J-S74007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RASHAWN FARMER SHAW,

                            Appellant                No. 2656 EDA 2013


             Appeal from the PCRA Order Entered August 16, 2013
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0606951-2002
                           CP-51-CR-0714361-2002


BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 03, 2014

        Appellant, Rashawn Farmer Shaw, appeals pro se from the trial court’s

August 16, 2013 order denying as untimely his petition filed pursuant to the

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

        Appellant was convicted on February 27, 2004, of various offenses

“stemming from his participation with others in two armed robberies of the

operators and patrons of businesses on March 30, 2002.” PCRA Court

Opinion (PCO), 3/26/14, at 1. That same day, Appellant was sentenced to

an aggregate term of 20 to 40 years’ incarceration. He did not file a direct

appeal.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      On December 1, 2008, Appellant filed a pro se PCRA petition and

counsel was appointed.       Various delays in the disposition of Appellant’s

petition ensued, which are irrelevant to the instant appeal.         On May 14,

2013, Appellant’s counsel filed a petition to withdraw and “no-merit” letter in

accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On May 17,

2013, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition. Appellant filed a timely pro se response, but on

August 16, 2013, the court issued an order dismissing Appellant’s petition

and granting counsel’s petition to withdraw.

      Appellant filed a timely pro se notice of appeal, as well as a timely

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In

his pro se, handwritten brief to this Court, Appellant does not set forth a

statement of the questions involved as required by Pa.R.A.P. 2116. He also

does not divide his argument section “into as many parts as there are

questions to be argued[,]” or set forth “at the head of each part – in

distinctive type or in type distinctively displayed – the particular point

treated therein….” Pa.R.A.P. 2119(a). These briefing errors make it difficult

to ascertain precisely what issues Appellant is asserting on appeal.

      Nevertheless,     we   must   begin   by   addressing   the   timeliness   of

Appellant’s petition, because the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition.    Commonwealth v. Bennett, 930 A.2d 1264, 1267

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(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded to address the merits of the petition);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding the Superior Court lacks jurisdiction to reach merits of an appeal

from an untimely PCRA petition).     Under the PCRA, any petition for post-

conviction relief, including a second or subsequent one, must be filed within

one year of the date the judgment of sentence becomes final, unless one of

the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies.    That

section states, in relevant part:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).    Any petition attempting to invoke one of

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

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on March 28,

2004, at the expiration of the thirty-day time-period for filing an appeal with

this Court.   See 42 Pa.C.S. § 9545(b)(3) (stating a judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking the review); Pa.R.A.P. 903(a) (stating a notice of appeal with

this Court “shall be filed within 30 days after the entry of the order from

which the appeal is taken”).       Accordingly, Appellant had until March 28,

2005, to file a timely petition.    Because his December 1, 2008 petition is

patently untimely, he must plead and prove the applicability of one of the

above-stated exceptions.

      Appellant has failed to meet this burden.         In his pro se petition,

Appellant alleged that his trial counsel was ineffective, and that his sentence

was illegal because the court imposed an “enhanced” term of incarceration

as punishment for Appellant’s refusal to plead guilty.             PCRA Petition,

12/1/08, at 3. Neither of these claims satisfies an exception to the PCRA’s

one-year time-bar.      See Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 785 (Pa. 2000) (holding that ineffectiveness of counsel claims generally

do   not   constitute   an   exception    to   the   PCRA   time   requirements);

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)

(“[A]lthough legality of sentence is always subject to review within the

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PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto.”) (citation omitted). Thus, the PCRA court did not err in

denying his petition as untimely. See Commonwealth v. Ragan, 923 A.2d

1169, 1170 (Pa. 2007) (stating that 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).

      We note, however, that Appellant presents two novel arguments on

appeal to this Court.      First, he asserts that his due process rights were

violated because his judgment of sentence was not reviewed on direct

appeal.     This claim is waived because it was not presented in Appellant’s

PCRA petition. 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.”). Moreover,

even if this argument had been preserved below, Appellant fails to explain

what timeliness exception his due process argument satisfies. Accordingly,

we would conclude that it does not entitle Appellant to a merits review of his

petition.

      Appellant presents a second novel argument in his reply brief to this

Court, which we interpret as an attempt to invoke the timeliness exception

set forth in section 9545(b)(1)(iii).    Specifically, Appellant asserts that his

sentence is illegal under Alleyne v. United States, 133 S.Ct. 2151 (2013)

(holding that any fact that increases a mandatory minimum sentence is an

‘element’ of the crime, not a sentencing factor, which must be found by the

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jury beyond a reasonable doubt).1 He further claims that this Court recently

held that Alleyne applies retroactively in Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014) (en banc).

       Appellant is incorrect.        While in Newman, we did conclude that

Alleyne applied retroactively to the defendant’s case because it “was still

pending on direct appeal when Alleyne was handed down,” we did not

address whether Alleyne applies retroactively to cases, such as Appellant’s,

which are pending on collateral review. Newman, 99 A.3d at 90 (emphasis

added).    Moreover, in Commonwealth v. Miller, 2014 WL 4783558 (Pa.

Super. 2014) – a case decided after Newman - this Court rejected the

argument that section 9545(b)(1)(iii)’s exception can be satisfied by relying

on Alleyne. We reasoned:

       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. This is fatal to Appellant's argument regarding the
       PCRA time-bar. 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),
____________________________________________


1
  This claim is not waived, despite Appellant’s failure to raise it before the
PCRA court, as it implicates the legality of Appellant’s sentence. See
Commonwealth v. Jones, 932 A.2d 179, 183 (Pa. Super. 2007)
(“[L]egality-of-sentence claims are non-waivable and thus [are] not
required to have been preserved at any prior stage of litigation in order to
obtain review thereof.”) (emphasis in original).



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      citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
      L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor,
      933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes
      of subsection (iii), the language ‘has been held by that court to
      apply retroactively’ means the court announcing the rule must
      have also ruled on the retroactivity of the new constitutional
      right, before the petitioner can assert retroactive application of
      the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715,
      951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy
      the new constitutional right exception to the time-bar.

Miller, 2014 WL 4783558, at *5.

      Based on Miller, we conclude that Appellant has not satisfied the

exception set forth in section 9545(b)(1)(iii). Accordingly, the PCRA court did

not err in denying his untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/2014




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