J-S30018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA


                       v.

RICARDO GATES

                            Appellant                      No. 1818 MDA 2016


                 Appeal from the PCRA Order October 11, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000768-1993


BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.

JUDGMENT ORDER BY RANSOM, J.:                               FILED JULY 26, 2017

        Appellant, Ricardo Gates, appeals from the order entered October 11,

2016, denying his petition for collateral relief filed under the Post Conviction

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

        In October 1993, a jury convicted Appellant of aggravated assault,

recklessly endangering another person, and carrying a firearm without a

license.1 On May 12, 1994, Appellant received an aggregate sentence of one

hundred two to two hundred forty months of incarceration.                He timely

appealed,     and     his   judgment       of   sentence   was   affirmed.     See

Commonwealth v. Gates, 657 A.2d 49 (Pa. Super. 1994). Appellant did

not pursue review in the Pennsylvania Supreme Court.

____________________________________________


1
    See 18 Pa.C.S. §§ 2702(a)(1), 2705, and 6106(a), respectively.
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       On March 10, 2016, Appellant pro se untimely filed a petition seeking

PCRA relief.2     Counsel was appointed to represent Appellant and filed a

Turner/Finley letter.3        The PCRA court gave Appellant notice pursuant to

Pa.R.Crim.P. 907 that his petition would be dismissed within twenty days,

and granted counsel’s petition to withdraw. Appellant filed a response to the

court’s notice.       On October 11, 2016, the court formally dismissed

Appellant’s petition.

       Appellant timely appealed.         On November 7, 2016, the PCRA court

ordered Appellant to file a statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Accordingly, Appellant’s statement was due

November 28, 2016.

       On December 9, 2016, the court issued a memorandum statement

finding Appellant’s issues waived for purposes of appeal due to his failure to

file a concise statement.       See Memorandum Statement, 12/9/16 (citing in

support Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (holding that

issues not raised in a Rule 1925(b) statement are waived)). That same day,

the court received from Appellant a statement of errors complained of on
____________________________________________


2
  Appellant’s judgment of sentence became final on January 22, 1995, at the
expiration of his thirty days to petition for allowance of appeal to the
Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review). Appellant’s current petition, filed March
2016, is almost twenty one years late.
3
   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).



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appeal, which Appellant had dated December 2, 2016.             The statement

requested the court accept Appellant’s late filing due to holidays, lockdowns,

and library closures.

       Where a trial court orders an appellant to file a Pa.R.A.P. 1925(b)

statement, the appellant must comply in a timely manner. Commonwealth

v. Castillo, 888 A.2d 775, 780 (Pa. 2005). Failure to comply with a Rule

1925(b) order will result in waiver of all issues raised on appeal. Id.; see

also Greater Erie Indus. Development Corp. v. Presque Isle Downs,

Inc., 88 A.3d 222, 225 (Pa. Super. 2014).

       Further, a pro se prisoner’s petition for review must be considered filed

for purposes of Pa.R.A.P. 903 when the appeal is deposited with prison

officials or placed in the prison mailbox.       See Commonwealth v. Jones,

700 A.2d 423, 426 (Pa. 1997); see also Smith v. Pennsylvania Board of

Probation and Parole, 683 A.2d 278, 279-281 (Pa. 1996).                   Here,

Appellant’s statement was dated December 2, 2016, four days after the

expiration of his time to file his concise statement. Accordingly, Appellant

does not qualify for the mailbox rule exception.

       Due to Appellant’s failure to timely submit a Rule 1925(b) statement,

we conclude that any issues he wished to raise have been waived.4          See

Castillo, 888 A.2d at 780.

____________________________________________


4
  Additionally we note that even had we not found Appellant’s issues waived
for purposes of appeal, he is not entitled to PCRA relief. This Court does not
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




                       _______________________
(Footnote Continued)

have jurisdiction to review the dismissal of an untimely PCRA unless the
petitioner pleads and proves a timeliness exception. See Commonwealth
v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007).

Appellant attempts to circumvent the time bar by pleading that he is entitled
to a constitutional right which has been held to apply retroactively, namely,
because he was sentenced under a mandatory minimum statute. See
Appellant’s Brief at 7-12. He avers that the decision in Alleyne v. United
States, 135 S. Ct. 1251 (2013), should be applied retroactively. Id.

However, the Pennsylvania Supreme Court has determined that the rule
announced in Alleyne was neither a substantive nor a “watershed”
procedural rule and, therefore, did not apply retroactively to cases pending
on collateral review. Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016), see also Commonwealth v. Riggle, 119 A.3d 1058, 1064-67
(Pa. Super. 2015) (same). Accordingly, we decline to reach the merits of his
claims. Bennett, 930 A.2d at 1267.



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