J-S33018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

THOMAS HENDERSON

                            Appellant               No. 1158 WDA 2015


                    Appeal from the PCRA Order July 7, 2015
                  In the Court of Common Pleas of Erie County
                Criminal Division at No(s): CP-25-0000306-2006


BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED MAY 12, 2016

       Appellant, Thomas Henderson, appeals pro se from the order entered

on July 27, 2015, dismissing his petition filed pursuant to the Post Conviction

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

       We briefly summarize the facts and procedural history of this case as

follows.    On March 9, 2006, the Commonwealth charged Appellant with

various crimes in relation to a knifepoint robbery at the Papermoon

Restaurant in Erie, Pennsylvania on January 20, 2006.       On April 6, 2006,

Appellant pled guilty to robbery, aggravated assault, recklessly endangering

another person (REAP), and possessing an instrument of crime (PIC). 1 On

June 6, 2006, Appellant appeared for sentencing. Upon preparing the pre-

____________________________________________


1
    18 Pa.C.S.A. §§ 3701(a)(1), 2702(a)(1), 2705, and 907, respectively.



*Former Justice specially assigned to the Superior Court.
J-S33018-16



sentence investigation report, “it was discovered that [Appellant] was a

recidivist offender who fell under the purview of 42 [Pa.C.S.A. §] 9714”

because this criminal episode represented Appellant’s third violent felony,

and, as a result, Appellant was “facing a [mandatory sentence of] 25 to 50

years” of incarceration. N.T., 6/6/2006, at 5-6. However, Appellant “was

not advised of that at the time of the entry of the plea[.]”       Id. at 6.

Accordingly, the trial court granted a continuance. At a sentencing hearing

held on July 20, 2006, the trial court gave Appellant the option to withdraw

his plea and stand trial or to allow Appellant to let his plea stand.   N.T.,

7/20/2006, at 9.    Appellant reaffirmed his plea.     Id.   The trial court

sentenced Appellant to a mandatory term of 25-50 years of incarceration for

robbery, an identical, concurrent term of imprisonment for aggravated

assault, and a concurrent term of 30 to 60 months of incarceration for PIC.

Id. at 24-25. Appellant’s REAP charge merged with his aggravated assault

conviction for sentencing purposes. Id. at 25. On July 25, 2006, Appellant

filed a motion to modify his sentence. The trial court denied relief by order

on July 26, 2006.

     In an opinion filed on December 11, 2007, a panel of this Court

vacated the aggravated assault sentence, but affirmed Appellant’s judgment

of sentence in all other respects. See Commonwealth v. Henderson, 938

A.2d 1063 (Pa. Super. 2007).      Because Appellant’s aggregate sentence

remained the same, the trial court’s sentencing scheme was not upset and

we did not remand the case for resentencing.     Id.   On July 2, 2008, the

                                    -2-
J-S33018-16



Pennsylvania Supreme Court denied further review.        Commonwealth v.

Henderson, 954 A.2d 575 (Pa. 2008).

       On December 3, 2008, Appellant filed a pro se PCRA petition.       On

December 5, 2008, the PCRA court appointed counsel to represent him. On

December 16, 2008, appointed counsel filed a petition for leave to withdraw

and a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc).       On December 17, 2008, the PCRA court gave Appellant

notice it intended to dismiss the PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907. By order entered on January 7, 2009, the PCRA court

dismissed Appellant’s PCRA petition and ordered him to retain private

counsel or proceed pro se. Appellant did not file an appeal.

       On April 30, 2015, Appellant filed a pro se motion to vacate illegal

sentence.     Citing the United States Supreme Court decision Alleyne v.

United States, 133 S. Ct. 2151 (2013), Appellant averred that his

mandatory minimum sentences under 42 Pa.C.S.A. § 9714, the recidivist

statute allowing for sentence enhancements for prior convictions for violent

crime, were unconstitutional. By order entered on May 12, 2015, the PCRA

court appointed counsel to represent Appellant and noted that it was

treating Appellant’s request for relief under the PCRA.2 On June 10, 2015,

____________________________________________


2
   Appellant does not challenge the PCRA court’s treatment of the filing
under the PCRA. Regardless, the PCRA court’s assessment was proper. It is
(Footnote Continued Next Page)


