J-S29012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLES JONES,

                            Appellant                 No. 1062 WDA 2015


              Appeal from the PCRA Order Entered June 22, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000080-1998


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JUNE 1, 2016

        Appellant, Charles Jones, appeals pro se from the post-conviction

court’s June 22, 2015 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The sole issue

presented for our review is whether Appellant is entitled to relief to correct

his ostensibly illegal sentence. After careful review, we affirm.

        Appellant was convicted of third-degree murder in 1999 for the killing

of Kevin Austin on December 8, 1997.1 During Appellant’s direct appeal, this

Court briefly summarized the facts adduced at trial as follows:


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 This was Appellant’s second jury trial for the same offense. His first trial,
held in 1998, resulted in a mistrial due to a hung jury.
J-S29012-16


            The charges stemmed from a drug deal gone wrong. The
      victim, his cousin, Carlos Brewer, and Dee Stubbs, a friend of
      Brewer's, met with Appellant and another man to negotiate the
      purchase of marijuana.      As Brewer, Stubbs and Appellant's
      companion stood waiting, Appellant and the victim disappeared
      around a corner. Seconds later, the group heard a gunshot, and
      the victim lay on the ground mortally wounded. Everyone ran.
      There were no eyewitnesses to the shooting, but all of the
      witnesses agreed on the sequence of events. Appellant's first1
      version of what occurred was that a man, described only as
      masked, came from an unspecified direction, fired once and
      disappeared.    It should be noted that the criminalist who
      examined the victim’s clothing opined that the shot which killed
      the victim had been fired from a distance of no more than 12 to
      18 inches.
         1
          Later, Appellant told police that after he had "done it," he
         ran away.

Commonwealth v. Jones, No. 1481 WDA 1999, unpublished memorandum

at 1-2 (Pa. Super. filed July 14, 2000).

      Appellant   was   sentenced   on     July   27,   1999,   to   20-40   years’

incarceration for third-degree murder, 18 Pa.C.S. § 2502(c).           He filed a

post-sentence motion seeking modification of his sentence, which was

denied on August 9, 1999. This Court affirmed his judgment of sentence on

July 14, 2000, and our Supreme Court denied his allocatur petition on

November 16, 2000. See Commonwealth v. Jones, 761 A.2d 1235 (Pa.

Super. 2000) (unpublished memorandum), appeal denied, 788 A.2d 374

(Pa. 2000).




                                     -2-
J-S29012-16



       Appellant filed a pro se PCRA petition, his first, on February 13, 2001.

Counsel was appointed but ultimately filed a Turner/Finley2 “no merit”

letter, and a petition to withdraw, on August 13, 2001.       The PCRA court

granted counsel’s motion to withdraw and dismissed the petition on

September 28, 2001.          Appellant filed a timely, pro se appeal from that

decision, but this Court affirmed the PCRA court’s order on August 12, 2002,

and our Supreme Court denied Appellant’s petition for allowance of appeal

on December 18, 2002. See Commonwealth v. Jones, 809 A.2d 958 (Pa.

Super. 2002) (unpublished memorandum), appeal denied, 813 A.2d 838

(Pa. 2002).

       Appellant filed a second pro se PCRA petition, the subject of the

instant appeal, on November 5, 2014. Counsel was appointed, but filed a

Turner/Finley “no merit” letter on June 1, 2015. That same day, the PCRA

court filed notice of its intent to dismiss Appellant’s petition without a

hearing, pursuant to Pa.R.Crim.P. 907, on the basis that the petition was

untimely filed and no exception applied.         The PCRA court subsequently

issued an order dismissing the petition, and permitting counsel to withdraw,

on June 22, 2015. Appellant filed a timely, pro se appeal, and now presents

the following question for our review:



____________________________________________


2
   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



                                           -3-
J-S29012-16


      1. Is the petitioner’s sentence illegal, as the sentencing court did
         not have statutory authority to impose the current sentence?

Appellant’s Brief, at 7 (unnecessary capitalization omitted).

      Our standard and scope of review regarding the denial of a PCRA

petition is well settled.   We review the PCRA court’s findings of fact to

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

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

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      In order to be considered timely,

      [a] PCRA petition, including a second or subsequent one, must
      be filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
      are jurisdictional; therefore, a court may not address the merits
      of the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

      The three statutory exceptions for an untimely petition under the PCRA

consist of the following:


                                     -4-
J-S29012-16


        (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness

exception pursuant to the statute must “be filed within 60 days of the date

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

       Here, Appellant’s sentence became final in February of 2001, 90 days

after our Supreme Court denied allocatur in Appellant’s direct appeal. 3 The

instant PCRA petition was filed on November 5, 2014, well beyond one year

after Appellant’s judgment of sentence became final; thus, the petition is

untimely on its face.        Accordingly, the trial court could not address the

merits of Appellant’s petition unless a timeliness          exception applies.

