J-S54025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

 BLAISE P. TUNSTALL

                             Appellant                    No. 165 WDA 2017


                 Appeal from the PCRA Order December 13, 2016
                 In the Court of Common Pleas of Mercer County
               Criminal Division at No(s): CP-43-CR-0000145-2013


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                     FILED NOVEMBER 17, 2017

       Blaise P. Tunstall appeals pro se from the December 13, 2016 order

entered in the Mercer County Court of Common Pleas dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

46. We affirm.

       The PCRA court summarized the factual and procedural history of this

matter as follows:

               [Tunstall] pled guilty to aggravated indecent assault[1] on
            July 2, 2013. On November 21, 2013, the Court imposed a
            sentence of five to ten years incarceration based on a
            mandatory/minimum sentencing provision[] of 42 Pa.
            C.S.A. § 9718(a). (Sentences for offenses against infant
            persons). [Tunstall] did not file a direct appeal. Accordingly,
____________________________________________


       *   Former Justice specially assigned to the Superior Court.

       1   18 Pa.C.S. § 3125(a)(1).
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       for purposes of the PCRA his [judgment] of sentence
       became final on December 21, 2013 when the period in
       which to file a notice of appeal expired. See Pa. R.A.P.
       903(a).

           On August 24, 2015, Tunstall acting pro se filed a first
       PCRA Petition challenging [the] legality of his sentence and
       raising an exception to the one year time bar for claims
       under the PCRA. See 42 Pa. C.S. § 9545(b). On August 31,
       2015, without appointing counsel, this court issued a Notice
       of Intent to Dismiss Pursuant to Pa. Rule [of] Criminal
       Procedure 907. This court dismissed the Petition on
       September 23, 2015 and this appeal followed. This court in
       its original 1925 opinion noted that it had erred by failing to
       appoint PCRA counsel for [Tunstall] despite the facial
       untimeliness of [Tunstall]’s Petition. The Superior Court
       citing to Pa. R. Crim. P. 940(c) and Commonwealth v
       Perez, 799 A.2d 848, 851 (Pa. Super. 2002), noted
       defendants have a strong right to counsel on their first PCRA
       Petition and the Court must appoint counsel if the
       [d]efendant is indigent.

          The Superior Court remanded the case to this court on
       May 26, 2016 to determine if [Tunstall] was indigent and, if
       so, appoint him counsel. On June 9, 2016, [Tunstall] being
       indigent, the Court appointed Randall T. Hetrick to represent
       Tunstall on his PCRA Petition.     After granting defense
       counsel’s Motion for Transcripts the Court held a PCRA
       conference on July 21, 2016.

           At that conference, the Court determined that the issues
       in this matter were purely legal and gave the Parties 60 days
       to stipulate to certain facts, a timeline, and to submit legal
       argument. After a continuance, the Parties me[]t for a PCRA
       conference on November 29, 2016 and made oral argument
       to the Court. At the hearing, the Commonwealth reiterated
       its position that the PCRA Petition was untimely and did not
       qualify for any timeliness exception and the defense raised
       no additional argument other than what it already
       submitted.

          This Court then issued an Order on December 12, 2016
       dismissing [Tunstall]’s PCRA Petition as untimely. This
       Court’s December 12, 2016 Order is attached hereto and
       incorporated herein by reference.


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                Although [Tunstall] was still represented by counsel, he
            filed a Notice of Appeal pro se2 and ultimately filed a
            Statement of Matters Complained of on Appeal Pursuant to
            Pa. R. Crim. P. 1925(b) pro se.

                On February 21, 2017, this Court held a status
            conference in which [Tunstall] appeared via video
            conference to determine if the Defendant wished to proceed
            on a pro se basis. Apparently, Attorney Hetrick had made
            it clear to [Tunstall] that Attorney Hetrick found there to be
            no merit in [Tunstall]’s appeal and would be filing a No
            Merit/Finley[3] Letter and withdraw. Apparently, based on
            this conversation [Tunstall] took it upon himself to make the
            pro se filings set forth above.

              At the video conference on February 21, 2017, Attorney
            Hetrick again reiterated his position which was the appeal
____________________________________________


       2Tunstall’s pro se notice of appeal was docketed on January 19, 2017,
which is more than 30 days after the entry of the December 13, 2016 order
from which he appeals. See Pa.R.A.P. 903(a). However, under the “prisoner
mailbox rule,” which applies to all pro se legal filings by incarcerated litigants,
a document is deemed filed on the date it is delivered to prison authorities or
deposited in a prison mailbox. See Thomas v. Elash, 781 A.2d 170, 176
(Pa.Super. 2001). “[A]n incarcerated litigant must supply sufficient proof of
the date of mailing.” Id. “[A]ny reasonably verifiable evidence of the date
that the prisoner deposits” the document with prison authorities is acceptable.
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). The stamp on the
copy of the envelope containing Tunstall’s notice of appeal in the certified
record bears a date of January 13, 2017, which is 31 days after entry of the
December 13, 2016 order. However, the notice of appeal itself is dated
January 12, 2017, and includes both a certificate of service and verification
page, also dated January 12, 2017. “Where . . . the facts concerning
timeliness are in dispute, a remand for an evidentiary hearing may be
warranted.” Id. at 426 n.3. However, because we conclude that Tunstall is
not entitled to relief, we find that remand is unnecessary. See Thomas, 781
A.2d at 176 (finding that, although questions regarding timeliness of
appellant’s post-trial motions existed because document contained proof of
service that was not notarized, remand to PCRA court for evidentiary hearing
was unnecessary because appellant was not entitled to relief).