                                           -3-
J-S33018-16



appointed counsel filed a petition for leave to withdraw and a “no-merit”

letter pursuant to Turner/Finley. On June 12, 2015, the PCRA court gave

Appellant notice it intended to dismiss the PCRA petition without a hearing

pursuant to Pa.R.Crim.P. 907. By order entered on July 7, 2015, the PCRA

court dismissed Appellant’s PCRA petition. This timely appeal resulted.3
                       _______________________
(Footnote Continued)

well-settled that the PCRA is intended to be the sole means of achieving
post-conviction relief. Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.
Super. 2013), citing 42 Pa.C.S.A. § 9542.
3
  Appellant filed a pro se notice of appeal on July 27, 2015. On July 30,
2015, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on August 7, 2015, raising the following issues:

      1. Defendant[’]s sentence is illegal due to recent U.S.
         Supreme Court decisions, recent Pennsylvania Supreme
         Court decisions, and Pennsylvania Superior Court decisions;

      2. Defendant’s sentence is unconstitutional because of recent
         U.S. Supreme Court decisions, Pennsylvania Supreme Court
         decisions, and Pennsylvania Superior Court decisions.

Appellant’s Rule 1925(b) Statement, 8/7/2015, at 1. The PCRA court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on August 11, 2015 finding
Appellant’s claims “waived as vague.” PCRA Court Opinion, 8/11/2015, at 2
(unpaginated).

      We have previously determined:

         it is well-established that [an a]ppellant's concise statement
         must properly specify the error to be addressed on appeal.
         The Rule 1925(b) statement must be specific enough for the
         trial court to identify and address the issue an appellant
         wishes to raise on appeal. Further, this Court may find
         waiver where a concise statement is too vague. When a
         court has to guess what issues an appellant is appealing,
(Footnote Continued Next Page)


                                            -4-
J-S33018-16



      On appeal, Appellant presents the following issues, pro se, for our

review:

          1. Was Appellant sentenced under an unconstitutional
             statute in which the entire statute is not severable?

          2. Can Appellant be sentence[d] pursuant to 42 Pa.C.S.A.
             § 9714 as a third strike offender when he was never
             sentenced as a second strike offender?

Appellant’s Brief at 4 (complete capitalization omitted).

      In his first issue presented, Appellant “argues that pursuant to many

Pennsylvania mandatory minimum sentencing statutes from the Superior

Court and Supreme Court cases that 42 Pa.C.S.A. § 9714 should be declared

unconstitutional in it’s [sic] entirety in light of Alleyne[.]” Id. at 8.


                       _______________________
(Footnote Continued)

          that is not enough for meaningful review. A concise
          statement which is too vague to allow the court to identify
          the issues raised on appeal is the functional equivalent of no
          concise statement at all.

In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013) (internal citations,
quotations and original brackets omitted). Here, while Appellant’s Rule
1925(b) statement is, in fact, vague, in his underlying petition Appellant
specifically cited Alleyne, challenged the recidivist statute at Section 9714
as unconstitutional and argued that his sentence was illegal. Thus, the PCRA
court did not have to guess at the issues presented on appeal. We could
find waiver, but do not. In its Rule 1925(a) opinion, the PCRA court
addressed, in the alternative, the issue on the merits and determined
“Alleyne and its progeny do not apply retroactively on collateral review
where a judgment of sentence is final.” PCRA Court Opinion, 8/11/2015, at
2 (unpaginated) (citations omitted). However, as discussed infra, the PCRA
court lacked jurisdiction to entertain Appellant’s PCRA petition. “[I]t is
established that we can affirm the trial court on any valid basis.”
Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa. Super. 2008).



                                            -5-
J-S33018-16



      “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) (bracket omitted). “[A] court may entertain a challenge

to the legality of the sentence so long as the court has jurisdiction to hear

the claim. In the PCRA context, jurisdiction is tied to the filing of a timely

PCRA petition.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super.

2007). Stated differently, “although illegal sentencing issues cannot be

waived,     they   still   must       be   presented   in   a   timely   PCRA   petition.”

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (citation

omitted).

      This Court stated:

          The timeliness of a PCRA petition is a jurisdictional
          threshold and may not be disregarded in order to reach the
          merits of the claims raised in a PCRA petition that is
          untimely. Effective January 16, 1996, the PCRA was
          amended to require 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, 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.

