J-S49038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

S.P.R.

                           Appellant                   No. 69 WDA 2017


                 Appeal from the PCRA Order December 14, 2016
             In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0000187-2002,
              CP-65-CR-0003136-2001, CP-65-CR-0004843-2000,
                             CP-65-CR-0004844-2000

BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 21, 2017

        Appellant, S.P.R., appeals pro se from the order entered in the

Westmoreland County Court of Common Pleas dismissing his third Post

Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant claims that

his petition was timely filed in light of the Pennsylvania Supreme Court’s

decision in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). We affirm.

        A previous panel of this Court summarized the facts and procedural

posture of this case in the memorandum decision affirming the denial of

Appellant’s second PCRA petition.

             The facts and procedural history . . . were aptly
           summarized by this Court in the memorandum decision


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. § § 9541-9546.
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       affirming the denial of [A]ppellant’s first PCRA petition,
       which we recite herein:

          On August 29, 2002, [Appellant] entered a general
          plea to multiple counts of involuntary deviate sexual
          intercourse (IDSI) with persons less than thirteen
          and with persons less than sixteen years of age,
          sexual abuse of children, unlawful contact or
          communication with a minor, endangering the
          welfare of children, and corruption of minors and one
          count of criminal attempt, criminal solicitation,
          incest, aggravated indecent assault with persons less
          than thirteen and less than sixteen years of age,
          recklessly endangering another person (REAP),
          trademark counterfeiting, and criminal attempt. On
          January 28, 2003, the trial court sentenced him to
          not less than twenty-five nor more than one hundred
          and twenty-two years’ incarceration. The trial court
          also found him to be a sexually violent predator
          pursuant to Megan’s law.

          After sentencing, [Appellant] was granted new
          counsel, who, in turn, filed post-sentence motions to
          withdraw the guilty plea. On June 27, 2003, the trial
          court granted the motion to withdraw on the grounds
          that [Appellant] was not properly advised that he
          could receive consecutive sentences. [Appellant’s]
          counsel   filed   pretrial   motions,   which   were
          subsequently denied by the trial court.

          On February 9, 2004, [Appellant] pleaded guilty to
          four counts of IDSI, one count of criminal attempt to
          commit IDSI, fifteen counts of sexual abuse of
          children, five counts of unlawful contact or
          communication with minors, three counts of
          endangering the welfare of children, one count of
          incest, four counts of REAP, two counts of
          aggravated indecent assault, and one count of
          trademark counterfeiting. [He was sentenced on
          May 27, 2004, to an aggregate term of imprisonment
          of [ ] 24 years to 65 years.] The trial court also
          determined [Appellant] to be a sexually violent
          predator pursuant to Megan’s Law. He filed post-
          sentence motions, which were subsequently denied.


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          He appealed to this Court, and we affirmed the
          judgment of sentence on August 5, 2005.
          Commonwealth v. S.P.R., [885 A.2d 581 (Pa.
          Super. 2005)].

          On October 5, 2005, [Appellant] filed a petition with
          the PCRA court to appeal this Court’s affirmation
          nunc pro tunc. The PCRA court denied the petition.
          He appealed, and we reversed and remanded for an
          evidentiary hearing to determine why an application
          for allowance of appeal to the Supreme Court was
          not filed. Commonwealth v. [S.P.R., 907 A.2d
          1138 (Pa. Super. 2006)]. [Appellant] was appointed
          new counsel for the evidentiary hearing held on
          November 7, 2006[;] afterward, the PCRA court
          granted the petition and permitted him to appeal to
          our Supreme Court. On April 25, 2007, our Supreme
          Court denied his petition.    [Commonwealth v.
          S.P.R., 921 A.2d 496 (Pa. 2007)].

          On or about April 28, 2008, [Appellant] filed a pro se
          PCRA petition alleging numerous claims of ineffective
          assistance of counsel. The PCRA court appointed
          counsel. Following review, counsel filed a “no merit”
          letter. On October 30, 2008, the PCRA court issued
          notice of intention to dismiss the PCRA petition as
          per Pa.R.Crim.P. 907. On November 20, 2008, the
          PCRA court denied the petition and permitted
          counsel     to    withdraw      from   representation.
          [Appellant] filed a motion for extension of time to file
          an amended PCRA petition that was received on that
          same date. The PCRA court denied his request. He
          filed a timely notice of appeal.

