J-S61010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                             Appellee

                       v.

FRANK LEE

                             Appellant                     No. 3023 EDA 2016


                    Appeal from the PCRA Order August 23, 2016
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0206981-1983


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED SEPTEMBER 19, 2017

        Frank Lee appeals pro se and nunc pro tunc from the trial court’s order

reinstating his collateral appeal rights and denying all other claims raised in

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. § 9541-9545. After careful review, we affirm.

        On January 6, 1984, Lee was convicted by a jury of two counts each of

rape and robbery, and one count of possessing an instrument of crime (PIC)

and related offenses.          The charges stemmed from Lee and two co-

defendants brutally raping and robbing two women at gunpoint in 1982. The

trial   court    sentenced    Lee    to   an   aggregate   term   of   25-50   years’

imprisonment.       Lee filed post-sentence motions and a direct appeal that
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*
    Retired Senior Judge assigned to the Superior Court.
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were both denied.    Over the ensuing years, Lee has filed several PCRA

petitions and collateral appeals.   In April 2010, Lee wrote to the court

inquiring about the status of a PCRA petition he had filed in 2008. On April

14, 2010, the court replied to his letter, indicating that it had denied the

2008 petition on November 21, 2008 and that:

      If [he] did not receive a copy of the Judge[’]s order of
      dismissal/denial [he] must write directly to that Judge for a
      copy of the order . . . [and i]f [his] case was concluded more
      than thirty (30) days ago and [he] wish[es] to file an appeal of
      the decision[, he] must be granted reinstatement of [his]
      appellate rights from that judge.

Post-Trial Unit Letter, 4/14/10. On October 16, 2014, Lee filed a “Motion for

Post-Conviction Relief and/or Request for Alternative relief Under the Writ of

Habeas Corpus pursuant to 42 Pa.C.S. § 6501, et seq.” In that motion Lee

claimed that application of a mandatory minimum statute rendered his

sentence illegal. In response to that motion, on August 23, 2016, the trial

court reinstated Lee’s collateral appeal rights nunc pro tunc and denied all

other PCRA claims. This appeal follows, in which Lee presents the following

issue for our consideration: Did the trial court judge abuse his discretion by

applying 42 Pa.C.S. § 9712 to [Lee’s] sentence?

      Our standard of review is well established. “In reviewing the denial of

PCRA relief, we examine whether the PCRA court's determination ‘is

supported by the record and free of legal error.’”       Commonwealth v.

Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.

Rainey, 928 A.2d 215, 223 (Pa. 2007)).

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        Instantly, the PCRA court determined that Lee’s petition was untimely

filed. The PCRA requires that any petition must be filed within one year of

the date the judgment becomes final.             42 Pa.C.S.A. § 9545(b)(1).   “A

judgment becomes final at the conclusion of direct review . . . or at the

expiration of time for seeking the review.”          42 Pa.C.S.A. § 9545(b)(3).

Moreover, it is important to note that "although illegal sentencing issues

cannot be waived, they still must be presented in a timely PCRA petition."

Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013) (emphasis

added).

        Lee was sentenced on December 12, 1984, and our Court affirmed his

judgment of sentence on April 9, 1987.            Accordingly, Lee’s judgment of

sentence became final after the time expired for him to file a petition for

allowance of appeal with the Pennsylvania Supreme Court, or on May 9,

1987. See Pa.R.A.P. 1113. Thus, Lee had one year from that date, or until

May 9, 1988, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).

He did not file the instant petition until April 26, 2007,1 more than ten years

late.    Accordingly, the PCRA court had no jurisdiction to entertain Lee’s

petition unless he established one of the exceptions to the jurisdictional time

bar.




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1
    The court specifically granted a collateral appeal nunc pro tunc



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       A PCRA court will entertain an otherwise untimely petition if the

petitioner pleads and proves that: (1) the failure to raise a timely claim was

the result of interference by government officials; (2) 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 (3) the right asserted

is a constitutional right that has been recognized by the United States

Supreme Court or the Supreme Court of Pennsylvania after the one-year

time period, and has been held to apply retroactively.2        42 Pa.C.S. §

9545(b)(1)(i), (ii), and (iii). Any petition invoking one of these exceptions

must be filed within 60 days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).

       Lee contends that he was sentenced under an unconstitutional

mandatory minimum statute, 42 Pa.C.S. § 9712(a), and that his sentence

should be vacated as illegal pursuant to Alleyne v. United States, 133 S.

Ct. 2151 (2013). In Alleyne, the Court held that an element of an offense

that increased the mandatory minimum sentence must be found by a jury

beyond a reasonable doubt. 133 S. Ct. at 2155.

       In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),

our Court held that the section 9712(a)’s mandatory minimum sentencing

provision, relating to possession of a weapon during a crime of violence, was

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2
  Lee’s PCRA petition references the after-recognized constitutional right
exception to the PCRA timing requirements in 42 Pa.C.S. § 9545(b)(1)(iii).



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unconstitutional     under     Alleyne.         However,   in   Commonwealth        v.

Washington, 142 A.3d 810 (Pa. 2016), the Supreme Court of Pennsylvania

held that although Alleyne establishes a new rule of federal constitutional

law, it does not apply retroactively to cases pending on collateral review.

Id. at 820.     Moreover, pursuant to Commonwealth v. Riggle, 119 A.3d

1058,    1064    (Pa.    Super.    2015),      Alleyne   does   not   meet   the   new

constitutional right exception to the PCRA time bar and, as such, Alleyne

will only be applied to cases pending on direct appeal when Alleyne was

issued. Here, Alleyne was issued twenty-eight years after Lee’s sentence

could have been directly appealed. Accordingly, Lee is not entitled to relief;

the trial court lacked jurisdiction to consider his petition and properly

dismissed it as untimely. Taylor, supra.

        Order affirmed.3

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017

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3
   To the extent that Lee raises additional grounds in his appellate brief that
were not included in his petition, they have either been waived, previously
litigated or are not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(2),
(3).



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