J-S54043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
            v.                            :
                                          :
ROGER FAIR,                               :
                                          :
                   Appellant              :           No. 202 WDA 2016

                Appeal from the PCRA Order January 13, 2016
               in the Court of Common Pleas of Butler County,
              Criminal Division, No(s): CP-10-CR-0000480-2004

BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JUNE 30, 2016

      Roger Fair (“Fair”) appeals, pro se, from the Order dismissing his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On October 7, 2004, Fair entered a plea of nolo contendere for

multiple crimes. On December, 21, 2004, the trial court sentenced Fair to

an aggregate prison term of eighty-four to two-hundred forty months. Fair

did not file a direct appeal.

      On July 23, 2015, Fair filed the instant PCRA Petition, his first.   The

PCRA court appointed Fair counsel. Subsequently, Fair’s counsel filed a

Petition to Withdraw and a Turner/Finley1 “no-merit” letter.       The PCRA

court granted the Petition to Withdraw. On December 11, 2015, the PCRA

court entered a Pa.R.Crim.P. 907 Notice of Intent to Dismiss.     Thereafter,

1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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the PCRA court dismissed Fair’s PCRA Petition as patently untimely, after

which Fair filed a timely Notice of Appeal.

              We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court and
      the evidence of record. We will not disturb a PCRA court’s ruling
      if it is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Under the PCRA, a defendant must file any PCRA petition within one

year of the date that the judgment becomes final.                42 Pa.C.S.A.

§ 9545(b)(1). 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 the expiration of

time for seeking review.”       Id. § 9545(b)(3).      The PCRA’s timeliness

requirements are jurisdictional in nature, and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Fair’s judgment of sentence became final on January 20, 2005,

when the time to seek review with this Court expired. See Pa.R.A.P. 903(a).




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Fair had until January 20, 2006, to file a timely PCRA petition. Therefore,

Fair’s July 2015 PCRA Petition is facially untimely.

      However, in the event that a petition is not filed within the one-year

time frame, the PCRA provides three timeliness exceptions.               See 42

Pa.C.S.A. § 9545(b)(1)(i-iii).    Any PCRA petition invoking one of these

exceptions shall be filed within sixty days of the date the claim could have

been presented. See id. § 9545(b)(2).

      Here, Fair invokes the newly recognized constitutional right exception

based on the United States Supreme Court’s decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013). Brief for Appellant at 7, 9-14, 17, 19-20.

In Alleyne, the Supreme Court held that any fact that increases the

sentence for a given crime must be submitted to the jury and found beyond

a reasonable doubt.     Alleyne, 133 S. Ct. at 2155.        The Supreme Court

reasoned that a Sixth Amendment violation occurs where these sentence-

determinative facts are not submitted to a jury. Id. at 2156. Fair argues

that his mandatory minimum sentence under 42 Pa.C.S.A. § 9718 is,

therefore, illegal based upon Alleyne. Brief for Appellant at 10-14.

      Here, Fair filed the instant PCRA Petition on July, 23, 2015, well over

sixty days after June 17, 2013, the date that Alleyne was decided.2 See 42


2
  Fair claims that his Petition is timely because he filed it within sixty days of
the decision rendered in Commonwealth v. Hopkins, 117 A.3d 247 (Pa.
2015). However, Hopkins was decided on direct appeal, and did not state
that Alleyne applies retroactively. Thus, Fair’s reliance on Hopkins to
invoke the third exception is misplaced.

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Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513,

517 (Pa. Super. 2007) (stating that “[w]ith regard to an after-recognized

constitutional right, this Court has held that the sixty-day period begins to

run upon the date of the underlying judicial decision.”).

      Even       if    Fair   had   properly   invoked   the   exception   at   section

9545(b)(1)(iii), the rule established in Alleyne does not apply retroactively

where the judgment of sentence is final. See Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014) (stating that neither the United States

Supreme Court nor the Pennsylvania Supreme Court has held that Alleyne

applies retroactively where the judgment of sentence has become final); id.

(stating that although Alleyne claims implicate the legality of sentence,

courts cannot review a legality claim where the court does not have

jurisdiction).        Because Fair failed to meet the requirements of the third

timeliness exception, the PCRA court properly dismissed Fair’s PCRA

Petition.3

      Order affirmed.




3
  To the extent that Fair argues that Alleyne represents a newly-discovered
fact, we note that judicial decisions cannot “be considered newly-discovered
facts which could invoke the protections afforded by section 9545(b)(1)(ii).”
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2016




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