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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE SUPERIOR COURT OF
PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA
Appe||ee

RODN EY DOMANICK EVANS

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Appellant No. 298 WDA 2016

Appeal from the PCRA Order January 26, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002898-2013

BEFORE: FORD ELLIO`|_|', P.J.E., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 24, 2016

Rodney Domanick Evans appeals from the trial court's order denying
his petition filed pursuant to the Post Conviction Relief Act (PCRA).1 We
affirm.

In May 2014, Evans pled guilty to possession with intent to deliver
(PWID) (heroin)2 and firearms not to be carried without a license.3 On July
24, 2014, Evans was sentenced to 36-72 months' imprisonment on the drug
charge and 12-24 months' imprisonment on the firearms Charge; he was

determined to be ineligible for the Recidivism Risk Reduction Incentive

 

1 42 Pa.C.s. § 9541-9546.
2 35 P.s. § 780-113(a)(3o).

3 18 Pa.C.s. § 6106(a)(1).

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(RRRI) Program. The court imposed a mandatory minimum sentence on
Evans' drug conviction. See 18 Pa.C.S. § 7508(a)(7)(ii) (mandatory
minimum sentence of three years in prison and $15,000 fine when
aggregate weight of heroin is at least 5.0 grams but less than 50 grams).
No post-sentence motions or direct appeal were filed.

On October 2, 2015, Evans filed a PCRA petition alleging that his
mandatory minimum sentence was illegal under the dictates of Alleyne v.
United States, 133 S.Ct. 2151 (2013). On January 26, 2016, the trial
court denied Evans' petition as untimely. This timely appeal follows in which
he raises the following question for our consideration: “Did the lower court
commit reversible error in failing to apply the decisions of Alleyne v. United
States and Commonwealth v. Newman which makes [Evans'] mandatory
sentence illegal and in determining that Mr. Evans' PCRA [petition] was not
filed in a timely manner." Appellant's Brief, at 4.

The standard of review of an order denying a PCRA petition is whether
that determination is supported by the evidence of record and 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.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

Before we address the merits of Evans' claim on appeal, we must
determine whether his PCRA was timely filed. Generally, a petition for PCRA
relief, including a second or subsequent petition, must be filed within one

year of the date the judgment is final. See 42 Pa.C.S. § 9545(b)(1); see

_2_

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also Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997). There
are, however, exceptions to the time requirement, set forth at 42 Pa.C.S. §
9545(b). Where the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition is met, the petition will be
considered timely. Id. These exceptions include interference by
government officials in the presentation of the claim, after-discovered facts
or evidence, and an after-recognized constitutional right. 42 Pa.C.S. §
9545(b)(1)(ii)-(iii). A PCRA petition invoking one of these exceptions must
“be filed within 60 days of the date the claims could have been presented."
Id. at (b)(2). The timeliness requirements of the PCRA are jurisdictional in
nature and, accordingly, a PCRA court cannot hear untimely petitions.
Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003).

Instantly, Evans filed his PCRA petition on October 2, 2015. Evans'
judgment of sentence became final for purposes of the PCRA on August 24,
2014, after the time expired for him to file a direct appeal from his sentence.
Thus, he had until August 24, 2015 to file a timely PCRA petition. Because
Evans' petition was filed more than one month beyond this date, it is facially
untimely. However, we must determine whether Evans has pled and proven
an exception to the PCRA time bar.

Instantly, Evans does not allege any section 9545(b)(1) exception.
Rather, his illegal sentence claim is predicated upon the holding of the
United States Supreme Court decision in Alleyne, supra, and the

application of an unconstitutional mandatory minimum statute, 18 Pa.C.S. §

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7508. In Alleyne, the Supreme Court held that “facts that increase
mandatory minimum sentences must be submitted to the jury" and must be
found beyond a reasonable doubt. Id., 133 S.Ct. at 2163. A challenge to a
sentence premised upon Alleyne implicates the legality of the sentence.
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).
Moreover, while 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. See 42 Pa.C.S. § 9543(a)(2)(vii).

While Evans is correct that the mandatory minimum statute under
which he was sentenced has been held unconstitutional, Commonwealth v.
Fennell, 105 A.3d 13 (Pa. Super. 2014), 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)); see also Commonwealth v. Miller,
102 A.3d 988 (Pa. Super. 2014) (where PCRA lacks jurisdiction over
untimely PCRA petition and no timeliness exception proven, no relief due
illegal sentence claim based on unconstitutional mandatory minimum under

Alleyne).4 Because Evans' petition is untimely and he does not meet any

 

4 See also Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016)
(Alleyne does not apply retroactively to cases pending on collateral review).

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timeliness exception, the trial court properly dismissed his petition.
.lohnston, supra.

Order affirmed.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 101 2412016

