J-S49018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JASON OCASIO-CAMPBELL,

                            Appellant                No. 3674 EDA 2015


              Appeal from the PCRA Order of November 12, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003786-2007
                            CP-15-CR-0003788-2007
                            CP-15-CR-0003803-2007


BEFORE: PANELLA and OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                               FILED JULY 19, 2016

       Appellant, Jason Ocasio-Campbell, appeals pro se from the order

entered on November 12, 2015, dismissing his second petition filed pursuant

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

affirm.

       On April 11, 2008, Appellant pleaded guilty to two counts of robbery,

two counts of conspiracy to commit robbery, possession of an instrument of

crime, and theft by unlawful taking or disposition.1 On September 23, 2008,

the trial court sentenced Appellant to serve an aggregate term of 14 to 28

____________________________________________


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 907, and 3921(a), respectively.




*Former Justice specially assigned to the Superior Court.
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years in prison, followed by five years of probation. Appellant’s aggregate

prison sentence included two consecutive mandatory minimum terms of five

to ten years in prison, pursuant to 42 Pa.C.S.A. § 9712, for visibly

possessing a firearm during the robbery.

      Following the nunc pro tunc restoration of Appellant’s direct appeal

rights, we affirmed Appellant’s judgment of sentence on December 1, 2010,

and the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on June 7, 2011.           Commonwealth v. Ocasio-

Campbell, 23 A.3d 563 (Pa. Super. 2010) (unpublished memorandum) at 1-

10, appeal denied, 23 A.3d 541 (Pa. 2011). Appellant did not file a petition

for writ of certiorari to the United States Supreme Court.

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

constituted Appellant’s first PCRA petition. See Commonwealth v. Turner,

73 A.3d 1283, 1286 (Pa. Super. 2013) (“when a PCRA petitioner’s direct

appeal rights are reinstated nunc pro tunc in his first PCRA petition, a

subsequent PCRA petition will be considered a first PCRA petition for

timeliness purposes”).    The PCRA court appointed counsel to represent

Appellant and, on February 9, 2015, the PCRA court dismissed Appellant’s

PCRA petition without holding a hearing. Appellant did not file a notice of

appeal from the PCRA court’s order.

      On July 6, 2015, Appellant filed the current PCRA petition, which

constitutes his second petition for post-conviction collateral relief.   Within


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this petition, Appellant claims that he is entitled to relief because he was

sentenced to two separate mandatory minimum terms of imprisonment

under     42   Pa.C.S.A.   § 9712   –   and   Section   9712   is   now   wholly

unconstitutional in light of the United States Supreme Court’s opinion in

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013) and this

Court’s opinion in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en banc).       See Appellant’s Second PCRA Petition, 7/6/15, at 3.

Further, even though Appellant (apparently) understood that his petition was

facially untimely, Appellant claims that his petition satisfied the “newly

recognized constitutional right” exception to the PCRA’s one-year time-bar.

See id. The PCRA court dismissed the petition on November 12, 2015. This

appeal followed.

        Appellant presents the following issue for review:

          As the Pennsylvania Superior and Supreme Courts have
          found Section 9712 to be facially unconstitutional in its
          entirety, is [] Appellant entitled to relief from his illegal
          sentence as the statute has been unconstitutional from the
          date of its passage and ineffective for any purpose?

Appellant’s Brief at 5.

        “As a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.”    Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014).




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      Before this Court can address the substance of Appellant’s claim, we

must determine if this petition is timely.


        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final.    A judgment of sentence becomes final at
        the conclusion of direct review . . . or at the expiration of
        time for seeking review.

                                      ...

        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.A. § 9545(b)(1)(i), (ii), and (iii), are
        met. A petition invoking one of these exceptions must be
        filed within [60] days of the date the claim could first have
        been presented. 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 [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some

internal citations omitted) (internal quotations omitted).

      In the present case, the PCRA court found Appellant’s petition to be

untimely filed. Trial Court Order, 11/12/15, at 1 n.1. We agree. Appellant’s

sentence   became    final   on   September   6,   2011,   91   days   after   the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal, and Appellant’s time for filing a petition for writ of certiorari to the

United States Supreme Court expired.         See 42 Pa.C.S. § 9545(b)(3) (“A

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States . . . , or at



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the expiration of time for seeking the review”); see also U.S. Sup. Ct. R.

13.1. The PCRA explicitly requires that a petition be filed “within one year of

the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). As such,

Appellant’s petition is patently untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.      See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements

of the relied-upon exception).

      Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

        (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:

                                     ...

            (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.

                                     ...

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

42 Pa.C.S.A. § 9545(b).


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      As our Supreme Court explained:

        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 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. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted). Moreover, since the plain statutory language

of section 9545 demands that the PCRA petition “allege” all elements of the

statutory exception, it is clear that – to properly invoke the “newly

recognized constitutional right” exception – the petitioner must plead each of

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

      Within Appellant’s second PCRA petition, Appellant claims that his

sentence is illegal because he was sentenced to a mandatory minimum term

of incarceration under 42 Pa.C.S.A. § 9712 and, in Alleyne, the United

States Supreme Court effectively rendered Section 9712 unconstitutional.

      This claim immediately fails, as Appellant did not raise his Alleyne

claim “within 60 days of the date the claim could have been presented.” 42

Pa.C.S.A. § 9545(b)(2). Rather, the first time Appellant raised his Alleyne


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claim was in his July 6, 2015 PCRA Petition – which was over two years after

the United States Supreme Court decided Alleyne.2 See Appellant’s Second

PCRA Petition, 7/6/15, at 3.         Thus, Appellant failed to properly plead the

newly-recognized constitutional right exception to the PCRA’s one-year time-

bar. See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007)

(“[w]ith regard to [the newly-]recognized constitutional right [exception], . .

. the [60-]day period begins to run upon the date of the underlying judicial

decision”).

        Since Appellant did not attempt to plead any other exception to the

time-bar, we conclude that Appellant’s petition is time-barred and that our

“courts are without jurisdiction to offer [Appellant] any form of relief.”3

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

Therefore, we affirm the PCRA court’s order dismissing Appellant’s second

PCRA petition without a hearing.

        Order affirmed.




____________________________________________


2
    The United States Supreme Court decided Alleyne on June 17, 2013.
3
  To the extent Appellant claims that his illegal sentencing claim is non-
waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[a]lthough 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.” Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (emphasis added).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2016




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