J-S23045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS P. RICHARD, SR.                     :
                                               :
                       Appellant               :   No. 217 WDA 2019

            Appeal from the PCRA Order Entered November 28, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0003607-1999


BEFORE:      BENDER, P.J.E., NICHOLS, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                 FILED JUNE 04, 2019

       Appellant, Thomas P. Richard, Sr., appeals pro se from the order of the

Court of Common Pleas of Westmoreland County that dismissed his seventh

petition filed under the Post Conviction Relief Act (PCRA)1 without a hearing.

We affirm.

       In 2000, Appellant was convicted by a jury of rape, involuntary deviate

sexual intercourse (IDSI), and related offenses arising out of his violent sexual

assault on his eight-year-old daughter and was sentenced to an aggregate

251/2 to 51 years’ incarceration. See Commonwealth v. Richard, No. 297

WDA 2005, unpublished memorandum at 1-3 (Pa. Super. filed March 13, 2006)

(First PCRA Opinion); Commonwealth v. Richard, No. 66 WDA 2001,

unpublished memorandum at 1-2 (Pa. Super. filed April 12, 2002) (Direct
____________________________________________


1   42 Pa.C.S. §§ 9541–9546.



*    Retired Senior Judge assigned to the Superior Court.
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Appeal Opinion). Appellant timely filed a direct appeal, and on April 12, 2002,

this Court affirmed the judgment of sentence. Appellant filed a petition for

allowance of appeal, which the Pennsylvania Supreme Court denied on August

27, 2002. Commonwealth v. Richard, 806 A.2d 860 (Pa. 2002).

      Appellant filed a timely first PCRA petition on August 27, 2003, which

the PCRA court denied following evidentiary hearings. Trial Court Docket

Entries at 21-24. This Court affirmed the denial of that PCRA petition on March

13, 2006 and the Pennsylvania Supreme Court denied allowance of appeal on

August 29, 2006. Between September 2006 and February 2016, Appellant

filed four more unsuccessful PCRA petitions. Trial Court Docket Entries at 27-

40;   Commonwealth       v.   Richard,   No.   327 WDA 2017,      unpublished

memorandum at 2 (Pa. Super. filed June 9, 2017) (Sixth PCRA Opinion). In

March 2016, Appellant filed a sixth PCRA petition in which he alleged that his

sentence was illegal because the mandatory minimum sentence statute that

applied to his IDSI convictions was unconstitutional under Alleyne v. United

States, 570 U.S. 99 (2013). Sixth PCRA Opinion at 2, 5. The PCRA court

dismissed that PCRA petition as untimely and on June 9, 2017, this Court

affirmed.   On November 1, 2017, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal from the dismissal of his sixth

PCRA petition.

      On March 22, 2018, Appellant filed the instant, seventh PCRA petition.

On November 28, 2018, the PCRA court dismissed this PCRA petition. This




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timely appeal followed.     In this appeal, Appellant presents the following

question for this Court’s review:

      Should 1 Pa. C.S.A. § 1925 operate and yield to the imperative of
      correcting Appellant’s illegal sentence, imprisonment and
      conviction under the now declared void Mandatory Minimum Law
      to avoid a total miscarriage of justice; by “severing” the time-bar
      of Section 9545(b)(1)(i-iii), so as to authorize review and relief as
      CODIFIED by Section 9542’s explicit language?

Appellant’s Br. at 4 (emphasis added).

      Initially, we must address whether the PCRA petition at issue in this

appeal was timely filed. We conclude that it was not. The PCRA provides that

      [a]ny 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;

      (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).

      This time limit is mandatory and jurisdictional, and a court may not

ignore it and reach the merits of the petition, even where the convicted

defendant claims that his sentence is illegal. Commonwealth v. Fahy, 737



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A.2d 214, 223 (Pa. 1999); Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.

Super. 2018); Commonwealth v. Woods, 179 A.3d 37, 42-43 (Pa .Super.

2017).

       Appellant’s judgment of sentence became final on November 25, 2002,

upon the expiration of the ninety day period to seek review with the United

States Supreme Court after the denied of his petition for allowance of appeal.

42 Pa.C.S. § 9545(b)(3). The instant PCRA petition, filed more than 15 years

after the judgment became final, is patently untimely unless Appellant alleges

and proves one of the three limited exceptions set forth in Subsection

9545(b)(1)(i)-(iii). In addition, these exceptions can apply only if Appellant

also shows that that his claim could not have been presented before December

24, 2017. 42 Pa.C.S. § 9545(b)(2); Act of October 24, 2018, P.L. 894, No.

146, §§ 2-4.2

       Appellant has not shown that any of the exceptions to the PCRA’s one-

year time limit apply to his seventh PCRA petition.        The exceptions in

Subsections (b)(1)(i) and (b)(1)(ii) do not apply because Appellant does not
____________________________________________


2 Subsection 9545(b)(2) provides that “[a]ny petition invoking an exception
provided in paragraph (1) shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2). At the time that
Appellant filed this PCRA petition, however, Subsection 9545(b)(2) required
that such PCRA petitions be filed within 60 days of the date the claim could
have been presented. Although application of that 60-day limit to this PCRA
petition would bar claims that could have been presented before January 21,
2018, the Act amending Subsection 9545(b)(2) provided that the one-year
period applies to claims arising on or after December 24, 2017. Act of October
24, 2018, P.L. 894, No. 146, §§ 3, 4. Therefore PCRA claims that could not
have been presented before December 24, 2017 are not barred by Subsection
9545(b)(2) in this case.

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allege any interference by government officials or that his PCRA claim is based

on any newly discovered facts. Rather, he contends that his sentence must

be reduced because the mandatory minimum sentence statute under which

he was sentenced is unconstitutional under Alleyne and that the time limits

of the PCRA cannot be enforced to bar him from raising this issue. Appellant’s

Br. at 6-12.

      Such arguments are insufficient make Appellant’s seventh PCRA petition

timely. While his Alleyne claim is based on a constitutional right recognized

more than one year after his judgment of sentence became final, Appellant

cannot satisfy the requirements of Subsection (b)(1)(iii) because Alleyne has

not been held by the United States Supreme Court or the Pennsylvania

Supreme Court to apply retroactively to sentences on collateral review. 42

Pa.C.S. § 9545(b)(1)(iii). To the contrary, the Pennsylvania Supreme Court

has held that Alleyne does not apply retroactively to collateral attacks on a

convicted defendant’s mandatory minimum sentence where the defendant had

exhausted      his   direct   appeal   rights   before   Alleyne   was   decided.

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). As was

noted above, the claim that a sentence is illegal is not an exception to the

PCRA’s time limits. Fahy, 737 A.2d at 223; Pew, 189 A.3d at 488; Woods,

179 A.3d at 43.

      Moreover, Appellant has not shown that his claim could not have been

presented before December 24, 2017, as is required by Subsection

9545(b)(2). Appellant asserted an Alleyne illegality of sentence claim in his

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sixth PCRA petition, filed in March 2016. Appellant cites no case in his brief

in this appeal that was decided on or after December 24, 2017 and makes no

reference to any event on or after December 24, 2017 on which he bases the

seventh PCRA petition or that he contends now enables him to file the claim

that it asserts.

      Because this PCRA petition was untimely, we affirm the PCRA court’s

order dismissing Appellant’s seventh PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2019




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