J-S46012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

SHAHIED I. JONES,

                            Appellant                    No. 3377 EDA 2015


             Appeal from the PCRA Order Entered October 19, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002298-2009


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED AUGUST 15, 2016

        Appellant, Shahied I. Jones, appeals from the post-conviction court’s

October 19, 2015 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        In February of 2010, Appellant was convicted by a jury of possession

with intent to deliver cocaine.        On March 8, 2010, he was sentenced to a

term of 7 to 14 years’ imprisonment, which “include[d] a mandatory

minimum       sentence      that   was    imposed   pursuant   to   18   Pa.C.S.   §

7508(a)(3)(iii).” PCRA Court Opinion, 12/3/15, at 1; see also 18 Pa.C.S. §

7508(a)(3)(iii) (directing a mandatory minimum sentence of 4 years’

incarceration where the weight of the substance possessed “is at least 100

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*
    Retired Senior Judge assigned to the Superior Court.
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grams”). Appellant filed a timely notice of appeal with this Court, but that

appeal was dismissed due to his failure to file a docketing statement.

      However, Appellant filed a timely PCRA petition seeking the restoration

of his direct appeal rights, which the court granted. He again appealed, and

this Court affirmed his judgment of sentence on August 15, 2012.

Commonwealth v. Jones, 60 A.3d 572 (Pa. Super. 2012) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal with

our Supreme Court.      Thus, his judgment of sentence became final on

September 14, 2012. See 42 Pa.C.S. § 9545(b)(3) (stating a judgment of

sentence becomes final at the conclusion of direct review or the expiration of

the time for seeking the review); Pa.R.A.P. 1113(a) (directing that “a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days of the entry of the order of the Superior Court

sought to be reviewed”).

      On July 6, 2015, Appellant filed a counseled PCRA petition.           On

September 24, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s petition as untimely. Appellant filed a response,

but on October 19, 2015, the court issued an order dismissing his petition.

Appellant filed a timely notice of appeal, and also timely complied with the

PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, he presents one issue for our review:

      1. Whether the PCRA court erred in not vacating [] Appellant’s
      mandatory-minimum sentence, which was unconstitutional, and
      therefore void ab[]initio, as the mandatory sentencing statute in

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      Pennsylvania has been ruled unconstitutional pursuant to
      Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), where
      [] Appellant filed his petition for relief within thirty (30) days of
      the date the newly recognized right was decided by the
      Pennsylvania Supreme Court?

Appellant’s Brief at 5 (unnecessary capitalization and emphasis omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.            Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of his claims.       See Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007).           Under the PCRA, any petition for post-

conviction relief, including a second or subsequent one, must be filed within

one year of the date on which the judgment of sentence becomes final,

unless   one   of   the   following   exceptions   set   forth    in   42   Pa.C.S.   §

9545(b)(1)(i)-(iii) applies:

      (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;



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            (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).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

      Here, as stated supra, Appellant’s judgment of sentence became final

in September of 2012 and, thus, his petition filed on July 6, 2015, is patently

untimely.   For this Court to have jurisdiction to review the merits of

Appellant’s claims, he must prove the applicability of one of the exceptions

to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b)(1).

      In this regard, Appellant attempts to satisfy the ‘new constitutional

right’ exception of section 9545(b)(1)(iii).    This Court has explained the

requirements for satisfying the ‘new constitutional right’ exception, as

follows:

      Subsection (iii) of Section 9545[(b)(1)] has two requirements.
      First, it provides that 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 provided
      in this section. Second, it provides that the right “has been held”
      by “that court” to apply retroactively. Thus, a petitioner must
      prove that there is a “new” constitutional right and that the right
      “has been held” by that court to apply retroactively. The
      language “has been held” is in the past tense. These words
      mean that the action has already occurred, i.e., “that court” has
      already held the new constitutional right to be retroactive to


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      cases on collateral review. By employing the past tense in
      writing this provision, the legislature clearly intended that the
      right was already recognized at the time the petition was filed.

Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (quoting

Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014)).

      In attempting to meet this exception, Appellant primarily relies our

Supreme Court’s decision in Hopkins.         There, the Court held that the

mandatory minimum sentencing scheme set forth in 18 Pa.C.S. § 6317

(“Drug-free school zones”) is unconstitutional in its entirety, as certain

provisions of that statute do not adhere to the rule announced by the United

States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151, 2163

(2013) (holding that “facts that increase mandatory minimum sentences

must be submitted to the jury” and found beyond a reasonable doubt). See

Hopkins, 117 A.3d at 262.

      Initially, Appellant incorrectly states that the court imposed a

mandatory minimum sentence in his case under the statute invalidated in

Hopkins, which was 18 Pa.C.S. § 6317.        See Appellant’s Brief at 3.   The

record instead reveals that Appellant’s mandatory minimum sentence was

imposed under 18 Pa.C.S. § 7508, based on the weight of the drugs

possessed by Appellant. See N.T. Sentencing Hearing, 3/8/10, at 4. Thus,

Hopkins is inapplicable on its face.

      In any event, even if Appellant had been sentenced under the statute

held unconstitutional in Hopkins, he would still be unable to meet the

timeliness exception of section 9545(b)(1)(iii) based on that decision. First,


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Hopkins did not announce a new constitutional right; instead, the Hopkins

Court simply assessed the validity of section 6317 under the rule announced

in Alleyne, and subsequent decisions by the Courts of this Commonwealth,

and concluded that section 6317 is unconstitutional.       Second, even if

Hopkins did announce a new rule, no decision by our Supreme Court or the

United States Supreme Court has held that Hopkins applies retroactively to

untimely, post-conviction petitioners such as Appellant.      Consequently,

Appellant’s reliance on Hopkins cannot satisfy the timeliness exception of

section 9545(b)(1)(iii).1

       We recognize that in Commonwealth v. Fennell, 105 A.3d 13 (Pa.

Super. 2014), this Court deemed section 7508 (the mandatory minimum

sentencing statute applied in this case) unconstitutional under Alleyne.

Appellant cites Fennell in contending that his mandatory minimum sentence

is “a nullity” that must be vacated, regardless of the untimeliness of his
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1
  Even though Appellant does not expressly rely on Alleyne, we note that
this Court has held that Alleyne does not satisfy the exception of section
9545(b)(1)(iii), because “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.” Miller, 102 A.3d at
995. Indeed, in the recent decision of Commonwealth v. Washington, __
A.3d __, 2016 WL 3909088 (Pa. filed July 19, 2016) (No. 37 EAP 2015), our
Supreme Court held that Alleyne does not apply retroactively to collateral
attacks on mandatory minimum sentences. However, if at some point the
United States Supreme Court holds that Alleyne does apply retroactively to
collateral review, Appellant may file a PCRA petition, within 60 days of that
decision, asserting the timeliness exception of section 9545(b)(1)(iii).




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petition,   because   “an   unconstitutional   statute   is   ineffective   for   any

purpose[,]” and “[i]t is as if it were never enacted.” Appellant’s Brief at 9,

11 (quoting Fornwalt v. Follmer, 616 A.2d 1040 (Pa. Super. 1992)).

However, as we stressed in Miller, “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.” Miller, 102 A.3d at 995 (emphasis added; citations

omitted).    The only way for an untimely PCRA petitioner to trigger this

Court’s jurisdiction to review his illegal sentence is for him to prove the

applicability of one of the PCRA’s timeliness exceptions.         See Miller, 102

A.3d at 992 (“Pennsylvania law makes clear that when a PCRA petition is

untimely, neither this Court nor the trial court has jurisdiction over the

petition.”) (citations and internal quotation marks omitted).          Because we

conclude, for the reasons stated supra, that Appellant has not met this

burden, we are without jurisdiction to vacate his mandatory minimum

sentence. Accordingly, we affirm the PCRA court’s order denying Appellant’s

untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2016


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