Petition over which this Court had jurisdiction).

       The United States Supreme Court decided Alleyne on June 17, 2013.

Appellant’s direct appeal was pending at that time. Although he could have

raised Alleyne in a timely PCRA petition because his appeal was pending

when Alleyne was decided, he did not.                 Rather, he raised the claim nine

months after the PCRA’s one-year deadline had passed.




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        Our Supreme Court has recently reiterated that Alleyne does not

apply     retroactively   on    post-conviction    collateral   review.    See

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

        Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely.       See

PCRA Court Opinion, dated 5/4/16, at 9-10. We, thus, affirm the denial of

PCRA relief.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2017




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