                                  *           *             *

          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




                                             -6-
J-S33018-16


          [….] are met.4 A petition invoking one of these exceptions
          must be filed within sixty 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 sixty-day time
          frame[.]

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

citations and quotations omitted).

        Here,   Appellant    appealed      his   judgment   of   sentence   and   the

Pennsylvania Supreme Court denied review on July 2, 2008.                   Thus, his

judgment of sentence became final 90 days later, or on September 30,

2008, after the time for seeking certiorari with the United States Supreme

Court expired.       See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment


____________________________________________


4
    The exceptions to the timeliness requirement are:

          (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.A. § 9545(b)(1)(i-iii).



                                           -7-
J-S33018-16



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[.]”);

U.S.Sup.Ct.R. 13 (providing “a petition for a writ of certiorari seeking review

of a judgment of a lower state court that is subject to discretionary review

by the state court of last resort is timely when it is filed with the Clerk within

90 days after entry of the order denying discretionary review[.]”).

Appellant’s most recent PCRA petition, filed on April 30, 2015 is patently

untimely and Appellant did not assert any exceptions to the PCRA’s

jurisdictional timing requirement.      Hence, the trial court did not have

jurisdiction to entertain Appellant’s sentencing claim.

      Finally, we note that Appellant filed his most recent PCRA petition

raising his Alleyne claim on April 30, 2015, almost two years after Alleyne

was decided on June 17, 2013. Hence, he did not present the claim within

60 days of the date the claim could first have been presented. Moreover,

during the pendency of this appeal, our Court issued an opinion in the case

of Commonwealth v. Ruiz, 2015 WL 9632089 (Pa. Super. 2015), which

determined that Alleyne is not retroactive and cannot serve as the basis for

invoking the timeliness exception found at 42 Pa.C.S.A. § 9545(b)(1)(iii).

Thus, there was simply no jurisdiction to entertain Appellant’s claim.




                                      -8-
J-S33018-16



       Lastly, even if it is ultimately determined that Alleyne is entitled to

retroactive application to cases pending on collateral review,5 Appellant’s

precise claim is such that he cannot rely on the decision to invoke the

timeliness exception found at 42 Pa.C.S.A. § 9545(b)(i)(iii). Our Court has

recently determined, in the context of review on direct appeal:

         In Alleyne, the Supreme Court of the United States
         established that “[a]ny fact that, by law, increases the
         penalty for a crime is an ‘element’ that must be submitted
         to the jury and found beyond a reasonable doubt.” Alleyne,
         133 S.Ct. at 2155. However, the Supreme Court has
         recognized a narrow exception to this rule for prior
         convictions. Id. at 2160, n.1 (citing Almendarez–Torres
         v. United States, 118 S.Ct. 1219, (1998)). In
         Commonwealth v. Reid, 117 A.3d 777, 785 (Pa. Super.
         2015), this Court specifically found that Section 9714 is not
         rendered unconstitutional under Alleyne as it provides for
         mandatory minimum sentences based on prior convictions.
         Accordingly, as [a]ppellant was similarly sentenced to a
         mandatory minimum sentence under Section 9714 for his
         prior conviction of a crime of violence, Appellant's
         sentencing challenge has no merit.

Commonwealth v. Bragg, 2016 WL 490006, at *4 (Pa. Super. 2016).

Applying Bragg in the context of the PCRA, Alleyne offers no right upon

which Appellant can rely for purposes of invoking Section 9545(b)(i)(iii).

       Next, in his second issue presented, Appellant contends that the trial

court improperly determined that he was a third-strike offender under 42

Pa.C.S.A. § 9714. Appellant’s Brief at 12-17. Again, Appellant is presenting
____________________________________________


5
  See, e.g., Commonwealth v. Aybar, 1224 MDA 2014 (October 26, 2015)
(en banc review granted to address retroactive application of Alleyne in
timely filed PCRA petitions).



                                           -9-
J-S33018-16



an illegal sentencing claim in an untimely PCRA petition.   The PCRA court

lacked jurisdiction to address this claim.     Moreover, Appellant never

presented this issue in his PCRA petition or in his Rule 1925(b) statement.

Thus, Appellant also waived this claim. See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2016




                                   - 10 -
