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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                           :
VICTOR YOUNG,                              :
                                           :
                         Appellant         :
                                           :     No. 1730 WDA 2015

                 Appeal from the PCRA Order October 2, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001698-2006

BEFORE: OLSON, DUBOW AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                           FILED AUGUST 11, 2016

        Appellant, Victor Young, appeals pro se from the October 2, 2015

Order entered in the Court of Common Pleas of Erie County dismissing

Appellant’s pro se Post Conviction Relief Act (PCRA) Petition as untimely. 42

Pa.C.S. §§9541-9546. We affirm.

        On April 3, 2007, Appellant pled guilty but mentally ill to Rape and

Involuntary Deviate Sexual Intercourse.1       On August 1, 2007, the court

sentenced Appellant to an aggregate term of 17 to 34 years’ incarceration.

On August 10, 2007, Appellant filed a Motion to Modify or Reconsider

Sentence, which the sentencing court denied on the same day.          Appellant



*
    Retired Senior Judge Assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(a)(2); 18 Pa.C.S. § 3123(a)(2), respectively.
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did not file an appeal, thus his sentence became final on September 10,

2007, after the period to file a direct appeal expired.2        42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 903.

      More than seven years later, on July 23, 2015, Appellant filed the

instant PCRA Petition, his fourth.   On September 8, 2015, the PRCA court

issued a Notice of Intent to Dismiss Without a Hearing Pursuant to

PA.R.Crim.P. 907. On September 25, 2015, Appellant filed an Objection to

Intent to Dismiss Post Conviction Relief Act Pursuant to Pa.R.Crim.Proc. Rule

907. On October 2, 2015, the PCRA court issued an order dismissing

Appellant’s PCRA Petition as untimely.     Order, 10/2/15.   Appellant timely

appealed; Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

    1. Did the [PCRA] [c]ourt err in denying the [PCRA] Petition without a
       hearing by misapprehending the retrospective application in
       Commonwealth v. Hopkins, 117 A3d 247 (2015) when it’s
       paradigm, Alleyne v. United States, 133 S.Ct. 2151 (2013) created
       a “substantive rule,” which “the Constitution requires State Collateral
       Review Courts to give retroactive effect to that rule?”

    2. Did the [PCRA] Court err in denying the [PCRA] Petition without a
       hearing when [Appellant] contends that through the Court’s inherent
       power, the [PCRA] [c]ourt always retains jurisdiction to correct his
       patently unconstitutional, and therefore illegal sentence?



2
 The period for direct appeal expired on Sunday, September 9, 2007.
However, “[w]henever the last day of any such period shall fall on Saturday
or Sunday . . . such day shall be omitted from the computation.” 1 Pa.C.S.
§ 1908.




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   3. Did the [PCRA] [c]ourt err in denying the [PCRA] Petition without a
      hearing when [Appellant] filed the instant [PCRA] Petition timely by
      filing within sixty (60) days of learning of the Supreme Court of
      Pennsylvania’s decision in Commonwealth v. Hopkins, 117 A.3d 247
      (2015)?

Appellant’s Brief at 4 (reordered for ease of disposition).

      In the instant case, our standard of review is well settled:

      Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court's determination and
      whether the PCRA court's decision is free of legal error. The
      PCRA court's findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015) (quotation and

citation omitted).

      A petitioner must file a PCRA petition, including a second or

subsequent petition, within one year of the date that the judgment becomes

final. 42 Pa.C.S. § 9545(b)(1). “If a petition is not filed within the one-year

time frame, the courts lack jurisdiction to grant relief unless the petitioner

can plead and prove that one of the three statutorily-enumerated exceptions

to the time-bar applies.” Commonwealth v. Fowler, 930 A.2d 586, 591

(Pa. Super. 2007).

      These exceptions include interference by government official, newly

discovered evidence, and the assertion of a newly recognized constitutional

right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition invoking one or more of

these exceptions must be filed within sixty days of the date the claim first

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



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      In this case, Appellant had to file a PCRA Petition on or before

September 10, 2008, or within one year of his sentence becoming final, for

it to be timely. 42 Pa.C.S. § 9545(b)(1). Instead, Appellant filed the instant

PCRA Petition on July 23, 2015, almost seven years after his sentence

became final. Therefore, the PCRA Petition was patently untimely. Id.

      In Appellant’s first two issues on appeal, he argues that the trial court

incorrectly dismissed his PCRA petition as untimely because an exception to

the time-bar exists, namely a newly recognized constitutional right. See 42

Pa.C.S. § 9545(b)(1)(iii). In response, the PCRA court opines:

      Petitioner attempts to establish an exception under § 9545 by
      claiming that pursuant to Alleyne v. United States, 133 S.Ct.
      2151 (2013), Commonwealth v. Hopkins, 2015 Pa. LEXIS
      1282 (Pa. June 15, 2015), and Commonwealth v. Wolfe, 106
      A.3d 800 (Pa. Super. 2014) he was subject to an illegal
      mandatory minimum sentence. However, Alleyne does not
      apply retroactively to cases in which judgment of sentence has
      become final. Commonwealth v. Miller, 102 A.3d 988, 995
      (Pa. Super. 2014).      Furthermore, Hopkins and Wolfe are
      factually and legally distinguishable from the case at bar, and
      similar to Alleyne, do not apply retroactively to cases in which
      judgment of sentence has become final.         Petitioners PCRA
      [P]etition is untimely, and he has failed to demonstrate a
      timeliness exception. Accordingly, this Court has no jurisdiction
      to address his claims.

Notice of Intent to Dismiss Without a Hearing Pursuant to Pa.R.Crim.P. 907,

filed 9/8/15, at 3 (footnote omitted). We agree.

      The Pennsylvania Supreme Court recently addressed this very issue,

and held unequivocally that “Alleyne does not apply retroactively to cases

pending on collateral review.”    Commonwealth v. Washington, No. 37



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EAP 2015, 2016 WL 3909088, at *8 (Pa. July 19, 2016). Accordingly, the

PCRA court was correct in determining that Appellant failed to satisfy the

new constitutional right exception to the time-bar. We find no error.

      Appellant’s third argument asserts that his PCRA Petition was timely

because he filed it within sixty days of learning about a new judicial decision,

and that an exception exists pursuant to Section 9545(b)(1)(ii), a newly

discovered fact. See 42 Pa.C.S. §9545(b)(1)(ii). However, this Court has

“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 v. Cintora, 69 A.3d 759, 763 (Pa.

Super. 2013); see also Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.

2011) (“[W]e hold that subsequent decisional law does not amount to a new

‘fact’ under section 9545(b)(1)(ii) of the PCRA”). Accordingly, Appellant’s

claim is without merit.

      The trial court did not err when it determined that Appellant’s PCRA

petition was patently untimely and that no exceptions to the time-bar exist.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2016


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