Appellant makes no explicit attempt to avail himself of a particular timeliness

exception.

       Appellant does argue that he attempted to raise PCRA illegal

sentencing concerns in his first PCRA petition, but that his counsel at the

____________________________________________


3
 The time for seeking a petition for writ of certiorari with the United States
Supreme Court is 90 days.



                                           -5-
J-S29012-16



time waived those claims on appeal. Appellant’s Brief, at 8. This could be

considered an attempt to excuse the untimeliness of his petition by pointing

to the failures of prior counsel to preserve his claim(s).        However, “[i]t is

well settled that allegations of ineffective assistance of counsel will not

overcome      the   jurisdictional    timeliness   requirements   of   the   PCRA.”

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Thus, prior

counsel’s failure to properly preserve Appellant’s illegal sentencing claim(s)

is of no moment; formulating his claim in terms of ineffectiveness does not

allow Appellant to escape his burden to demonstrate an applicable

exception.

       Appellant also argues that he is entitled to relief under Alleyne v.

United States, 133 S.Ct. 2151 (2013) (holding that facts that increase

mandatory minimum sentences must be submitted to the jury and must be

found beyond a reasonable doubt). Or, at least, Appellant attempts to

portray his sentence as violative of Alleyne and/or its predecessor,

Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any fact that

increases penalty for crime beyond prescribed statutory maximum must be

submitted to jury and proved beyond reasonable doubt, except the fact of a

prior conviction).4 However, it is also well established that Alleyne cannot

satisfy an exception to the PCRA’s jurisdictional time-bar:

____________________________________________


4
  In fact, however, Appellant’s illegal sentencing claims do not at all appear
to relate to Alleyne and/or Apprendi. Appellant does not even allege that
(Footnote Continued Next Page)


                                           -6-
J-S29012-16


             Even assuming that Alleyne did announce a new
      constitutional right, neither our Supreme Court, nor the United
      States Supreme Court has held that Alleyne is to be applied
      retroactively to cases in which the judgment of sentence had
      become final.      This is fatal to [the a]ppellant's argument
      regarding the PCRA time-bar. This Court has recognized that a
      new rule of constitutional law is applied retroactively to cases on
      collateral review only if the United States Supreme Court or our
      Supreme Court specifically holds it to be retroactively applicable
      to those cases. Commonwealth v. Phillips, 31 A.3d 317, 320
      (Pa. Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059
      (2012), citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478,
      150 L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
      Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
      purposes of subsection (iii), the language ‘has been held by that
      court to apply retroactively’ means the court announcing the rule
      must have also ruled on the retroactivity of the new
      constitutional right, before the petitioner can assert retroactive
      application of the right in a PCRA petition[]”), appeal denied, 597
      Pa. 715, 951 A.2d 1163 (2008). …

            We are aware that an issue pertaining to Alleyne goes to
      the legality of the sentence. See Commonwealth v. Newman,
      99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (stating, “a
      challenge to a sentence premised upon Alleyne likewise
      implicates the legality of the sentence and cannot be waived on
      appeal[ ]”). It is generally true that “this Court is endowed with
      the ability to consider an issue of illegality of sentence sua
      sponte.” Commonwealth v. Orellana, 86 A.3d 877, 883 n.7
      (Pa. Super. 2014) (citation omitted). However, in order for this
      Court to review a legality of sentence claim, there must be a
      basis for our jurisdiction to engage in such review.          See
      Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.
      Super. 2011) (stating, “[a] challenge to the legality of a
      sentence ... may be entertained as long as the reviewing court
      has jurisdiction[ ]”) (citation omitted). As this Court recently
                       _______________________
(Footnote Continued)

he was subject to a mandatory minimum sentence, or that he was sentenced
beyond the statutory maximum based on facts proven without a jury and by
a standard less than beyond a reasonable doubt. Nevertheless, we do not
reach this level of merit analysis since Appellant does not meet an applicable
timeliness exception.



                                            -7-
J-S29012-16


      noted, “[t]hough not technically waivable, a legality [of
      sentence] claim may nevertheless be lost should it be raised ...
      in an untimely PCRA petition for which no time-bar exception
      applies, thus depriving the court of jurisdiction over the claim.”
      [Commonwealth v.] Seskey, [86 A.3d 237,] 242 [(Pa. Super.
      2014)].

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

(footnote omitted).

      Accordingly, for the aforementioned reasons, we conclude that

Appellant has not proven the applicability of any exception to the PCRA’s

timeliness requirement. Thus, the PCRA court lacked jurisdiction to consider

the merits of his illegal sentencing claim(s). Consequently, the PCRA court

did not err when it denied Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2016




                                     -8-