       Commonwealth v. S.P.R., 988 A.2d 728 (Pa. Super.
       2009) (unpublished memorandum, October 22, 2009, at
       pp. 1-3).      On appeal, [A]ppellant challenged the
       voluntariness of his guilty plea, and the ineffective
       assistance of both plea counsel and PCRA counsel. This
       Court, however, affirmed the order denying PCRA relief.
       See: id.     Appellant, thereafter, filed a petition for
       allowance of appeal, which the Pennsylvania Supreme
       Court denied on April 1, 2011.       Commonwealth v.
       S.P.R., [ ] 20 A.3d 486 ([Pa.] 2011). The Court also


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       denied      [A]ppellant’s    subsequent      petition    for
       reconsideration by order dated May 2, 2011. On June 29,
       2011, [A]ppellant filed his second PCRA petition, pro se.
       On July 26, 2011, the trial court issued [A]ppellant notice,
       pursuant to Pa.R.Crim.P. 907, of its intention to dismiss
       the petition as untimely filed. Although [A]ppellant filed a
       response to the court’s notice, the trial court, by order
       dated August 15, 2011, dismissed the PCRA petition as
       untimely filed. This timely appeal followed.

                                *    *    *

          Appellant’s judgment of sentence became final on
       July 24, 2007, ninety days after the Pennsylvania
       Supreme Court denied his petition for allowance of
       appeal and the time for filing a petition for certiorari
       in the United States Supreme court had expired.
       See: 42 Pa.C.S. § 9545(b)(3); United States Supreme
       Court Rule 13. Thus, [A]ppellant had until July 24, 2008,
       to file a timely PCRA petition, and the instant petition, filed
       nearly three years later, was manifestly untimely absent
       [A]ppellant’s ability to prove that one of the exceptions to
       the timing requirements apply.

                                *    *    *

       Here, as part of a multi-count, negotiated plea,
       [A]ppellant, on February 9, 2004, entered a guilty plea to
       one count of trademark counterfeiting, 18 Pa.C.S. § 4119.
       On October 5, 2009, however, the Pennsylvania Supreme
       Court in Commonwealth v. Omar, [ ] 981 A.2d 179, 189
       ([Pa.] 2009), declared the statute “unconstitutionally
       overbroad.”

                                *    *    *

           Appellant filed an appeal from the trial court’s denial of
       his first PCRA petition on December 29, 2008.             We
       affirmed the trial court’s decision on October 22, 2009, and
       following our denial of reargument, [A]ppellant filed a
       petition for allowance of appeal with the Pennsylvania
       Supreme Court on April 2, 2010. Thereafter, the Supreme
       Court (1) denied [A]ppellant’s petition for allowance of
       appeal on April 1, 2011, and (2) denied [A]ppellant’s


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        subsequent petition for reconsideration on May 2, 2011.
        Appellant filed the present PCRA petition less than 60 days
        later, on June 29, 2011.

                                *    *    *

        [I]n the present case, the sixty-day period for filing a
        second PCRA petition pursuant to one of the time-for-filing
        exceptions began to run on the date the Pennsylvania
        Supreme     Court     denied   [A]ppellant’s  petition    for
        reconsideration, that is, on May 2, 2011, and his present
        petition was timely filed pursuant to § 9545(b)(2). . . .

           Here, it is undisputed that the Pennsylvania Supreme
        Court in Omar, supra, held that the trademark
        counterfeiting statute, 18 Pa.C.S. § 4119, was
        unconstitutionally overbroad . . . . Thus, we are compelled
        to  reverse     [A]ppellant’s   conviction   of   trademark
        counterfeiting.

                                *    *    *

        Appellant received “no further sentence” for his guilty plea
        to the count of trademark counterfeiting. . . . Thus, the
        abrogation of the conviction for trademark counterfeiting
        does not disturb the sentencing scheme envisioned by the
        trial court, and, by extension, does not upset the
        parameters of the negotiated agreement entered into by
        [A]ppellant and the Commonwealth.

                                *    *    *

        In conclusion, . . . we must reverse the judgement of . . .
        sentence for [the crime of trademark counterfeiting]. In
        all other respects, we affirm the order of the trial court
        denying [A]ppellant PCRA relief.

Commonwealth v. S.P.R., No. 1414 WDA 2011 at 2-4, 6-10, 14 (Pa.

Super. filed May 1, 2012) (unpublished memorandum) (emphasis added).

