J-S92042-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
              Appellee                    :
                                          :
      v.                                  :
                                          :
RAYMONT MAURICE LEE,                      :
                                          :
              Appellant                   :   No. 1130 WDA 2016

               Appeal from the PCRA Order July 11, 2016
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0009538-2002

BEFORE:     SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED JANUARY 27, 2017

      Raymont Maurice Lee (Appellant) appeals pro se from the order

entered on July 11, 2016, which denied his fourth petition filed pursuant to

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

      A prior panel of this Court summarized the relevant factual history of

this matter as follows.

             On June 28, 2002, [Appellant] was arrested for criminal
      homicide. On January 29, 2004, during trial, a Commonwealth
      witness improperly commented on [Appellant’s] invocation of his
      constitutional right to counsel during interrogation. [Appellant]
      requested, and was granted, a mistrial. [Appellant’s] counsel and
      the Commonwealth negotiated a plea agreement pursuant to
      which [Appellant] would serve 15-30 years’ incarceration in
      exchange for pleading guilty to third-degree murder. On May 5,
      2004, the court accepted the plea agreement. [Appellant] did
      not file a direct appeal of his sentence.

             On April 25, 2005, [Appellant] timely filed his first PCRA
      petition. Counsel was appointed and filed an amended petition

* Retired Senior Judge assigned to the Superior Court.
J-S92042-16


      on May 22, 2006. In the amended petition, [Appellant] claimed
      his constitutional right to adequate counsel was violated when
      counsel failed to consult with him about filing a post-sentence
      motion or a direct appeal. He also claimed that he involuntarily
      pled guilty because counsel improperly instructed him to accept
      the plea agreement without fully investigating possible defenses.
      At the August 16, 2006 PCRA hearing, counsel testified that
      [Appellant] did not ask for an appeal or post-sentence motion,
      and that he fully investigated possible defenses and fully
      explained the plea bargain negotiations to [Appellant]. The PCRA
      court credited counsel’s testimony and dismissed the petition the
      following day, finding that [Appellant] voluntarily accepted the
      plea agreement and that counsel was effective.

            On August 18, 2006, [Appellant] filed a timely notice of
      appeal. This Court affirmed the PCRA court’s order on August 13,
      2007. Commonwealth v. Lee, 935 A.2d 15 (Pa. Super. 2007)
      (unpublished memorandum). [Appellant] filed a timely petition
      for allowance of appeal, which the Supreme Court denied on
      March 6, 2008. Commonwealth v. Lee, 944 A.2d 756 (Pa.
      2008).

             On June 19, 2012, [Appellant] filed his second PCRA
      petition pro se. On July 16, 2012, the PCRA court filed a notice
      of intention to dismiss because [Appellant’s] petition was
      untimely and raised a previously litigated issue. The petition was
      dismissed on August 31, 2012.

Commonwealth v. Lee, 82 A.3d 1080, at *1 (Pa. Super. filed July 26,

2013) (unpublished memorandum) (some citations omitted).            Appellant

timely filed a notice of appeal and, on July 26, 2013, this Court affirmed the

PCRA court’s order dismissing his second petition. Id. Appellant did not file

a petition for allowance of appeal to our Supreme Court.

      On April 15, 2015, Appellant filed a document entitled “Motion to

Vacate His Illegal/Unconstitutional Mandatory Minimum Sentence,” in which

                                    -2-
J-S92042-16


he argued that his sentence is illegal based on the United States Supreme

Court’s decision in Alleyne vs. United States, 530 US. 466 (2013). The

PCRA court treated this filing as Appellant’s third PCRA petition, 1 and on May

28, 2015, the PCRA court issued notice of its intent to dismiss without a

hearing pursuant to Rule of Criminal Procedure 907.          Appellant filed a

response on June 10, 2015, and on June 26, 2015, the PCRA court issued an

order dismissing Appellant’s petition. Appellant filed an appeal to this Court,

which was dismissed on January 6, 2016 due to Appellant’s failure to file a

brief. Commonwealth v. Lee, 1092 WDA 2015 (Pa. Super. filed January 6,

2016) (per curiam).

      On March 7, 2016, Appellant filed pro se a motion seeking to vacate

his judgment of sentence pursuant to Alleyne, which the PCRA court treated

as a fourth petition for collateral relief. On May 13, 2016, the PCRA court

issued notice of its intent to dismiss the petition and, on July 11, 2016,

Appellant’s petition was dismissed as untimely-filed. This appeal followed.




1
  “It is well-settled that the PCRA is intended to be the sole means of
achieving post-conviction relief…. Issues that are cognizable under the PCRA
must be raised in a timely PCRA petition[.]” Commonwealth v. Taylor, 65
A.3d 462, 465-66 (Pa. Super. 2013). Appellant’s Alleyne claim implicates
the legality of his sentence. This Court has held that claims challenging the
legality of a sentence are cognizable under the PCRA. See Commonwealth
v. Guthrie, 749 A.2d 502 (Pa. Super. 2000).


                                     -3-
J-S92042-16


      Appellant presents three issues for our review, all of which center on

his allegations that his sentence is illegal under Alleyne. Appellant’s Brief at

3.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the PCRA court’s rulings are supported by the evidence

of record and free of legal error. Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).      We will begin by addressing whether the

PCRA court correctly determined that Appellant untimely filed his petition.

      Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).      For purposes of the PCRA, a judgment of

sentence becomes final at the conclusion of direct review.          42 Pa.C.S.

§ 9545(b)(3). “The PCRA’s time restrictions are jurisdictional in nature.”

Chester, 895 A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither

this Court nor the trial court has jurisdiction over the petition. Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.’” Id. (quoting Commonwealth v. Lambert, 884 A.2d

848, 851 (Pa. 2005)). 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

                                     -4-
J-S92042-16


which no time-bar exception applies.” Commonwealth v. Miller, 102 A.3d

988, 995-96 (Pa. Super. 2014).

     Appellant’s judgment became final on June 5, 2004, when the time for

filing a direct appeal expired. He therefore had until June 5, 2005, in order

to file timely a PCRA petition.    Lee, 82 A.3d 1080, at *2; 42 Pa.C.S.

§ 9545(b)(1).

     Because Appellant untimely filed the PCRA petition at issue in March of

2016, he had the burden of pleading and offering to prove one of the

following exceptions:

     (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).   Moreover, “[a]ny petition invoking an exception

provided in [42 Pa.C.S. § 9545(b)(1)] shall be filed within 60 days of the

date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

     While his pro se filing does not specifically mention any of the

timeliness exceptions to the PCRA, he appears to argue that the Supreme
                                    -5-
J-S92042-16


Court’s decision in Alleyne is a new constitutional right that must be applied

retroactively, which would satisfy the exception at § 9545(b)(1)(iii).

Appellant’s Pro Se Motion, 3/7/2016.

      Appellant’s argument is unavailing. Our Supreme Court has affirmed

that “Alleyne does not apply retroactively to cases pending on collateral

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

Accordingly, Appellant has failed to establish the applicability of a timeliness

exception, and the PCRA court properly dismissed the petition for lack of

jurisdiction.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/27/2017




                                     -6-
J-S92042-16




              -7-
