J-S48020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    LANCE ALAN HIXON

                             Appellant               No. 1492 MDA 2016


             Appeal from the PCRA Order entered August 11, 2016
                 In the Court of Common Pleas of 39th District
                              Fulton County Branch
               Criminal Division at No: CP-29-CR-0000260-2011


BEFORE: OTT, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 20, 2017

        Appellant, Lance Alan Hixon, appeals pro se from the August 11, 2016

order entered by the Court of Common Pleas of the 39th Judicial District,

Fulton County Branch, dismissing as untimely his petition for collateral relief

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

        The factual and procedural background is undisputed. Briefly, following

an incident involving a minor, a jury convicted Appellant of aggravated

assault, endangering the welfare of children, and simple assault. On May 7,



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S48020-17


2013, the trial court sentenced Appellant to an aggregate term of

imprisonment of 60 to 180 months. Appellant did not file post-sentence

motions or a direct appeal.

      Appellant filed      the   instant PCRA   petition on August 4, 2015,

approximately two years after his judgment of sentence became final on June

6, 2013 (i.e., 30 days after the expiration of time for filing an appeal with this

Court).     Appellant argues his PCRA petition qualifies for the timeliness

exception    set   forth    in   § 9545(b)(1)(ii)   based   on   his   reading   of

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). In Appellant’s view,

Hopkins rendered his sentence unconstitutional and illegal.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA petitions,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final” unless an exception to timeliness

applies.    42 Pa.C.S.A. § 9545(b)(1).        “The PCRA’s time restrictions are

jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this

Court nor the [PCRA] court has jurisdiction over the petition.            Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks


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omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed.    See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of Brady claim separate from consideration of its timeliness).

The timeliness requirements of the PCRA petition must be met, even if the

underlying claim is a challenge to the legality of the sentence.           See

Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“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.”) (citing

Commonwealth v. Fahy, 737 A.2d 214, 223 (1999)).

         As noted, Appellant argues that Hopkins qualifies as an exception to

the one-year filing deadline under 42 Pa.C.S.A. § 9545(b)(1)(ii).           We

disagree.     In Hopkins, the Pennsylvania Supreme Court held that 18

Pa.C.S.A. § 6317, which required a mandatory minimum sentence if certain

controlled substances crimes occurred within 1,000 feet of a school, was

unconstitutional under Alleyne v. United States, 133 S. Ct. 2151 (2013).

Hopkins, 117 A.3d at 249. Hopkins was decided on direct appeal, and did

not mandate its application to post-conviction proceedings.     Id. Even if the

Supreme Court had said its ruling applied to post-conviction proceedings,

Appellant failed to explain how Hopkins would be relevant here, since his

case does not involve Section 6317. Thus, Appellant’s reliance on Hopkins is

misplaced.


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      It should also be noted that Hopkins is an application of Alleyne.

Alleyne, however, is not applicable to the instant matter because Appellant’s

case was at the collateral stage when Alleyne was decided on June 17, 2013,

and Alleyne does not apply retroactively to cases on collateral review. See

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

that Alleyne does not apply retroactively to cases pending on collateral

review[.]”). “If [Alleyne] does not apply retroactively, then a case extending

[Alleyne] should not apply retroactively.” Walker v. United States, 810

F.3d 568, 575 (8th Cir. 2016).

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




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