J-S63026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON R. RAYFORD,

                            Appellant                 No. 3249 EDA 2015


                Appeal from the PCRA Order September 30, 2015
                 In the Court of Common Pleas of Chester County
    Criminal Division at No(s): CP-15-CR-0000016-2008, CP-15-CR-0001637-
           2007, CP-15-CR-0002076-2007, CP-15-CR-0002079-2007


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 03, 2016

        Appellant, Jason R. Rayford, pro se, appeals from the order denying

his third petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized part of the procedural history of this

matter as follows:

        On March 31, 2008, after a trial spanning six (6) days . . . , a
        jury convicted [Appellant] of numerous charges in connection
        with the robberies of four (4) banks in Chester County,
        Pennsylvania over the course of six (6) months beginning
        September 30, 2006 and ending March 3, 2007. All four (4)
        dockets were consolidated together for purposes of trial.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.




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           [Appellant was sentenced] on October 24, 2008 to an
     aggregate term of twenty (20) to forty (40) years in a state
     correctional facility. [Appellant’s] sentence consisted of four (4)
     mandatory minimums of ten (10) to twenty (20) years under 42
     Pa.C.S.A. § 9714(a)(1), as [Appellant] already had two (2) prior
     convictions for Aggravated Robbery in the State of Tennessee.
     [The sentencing court] ran two (2) of these four (4) mandatories
     consecutive to each other and two (2) of them concurrently with
     each other. While [the sentencing court] initially made one of
     the mandatories run consecutive to a three (3) to ten (10) year
     term at Count I of docket number 15-CR-0002079-2007, [the
     sentencing court] modified [Appellant’s] sentence on March 2,
     2009 pursuant to a post-sentence Motion to Modify and Reduce
     Sentence filed on November 3, 2008, wherein [Appellant] raised
     a challenge to the legality of his mandatory sentences, to make
     this mandatory run concurrently with the three (3) to ten (10)
     year term. Thus, [Appellant’s] aggregate sentence in the above-
     captioned matters is twenty (20) to forty (40) years, consisting
     of four (4) mandatory minimums of ten (10) to twenty (20)
     years each, two (2) of which run consecutively to one another
     and two (2) of which run concurrently, with the remaining
     sentences on all of the lesser offenses for which [Appellant] was
     convicted running concurrently with the mandatories.

PCRA Court Opinion, 12/7/15, at 2-3.

     Appellant timely appealed, and this Court affirmed his judgment of

sentence on February 17, 2010.     Commonwealth v. Rayford, 998 EDA

2009, 996 A.2d 14 (Pa. Super. filed February 17, 2010). Appellant filed a

petition for allowance of appeal to the Pennsylvania Supreme Court on March

19, 2010, which was denied on September 16, 2010. Commonwealth v.

Rayford, 196 MAL 2010, 8 A.3d 344 (Pa. filed September 16, 2010).

Appellant did not file a writ for certiorari with the United States Supreme

Court.




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       On September 9, 2011, Appellant, pro se, filed his first PCRA petition.

PCRA Petition, 9/9/11. Counsel was appointed and was later permitted to

withdraw pursuant to Turner/Finley.1              Order, 12/27/11.    Appellant’s first

PCRA petition was dismissed by order entered December 27, 2011. Order,

12/27/11.     On appeal, this Court dismissed Appellant’s appeal due to his

failure to file a brief. Order, 374 EDA 2012, 7/23/12.

       On October 27, 2014, Appellant, pro se, filed a second PCRA petition.

PCRA Petition, 10/27/14. On December 11, 2014, Appellant’s second PCRA

petition was dismissed as untimely. Order, 12/11/14.

       On August 24, 2015, Appellant, pro se, filed the instant, third PCRA

petition. PCRA Petition, 8/24/15. On September 30, 2015, the PCRA court

dismissed the petition as untimely.              Order, 9/30/15.     Appellant timely

appealed. Appellant was directed to file a Pa.R.A.P. 1925(b) statement, and

he timely complied.         The PCRA court prepared an opinion pursuant to

Pa.R.A.P. 1925(a).

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).              The PCRA court’s findings will not be
____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

       A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).         A judgment of sentence

“becomes final at the conclusion of direct review, including discretionary

review in the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.”          42

Pa.C.S. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

____________________________________________


2
    The exceptions to the timeliness requirement are:

       (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;

(Footnote Continued Next Page)


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Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

      Our review of the record reflects that Appellant was sentenced on

March 2, 2009.3        As noted, Appellant filed a direct appeal, and this Court

affirmed   Appellant’s       judgment     of     sentence   on   February   17,   2010.

Appellant’s petition for allowance of appeal was denied on September 16,

2010. Appellant did not file a petition for writ of certiorari.

      Accordingly, Appellant’s judgment of sentence became final on

December 15, 2010, when the time for seeking certiorari from the United




                       _______________________
(Footnote Continued)

      (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), (ii), and (iii).
3
  As noted, Appellant was originally sentenced on October 24, 2008. After
the sentencing court’s consideration of his post-sentence motion, his
sentence was modified on March 2, 2009.




