J-A18044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ALEXANDER WILLIAMS,

                            Appellant                   No. 212 MDA 2016


                 Appeal from the PCRA Order January 12, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002813-2009

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED JULY 25, 2016

       Appellant Alexander Williams appeals pro se from the Order entered in

the Court of Common Pleas of Berks County on January 12, 2016, denying

as untimely his petition filed pursuant to the Post Conviction Relief Act

(PCRA).1    Upon our review of the record, we affirm.

       On September 30, 2010, Appellant entered an open guilty plea to four

counts of delivery of a controlled substance (cocaine) and one count each of

possession with intent to deliver, possession of a firearm, unlawful body

armor and receiving stolen properly.2 Appellant was sentenced to an


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1
 42 Pa.C.S.A. §§ 9541-9546.
2
  35 P.S. 780-113(a)(30); 35 P.S. 780-113(a)(30); 18 Pa.C.S.A. §
6105(a)(1); 18 Pa.C.S.A. § 907(c); 18 Pa.C.S.A. § 3925(a), respectively.
Appellant’s drug transactions took place within 1,000 feet of Southern Middle
School in Reading.



*Former Justice specially assigned to the Superior Court.
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aggregate term of ten years to twenty years in prison with 333 days’ credit

for time served on September 30, 2010.3 While no post-sentence motions

or a direct appeal was filed, on March 9, 2011, Appellant filed a counseled

PCRA petition in which he successfully alleged the ineffectiveness of plea and

sentencing counsel for failing to file post-sentence motions and a direct

appeal on his behalf. Thereafter, on May 9, 2011, the trial court reinstated

Appellant’s post-sentence motion rights nunc pro tunc.

       Appellant filed his nunc pro tunc Post-Sentence Motion to Modify and

Reduce Sentence and after a hearing on July 1, 2011, the trial court denied

the same.      Appellant filed a direct appeal on July 7, 2011, wherein he

challenged the discretionary aspects of his sentence. This Court denied his

appeal in an unpublished memorandum decision filed on March 20, 2012.

       Appellant filed a pro se PCRA petition on August 3, 2015.      Counsel

was appointed and filed a Turner/Finley4 “no-merit” letter, and a petition

to withdraw as counsel on November 24, 2015.             After conducting an

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3
  A five year mandatory sentence applied to Count Two due to the weight of
the drugs and Appellant’s prior drug conviction. A five year gun and drug
mandatory sentence applied to Count Three, and a five year weight
mandatory applied to Counts Four and Five. A five year gun and drug
mandatory applied to Count Seven. See Trial Court Opinion, filed 9/8/11, at
1; Sentencing Order, filed 9/30/10. The Commonwealth dismissed sixteen
counts that had been filed against Appellant. Also, in light of his cooperation
in an unrelated murder case, it was agreed that Appellant would not be
prosecuted federally.
4
   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).



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independent review of the record and filing a notice of intention to dismiss

Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 on

December 11, 2015, the PCRA court granted counsel’s petition to withdraw

and dismissed the PCRA petition on January 12, 2016.5         Appellant filed a

timely, pro se, appeal from that decision on February 1, 2016, and the PCRA

court directed him to file a concise statement of errors on appeal pursuant to

Pa.R.A.P. 1925(b).        Appellant complied and now presents the following

questions for our review:


       1.)    Did the PCRA [c]ourt err in dismissing Appellant’s PCRA
       petition by failing to apply Alleyne v. United States, 133 S.Ct.
       2151 (2013), AND Commonwealth v. Hopkins, 117 A.3d 247 (Pa.
       2015), retroactively?

       2.)    Did the PCRA Court err in dismissing Appellant’s PCRA
       petition as untimely where petition was filed within sixty days of
       the decision in Commonwealth v. Hopkins, which applied the
       new rule announced in Alleyne v. United States[?]

Brief for Appellant at 4.

       Initially, we must determine whether Appellant’s PCRA petition was

timely filed. See Commonwealth v. Hutchins, 760 A.2d 50 (Pa. Super.

2000). “Our standard of review of the denial of PCRA relief is clear; we are
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5
  Appellant does not challenge the PCRA court's order allowing counsel to
withdraw, nor does he raise any issue with his proceeding pro se on appeal.
We shall not raise sua sponte the propriety of the trial court's order granting
counsel's motion to withdraw. See Commonwealth v. Pitts, 603 Pa. 1, 981
A .2d 875 (2009).




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limited to determining whether the PCRA court’s findings are supported by

the record and without legal error.”   Commonwealth v. Wojtaszek, 951

A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition. Commonwealth v. Robinson, 837 A.2d 1157

(Pa. 2003).   The most recent amendments to the PCRA, effective January

19, 1996, provide that a PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 at the expiration of the time for seeking review.”         42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.   42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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


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      (iii)     the right asserted is a constitutional right that was
                recognized by the Supreme Court of Pennsylvania after
                the time period provide in this section and has been
                held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).    “We emphasize that it is the petitioner

who bears the burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa.

2008) (citations omitted).

      Instantly, Appellant was sentenced on September 30, 2010, and this

Court affirmed his judgment of sentence on March 20, 2012. Appellant did

not file a petition for allowance of appeal with the Supreme Court.

Therefore, Appellant’s judgment of sentence became final thirty days

thereafter on April 20, 2012. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a

judgment 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 at the expiration of time for seeking the

review[ ]”).    In Appellant’s case, a timely first petition for post-conviction

relief would have had to have been filed by April 20, 2013. Appellant filed

the instant PCRA petition on August 3, 2015; therefore, it is patently

untimely.      As such, the PCRA court could not address the merits of

Appellant’s petition unless a timeliness exception applies.

