J-S80036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

SHAUN RONALD APPLER

                            Appellant                     No. 582 MDA 2016


                    Appeal from the PCRA Order March 8, 2016
                in the Court of Common Pleas of Lancaster County
    Criminal Division at No(s): CP-36-CR-0001167-2012, CP-36-CR-0001173-
                          2012, CP-36-CR-0001177-2012


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                             FILED DECEMBER 19, 2016

        Appellant, Shaun Ronald Appler, appeals from the March 8, 2016 order

denying, as untimely, his second petition filed under the Post Conviction

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

        On November 5, 2012, Appellant entered a series of negotiated guilty

pleas. At docket No. 1167-2012, Appellant pleaded guilty to two counts of

robbery, two counts of theft by unlawful taking, and two counts of criminal

conspiracy to commit robbery.1 At docket No. 1173-2012, Appellant pleaded

guilty to two counts of robbery, three counts of criminal conspiracy, and two

counts of theft by unlawful taking.            At docket No. 1177-2012, Appellant

pleaded guilty to robbery and criminal attempt to commit theft by unlawful
____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(ii), 3921(a), and 903, respectively.
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taking. That same day, Appellant was sentenced to an aggregate of ten to

twenty years of incarceration. See Notes of Testimony (N. T.), 11/5/12, at

2-8. Appellant did not file a direct appeal.

       On July 23, 2013, Appellant pro se filed a timely petition seeking PCRA

relief. The court appointed PCRA counsel, who submitted a Finley2 letter.

On December 4, 2013, the court granted counsel’s request to withdraw and

dismissed Appellant’s petition without a hearing.       Appellant did not appeal

this order.

       On November 2, 2015, Appellant pro se filed a motion to modify

sentence, seeking leave to file post-sentence motions nunc pro tunc, which

the PCRA court treated as a second PCRA petition. Appellant argued that his

sentence was illegal under Alleyne v. United States, 135 S. Ct. 1251

(2013). On November 19, 2015, the court appointed counsel, who filed a

Finley letter, noting that the petition lacked merit because it was untimely.

On January 26, 2016, the court issued notice of intent to dismiss Appellant’s

petition pursuant to Pa.R.Crim.P. 907. On March 7, 2016, the court granted

counsel’s petition to withdraw and dismissed Appellant’s petition as

untimely.

       Appellant timely appealed.         The PCRA court did not issue an order

pursuant to Pa.R.A.P. 1925(b).          Further, the PCRA court did not issue an


____________________________________________


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



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opinion pursuant to Pa.R.A.P. 1925(a). Instead, the PCRA court issued an

order stating that it affirmed its dismissal of Appellant’s PCRA petition for the

reasons set forth in its Pa.R.Crim.P. 907 notice.

      Herein, Appellant presents three issues for our review:

      I. Whether Appellant’s counsel was ineffective in failing to seek
      correction of Appellant’s term in light of the fact that the law in
      Pennsylvania allows for an unlawful sentence to be corrected
      under the “plain error” doctrine, and counsel knew or should
      have known of the law relating to this aspect of criminal
      sentences?

      II. Whether Appellant’s sentence is unlawful in light of recent
      U.S. Supreme Court holdings which have outlawed the usage of
      the sentencing statutes which Appellant was sentenced under
      and of which recent amendment(s) and decision-making from
      the Pennsylvania courts clearly indicate having retroactive effect
      on sentencing in Pennsylvania?

      III.    Whether Pennsylvania has any enacted statutes or
      legislation empowering any court to construe documents filed by
      a litigant as other than that document the litigant has filed,
      otherwise altering the proceedings of that litigant?

Appellant’s Brief at iii (unnecessary capitalization omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      We begin by addressing the timeliness of Appellant’s petition, as the

PCRA court issued an Order stating time limitations implicate our jurisdiction

and may not be altered or disregarded in order to address the merits of his



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claims. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007).

Under the PCRA, any petition for relief, including second and subsequent

petitions, must be filed within one year of the date on which the judgment of

sentence becomes final. Id. There are three exceptions:

       (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. § 9545(b)(1)(i)-(iii).         Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s petition is untimely.3        Nevertheless, Appellant asserts his

claim is based upon a newly recognized constitutional right held to apply

retroactively. See Appellant’s Brief at 5-7.

____________________________________________


3
 Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on December 5, 2012, at the expiration of his thirty days to file
a direct appeal. 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
(Footnote Continued Next Page)


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      According to Appellant, the sentence imposed upon him is illegal

pursuant to a newly recognized constitutional rule. See Appellant’s Brief at

5-7 (citing in support Alleyne, 133 S. Ct. at 2155 (concluding that “[a]ny

fact that … increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt”)).                    Appellant

argues that our courts have held that the unconstitutional portions of

mandatory minimum sentencing statutes are not severable. Id. at 6 (citing

in support Commonwealth v. Hopkins, 117 A.3d 247 (2015)). Moreover,

Appellant asserts, this new rule must be applied retroactively, thus entitling

him to collateral relief.         Id. at 5-6 (citing in support Montgomery v.

Louisiana, 136 S. Ct. 718 (2016)).

      Appellant’s reliance upon Montgomery to establish the retroactive

applicability of Alleyne is misplaced.            In Montgomery, the United States

Supreme Court recognized that state collateral review courts must give

retroactive   effect     to   a   new,    substantive   rule   of   constitutional    law.

Montgomery, 136 S. Ct. at 729.                   However, the Pennsylvania Supreme

Court has recently 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.

                       _______________________
(Footnote Continued)

for seeking the review). Thus, Appellant had until December 5, 2013, to
timely file a petition. Appellant filed his current petition on November 2,
2015.



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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).   Neither did Hopkins announce a new rule that has been held to

apply retroactively.    See Commonwealth v. Whitehawk, 146 A.3d 266,

271 (Pa. Super. 2016).

      Appellant’s petition is untimely, and he has not satisfied a timeliness

exception to the requirements of the PCRA. Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant’s claims, and

properly dismissed his petition. See Ragan, 932 A.2d at 1170.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




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