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States Supreme Court expired.4            See 42 Pa.C.S. § 9545(b)(3) (providing

that “a judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.”).    Therefore, Appellant had to file the current PCRA petition by

December 15, 2011, in order for it to be timely. Appellant did not file the

instant PCRA petition until August 24, 2015. Thus, Appellant’s instant PCRA

petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted.     42 Pa.C.S. § 9545(b)(2).           This is true despite the fact that

Appellant’s petition presents a challenge to the legality of his sentence. See

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 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.”).
____________________________________________


4
   Appellant had ninety days from the date of the Pennsylvania Supreme
Court’s decision on direct appeal to file a petition for a writ of certiorari with
the United States Supreme Court. Commonwealth v. Hackett, 956 A.2d
978, 980 n.4 (Pa. 2008); United States Supreme Court Rule 13.



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      In his brief, Appellant asserts that he was sentenced illegally and that

Alleyne v. United States, 133 S.Ct. 2151 (2013), and related recent

Pennsylvania case law, is applicable to his case.      Appellant’s Brief at 9

(unnumbered). Appellant asserts that “[s]ince the Appellant was sentenced

under the mandatory minimum statute, which has since been ruled

unconstitutional, the Appellant is serving an illegal sentence. Therefore, his

judgment of sentence must be vacated.”        Id. at 10.    Thus, Appellant’s

argument may be characterized as an attempt to assert the “new

constitutional right” exception to the PCRA time-bar based on Alleyne v.

United States, 133 S.Ct. 2151 (2013).

      In Alleyne, the Supreme Court held that the constitutional jury
      trial right requires any fact, other than a prior conviction, that
      triggers a mandatory minimum sentence to be proven beyond a
      reasonable doubt before the finder of fact.        Alleyne is an
      application of the Court’s prior pronouncement in Apprendi v.
      New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
      (2000), which ruled that any fact that increases a maximum
      sentence must be found by the factfinder beyond a reasonable
      doubt or admitted by the defendant during his guilty plea. In
      Alleyne, the United States Supreme Court expressly overruled
      Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
      L.Ed.2d 524 (2002), which held that a fact that involves a
      mandatory minimum sentence does not implicate jury trial
      rights.     Alleyne also implicitly abrogated McMillan v.
      Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67
      (1986), which withstood an Apprendi attack in the Harris
      decision.

           In   Commonwealth v. Newman,                99  A.3d   86
      (Pa.Super.2014) (relying upon Commonwealth v. Watley, 81
      A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that
      Alleyne will be applied to cases pending on direct appeal when
      Alleyne was issued.


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Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)

(emphasis added).

     While this Court has held that Alleyne applies to cases that were on

direct appeal when Alleyne was issued, we have declined to construe that

decision as applying retroactively to cases in which the judgment of

sentence has become final.

     In concluding Alleyne does not satisfy the new retroactive
     constitutional right exception to the PCRA’s one year time bar,
     42 Pa.C.S. § 9545(b)(1)(iii), the [Commonwealth v. Miller,
     102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:

           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 Appellant’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.

     Id. at 995 (citations omitted) (emphasis supplied).

Commonwealth v. Ruiz, 131 A.3d. 54, 58 (Pa. Super. 2015) (emphasis in

original). Indeed, our Supreme Court recently held that “Alleyne does not

apply retroactively to cases pending on collateral review.” Commonwealth

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

     As noted, Appellant’s judgment of sentence became final on December

15, 2010. Alleyne was decided on June 17, 2013. Alleyne, 133 S.Ct. at

2151. Appellant’s judgment of sentence was finalized years before Alleyne

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was decided. Therefore, Appellant’s PCRA petition does not qualify for the

new constitutional-right exception to the PCRA time-bar under Alleyne.

       Additionally, we note that although a challenge based on Alleyne does

implicate the legality of a sentence, “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.” Miller, 102 A.3d at 995-996. Thus,

the PCRA court properly dismissed Appellant’s instant PCRA petition as

untimely. It was filed beyond the one-year general deadline, and Appellant

cannot rely on Alleyne or its progeny to invoke the timeliness exception at

section 9545(b)(1)(iii).5

       Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.         See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).        Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.                  See

Commonwealth           v.   Bennett,      930    A.2d   1264,   1267   (Pa.   2007)

____________________________________________


5
  We also note that to the extent Appellant argues in his petition that the
PCRA one-year time-bar does not apply in this case because Alleyne is
“newly-discovered evidence,” PCRA petition, 8/24/15, at 3, this Court has
ruled that judicial decisions are not facts for purposes of 42 Pa.C.S. §
9545(b)(1)(ii). See Cintora, 69 A.3d at 763 (“a judicial opinion does not
qualify as a previously unknown ‘fact’ capable of triggering the timeliness
exception set forth in section 9545(b)(1)(ii) of the PCRA.”).



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(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2016




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