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



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            had no merit and he would be filing a No Merit/Finley Letter
            and withdraw. The Court then engaged [Tunstall] in a
            lengthy colloquy as to whether he wanted to proceed on a
            pro se basis and [Tunstall] indicated that he wished to do so
            and this Court found that [Tunstall] made a knowing,
            intelligent, and voluntary waiver of counsel and released
            Attorney Hetrick from any further obligation in this matter.

1925(a) Opinion, 2/23/17, at 2-5 (unpaginated).

       Tunstall raises the following issues on appeal:

            I. Did the P.C.R.A. Court err in dismissing Mr. Tunstall’s Post
            Conviction Relief Act Petition without a hearing after the
            Superior Court vacated and remanded for appointment of
            counsel, who upon being appointed made the offer of an
            entirely new plea bargain to Mr. Tunstall, then upon Mr.
            Tunstall’s refusal, counsel filed a No-Merit/Finley Letter and
            withdrew,[4] then the P.C.R.A. was dismissed?

            II. Did the P.C.R.A. Court err in dismissing Mr. Tunstall’s
            Post Conviction Relief Act Petition without a hearing when
            the sentence imposed upon Mr. Tunstall is unconstitutional,
            therefore illegal due to the statute found at 42 Pa.C.S.A. §
            9718 being rendered void ab initio by Commonwealth v.
            Wolfe, 140 A.3d 651 ([Pa.] 2016) ?

            Ill. Did the P.C.R.A. Court unreasonably apply the law to Mr.
            Tunstall’s case when the Teague v. Lane, 488 U.S. 288
            (1989) non–retroactivity standard cannot be applied to
            statutes that were deemed void ab initio?

Tunstall’s Br. at 4 (proposed answers omitted).

       Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error. We will not disturb




____________________________________________


       4   The certified record reflects that counsel never filed a no-merit letter.

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findings that are supported by the record.” Commonwealth v. Ousley, 21

A.3d 1238, 1242 (Pa.Super. 2011) (internal citation omitted).

      Furthermore, the right to an evidentiary hearing on a PCRA petition is

not absolute. Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super.

2008). “[I]f the PCRA court can determine from the record that no genuine

issues of material fact exist, then a hearing is not necessary.” Id. (quoting

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008)).                  “A

reviewing court must examine the issues raised in the PCRA petition in light

of the record in order to determine whether the PCRA court erred in concluding

that there were no genuine issues of material fact and in denying relief without

an evidentiary hearing.” Id.

      Before we reach the merits of Tunstall’s appeal, we must determine

whether it has been timely filed. It is well settled that “the timeliness of a

PCRA petition is a jurisdictional requisite.” Commonwealth v. Brown, 111

A.3d 171, 175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA

petition “including a second or subsequent petition, shall be filed within one

year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A

judgment is 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 [] review.” 42 Pa.C.S.

§ 9545(b)(3).




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      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory 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); see Brown, 111 A.3d at 175-76. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

      Tunstall’s judgment of sentence became final on December 21, 2013,

when the time to file a notice of appeal expired. He had one year from that

date, or until December 21, 2014, to file a timely PCRA petition. Therefore,

his current petition, filed on August 24, 2015, is facially untimely.

      Tunstall’s petition remains untimely unless it alleges and proves a PCRA

time-bar exception. Tunstall invokes the new constitutional right exception.




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42 Pa.C.S. § 9545(b)(1)(iii).5 Tunstall bases this claim on this Court’s decision

in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), which was

subsequently affirmed by our Supreme Court in Commonwealth v. Wolfe,

140 A.3d 651 (Pa. 2016). In Wolfe, the Pennsylvania Supreme Court found

that 42 Pa.C.S. § 9718 was unconstitutional in light of the U.S. Supreme

Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). 140

A.3d at 663.      “[A] challenge to a sentence premised upon Alleyne . . .

implicates the legality of the sentence and cannot be waived on appeal.”

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.Super. 2014). However,

while “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). Because Tunstall’s petition was untimely, and he has not

proven any of the exceptions to the PCRA time bar, 6 this Court lacks

jurisdiction to consider the merits of his claims.



____________________________________________


       In his original pro se PCRA petition, Tunstall also invoked the newly-
       5

discovered fact exception. 42 Pa.C.S. § 9545(b)(1)(ii). Tunstall based this
claim on this Court’s decision in Commonwealth v. Hopkins, 117 A.3d 247
(Pa. 2015). However, it is well-settled that “subsequent decisional law does
not amount to a new fact” under the PCRA. Commonwealth v. Brandon,
51 A.3d 231, 235 (Pa.Super. 2012) (quotation omitted).

       6The United States Supreme Court decided Alleyne on June 17, 2013.
The trial court sentenced Tunstall on November 21, 2013.           Thus, the
constitutional right announced by the Alleyne court was recognized prior to
the end of the time period provided for by section 9545. Accordingly, Tunstall
may not invoke the new constitutional right exception as an exception to the
PCRA time bar.

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     Furthermore, because there are no genuine issues of material fact

regarding the timeliness of Tunstall’s petition, the PCRA court appropriately

dismissed the petition without an evidentiary hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2017




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