Appellant filed a petition for allowance of appeal which was denied on




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January 28, 2013. Commonwealth v. S.P.R., 377 WAL 212 (Pa. filed Jan.

28, 2013).

      Appellant filed the instant PCRA petition on August 15, 2016. Id. On

October 28, 2016, the PCRA court filed a notice of intent to dismiss the

petition pursuant to Pa.R.Crim.P. 907. Id. at 39. Appellant filed a response

to the notice on November 9, 2016. On December 14, 2016, the PCRA court

dismissed the PCRA petition. This timely pro se appeal followed.

      Appellant raises the following issues for our review:

         I. Whether the record and law supports the lower court’s
         ruling that Appellant’s PCRA petition was untimely, lacked
         merit and could not meet the statutory exceptions
         governing an untimely PCRA petition?

         II. Whether the lower court erred by ruling an attempt to
         raise an exception to an untimely PCRA petition must be
         filed within 60 days of a Superior Court decision?

Appellant’s Brief at 4.

      As a prefatory matter, we consider whether the PCRA court had

jurisdiction to entertain the underlying PCRA petition.       Appellant contends

the court had jurisdiction to entertain his PCRA petition based upon his filing

of the petition within sixty days of the Pennsylvania Supreme Court’s

decision in Wolfe. Appellant’s Brief at 8, 12.

      On appellate review of a PCRA ruling, “we determine whether the

PCRA court’s ruling is supported by the record and free of legal error.”

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).




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        We . . . turn to the time limits imposed by the PCRA, as
        they implicate our jurisdiction to address any and all of
        [a]ppellant’s claims. To be timely, a PCRA petition must
        be filed within one year of the date that the petitioner’s
        judgment of sentence became final, unless the petition
        alleges and the petitioner proves one or more of the
        following 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).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). . . .

Id. at 719-20 (some citations omitted and emphasis added).

     Our Supreme Court

        has repeatedly stated that the PCRA timeliness
        requirements are jurisdictional in nature and, accordingly,
        a PCRA court cannot hear untimely PCRA petitions. In
        addition, we have noted that the PCRA confers no
        authority upon this Court to fashion ad hoc equitable
        exceptions to the PCRA time-bar in addition to those
        exceptions expressly delineated in the Act. We have also


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        recognized     that    the   PCRA’s   time   restriction   is
        constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

     In Wolfe, the “[a]ppeal was allowed to assess the validity of the

Superior Court’s sua sponte determination that a sentencing statute is

facially unconstitutional under Alleyne v. United States, [ ] 133 S.Ct.

2151, [ ] (2013).” Wolfe, 140 A.3d at 653. This Court held that the ten

year mandatory minimum sentence for IDSI was facially unconstitutional.

Id. at 655.   The Pennsylvania Supreme Court affirmed the order of the

Superior Court. Id. at 663.

     “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.”2 Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014) (citation omitted). In Commonwealth v. Washington,

142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court addressed the

issue of “whether the Supreme Court of the United States’ decision in

Alleyne . . . applies retroactively to attacks upon mandatory minimum

sentences advanced on collateral review.”     Id. at 811.   The Washington

Court held that “Alleyne does not apply retroactively to cases pending on

2
 We note that Appellant’s judgment of sentence became final on July 24,
2007. Alleyne was decided on June 17, 2013.



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collateral review, and that [the a]ppellant’s judgment of sentence, therefore,

is not illegal on account of Alleyne.” Id. at 820.

        It is undisputed that Appellant’s third PCRA petition is untimely on its

face.    Following our review of the relevant law, we agree with the PCRA

court that Appellant failed to establish a timeliness exception based on the

rights recognized in Alleyne and the Pennsylvania cases applying Alleyne.

See PCRA Ct. Order, 12/14/16.3        As discussed above, neither the United

States Supreme Court nor the Pennsylvania Supreme Court has held that

Alleyne is to be applied retroactively to cases pending on collateral review.

See Washington, 142 A.3d at 820. Appellant’s citation to Wolfe does not

establish   a   timeliness   exception;   therefore,   the   PCRA   court   lacked

jurisdiction. See Robinson, 837 A.2d at 1161. We find the PCRA court’s

ruling is supported by the record and free of legal error. See Marshall, 947

A.2d at 719. Accordingly, we affirm the order of the PCRA court.

        Order affirmed.




3
  The PCRA court incorporated its October 28, 2016 Notice of Intention to
Dismiss Motion for Post-Collateral Relief as its opinion. See id. at 3-4.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




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