      Appellant makes no explicit attempt to avail himself of a particular

timeliness exception in his first argument but rather argues his petition is


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not time-barred because he is entitled to retroactive relief under Alleyne v.

United States, 133 S.Ct. 2151 (2013) (holding that “facts that increase

mandatory minimum sentences must be submitted to the jury” and found

beyond a reasonable doubt). Appellant posits that in light of Alleyne “the

mandatory minimum statutes" under which he had been sentenced are

unconstitutional and the Commonwealth is devoid of any authority to

continue to enforce his aggregate sentence, as it violates a “substantive

rule.”     Appellant urges that this Court is “constitutionally required to

retroactively apply the new rule announced in Alleyne [sic].”        Brief for

Appellant at 9-11.

         In his second issue, Appellant further maintains that as he filed his

PCRA petition within sixty days of the decision in Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015), it should be deemed to be timely filed.6

Id. at 11.        Appellant does not specifically indicate how Hopkins is

determinative herein but rather maintains, inter alia, that the exception to

the PCRA time-bar set forth in 42 Pa.C.S.A. 9545(b)(1)(iii) applies, in that

“[t]he new rule announced in Alleyne is both a substantive rule, as well as a

watershed procedural rule,” and that the “‘60 day time limitation’ is



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6
  In Hopkins, our Supreme Court held that 18 Pa.C.S.A. § 6317 which
imposed a mandatory minimum sentence for a drug sale or PWID within
1,000 feet of a school was unconstitutional.



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unconstitutional, or in the very least, inapplicable in the instant matter.’”

Brief for Appellant at 11-12.

      As long as this Court has jurisdiction over a matter, a legality of

sentencing issue is reviewable and cannot be waived. Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa.Super. 2007).           However, a legality of

sentencing issue must be raised in a timely filed PCRA petition.      See 42

Pa.C.S.A. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999) (holding that “[a]lthough a 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”). As such, an appellant must present an

illegal sentencing claim in a timely PCRA petition over which this Court has

jurisdiction. See Fahy, supra, at 223, and Commonwealth v. Miller, 102

A.3d 988, 994 (Pa.Super. 2014) (observing Alleyne does not invalidate a

mandatory minimum sentence challenged in an untimely PCRA petition).

      The United States Supreme Court decided Alleyne on June 17, 2013;

thus, in order to invoke the “constitutional right” exception under 42

Pa.C.S.A. § 9545(b)(1)(iii), Appellant needed to submit his PCRA petition

within sixty days of June 17, 2013.    See Commonwealth v. Boyd, 923

A.2d 513, 517 (Pa.Super. 2007) (providing that the sixty day time period

begins to run upon the date of the underlying judicial decision). Appellant

filed the instant PCRA petition on August 3, 2015, well beyond the sixty day

deadline of August 17, 2013. After concluding that Appellant’s PCRA petition


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was untimely and that no exception to the PCRA’s time bar applied, the

PCRA court properly dismissed Appellant’s petition as untimely on January

12, 2016.

      Even assuming that Alleyne did announce a new constitutional right,

neither our Supreme Court nor the United States Supreme Court has held

that Alleyne is to be applied retroactively to cases in which the judgment of

sentence had become final, and this Court has recognized that a new rule of

constitutional law is applied retroactively to cases on collateral review only if

the United States Supreme Court or our Supreme Court specifically holds it

to be retroactively applicable to those cases. Commonwealth v. Phillips,

31 A.3d 317, 320 (Pa.Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d

1059 (2012). Moreover, while this Court recently held in Commonwealth

v. Ciccone, ___ A.3d ____, 2016 PA Super 149, *20-21 (en banc) (filed

July 12, 2016) that an appellant is entitled to relief when he challenges the

legality of his sentence pursuant to Alleyne in a timely PCRA petition, that

holding is not dispositive herein, for Appellant’s PCRA was untimely filed. In

this regard, as previously noted, in Miller, supra, this Court observed that

Alleyne does not invalidate a mandatory minimum sentence when a

challenge thereto is presented in an untimely PCRA petition.          See also

Fahy, supra.

      Appellant next avers that as he filed his PCRA petition within sixty

days of our Supreme Court’s decision in Hopkins, supra, which in turn


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applied Alleyne, the PCRA court erred in dismissing his petition as untimely.

Appellant is correct that he filed his PCRA petition within sixty days of June

15, 2015, the date upon which our Supreme Court held that under Alleyne

the mandatory minimum sentencing scheme set forth in 18 Pa.C.S. § 6317

(“Drug-free school zones”) is unconstitutional in its entirety, as certain

provisions of the statute do not adhere to Alleyne's rule and are not

severable from the remaining portions of the statute. Hopkins, 117 A.3d at

262. However, contrary to Appellant’s claim, the Hopkins decision did not

announce a “new rule,” but rather simply assessed the validity of Section

6317 under Alleyne and concluded that particular mandatory minimum

sentencing statute is unconstitutional. Nevertheless, even if Hopkins had

announced a new rule, neither our Supreme Court nor the United States

Supreme Court has held that Hopkins applies retroactively to post

conviction petitioners such as Appellant. Consequently, to the extent

Appellant attempts to rely on Hopkins, he has not satisfied the timeliness

exception of Section 9545(b)(1)(iii).

      Accordingly, for the aforementioned reasons, we conclude that

Appellant has not proven the applicability of any exception to the PCRA’s

timeliness requirements. Thus, the PCRA court clacked jurisdiction to

consider the merits of his claims and did not err when it denied his PCRA

petition.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2016




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