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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
ANTHONY JENNINGS,                          :          No. 2907 EDA 2017
                                           :
                          Appellant        :


                 Appeal from the PCRA Order, August 25, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0506581-2004


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 22, 2019

        Anthony Jennings appeals pro se from the August 25, 2017 order

entered in the Court of Common Pleas of Philadelphia County that dismissed,

without a hearing, his second petition filed pursuant to the Post Conviction

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

        The record reflects that appellant was convicted in a waiver trial of rape,

statutory sexual assault,1 and related offenses. On April 24, 2007, the trial

court sentenced appellant to an aggregate term of imprisonment of 8 to

16 years, followed by a 10-year probationary term. On July 28, 2008, this

court affirmed appellant’s judgment of sentence.             Commonwealth v.

Jennings, No. 1986 EDA 2007, unpublished memorandum (Pa.Super. filed




1   18 Pa.C.S.A. §§ 3121(a)(1) and 3122.1(b), respectively.
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July 28, 2008). On April 13, 2009, appellant filed a counseled PCRA petition,

which the PCRA court ultimately dismissed.

          On July 31, 2015, appellant filed the PCRA petition which is the subject

of this appeal. On July 19, 2017, the PCRA court filed its notice of intent to

dismiss pursuant to Pa.R.Crim.P. Rule 907. Appellant filed a timely objection.

On August 25, 2017, the PCRA court entered its order denying appellant PCRA

relief.

          Appellant filed a timely notice of appeal to this court. The PCRA court

then ordered appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. Thereafter,

the PCRA court filed its Rule 1925(a) opinion.

          Appellant raises the following issues for our review:

                I.     Did the [PCRA c]ourt err in denying the [PCRA
                       p]etition without a hearing by misapprehending
                       the       retrospective        application    in
                       Commonwealth v. Hopkins, 117 A.3d 247
                       (2015) when it’s [sic] paradigm, Alleyne v.
                       United States, [570 U.S. 99] (2013)[,] created
                       a “substantive rule,” which “the Constitution
                       requires State Collateral Review Courts to give
                       retroactive effect to that rule?”

                II.    Did the [PCRA c]ourt err in denying the [PCRA
                       p]etition without a hearing when [appellant]
                       filed the instant [PCRA] Petition timely by filing
                       within sixty (60) days of learning of the
                       Supreme Court of Pennsylvania’s decision in
                       Commonwealth v. Hopkins, 117 A.3d 247
                       (2015)?

                III.   Did the [PCRA c]ourt err in denying the [PCRA
                       p]etition without a hearing when [appellant]


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                   contends that through the [PCRA c]ourt’s
                   inherent power, the [PCRA c]ourt always retains
                   jurisdiction   to     correct     his     patently
                   unconstitutional, and therefore illegal sentence?

Appellant’s brief at 4.

      All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment 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

the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme

Court of Pennsylvania has held that the PCRA’s time restriction is

constitutionally sound.   Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of a

PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Here, this court affirmed appellant’s judgment of sentence on July 28,

2008. The record reflects that appellant did not seek discretionary review of

this court’s decision by our supreme court.          Consequently, appellant’s

judgment of sentence became final on August 27, 2008, at the expiration of

time for seeking discretionary review by our supreme court. See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759, 763


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(Pa.Super. 2013).    Therefore, appellant’s petition, filed July 31, 2015, is

facially untimely. As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).

      Those three narrow exceptions to the one-year time-bar are: when the

government has interfered with the petitioner’s ability to present the claim,

when the appellant has recently discovered facts upon which his PCRA claim

is predicated, or when either the Supreme Court of Pennsylvania or the

Supreme Court of the United States has recognized a new constitutional right

and made     that right   retroactive.     42   Pa.C.S.A. §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The

petitioner bears the burden of pleading and proving the applicability of any

exception. 42 Pa.C.S.A. § 9545(b)(1). If a petitioner fails to invoke a valid

exception to the PCRA time-bar, this court may not review the petition. See

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Here, appellant attempts to invoke the timeliness exception of

42 Pa.C.S.A. § 9545(b)(1)(iii) relating to a new constitutional right that

applies retroactively. Specifically, appellant contends that his sentence was

illegal pursuant to Alleyne v. United States, 570 U.S. 99 (2013), and

Commonwealth v. Hopkins, 117 A.2d 247 (Pa. 2014), which appellant

claims “provides implied retroactivity due to the requirements of stare decisis,

the void ab initio doctrine eliminates the statute found at 42 Pa.C.S.A.



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§ 9717.”    (Appellant’s brief at 24.)    Even assuming that appellant met his

initial burden of showing that he raised his claim within 60 days of the date

the claim could have first been presented,2 appellant is incorrect in his

assertion that he has satisfied the new constitutional right exception to the

time-bar.

      In Alleyne, the United States Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt. Alleyne, 570 U.S. at 116. To support his

Alleyne claim, appellant cites to 42 Pa.C.S.A. § 9717.          Section 9717,

however, is not applicable because that statute addresses sentences for

offenses committed against the elderly, and appellant was sentenced for

sexual offenses he committed against a minor when that minor was 9 and

11 years old.    Jennings, No. 1986 EDA 2007 at 1.          Nevertheless, even

assuming that appellant received an increased mandatory minimum sentence

that would implicate Alleyne on direct appeal or in the context of a timely

PCRA petition, our supreme court has held that “Alleyne does not invalidate

a mandatory minimum sentence when presented in an untimely PCRA petition




2 The 60-day rule applicable to appellant’s claim was codified at 42 Pa.C.S.A.
§ 9545(b)(2) and required that “[a]ny petition invoking a exception . . . shall
be filed within 60 days of the date the claim could have been presented.” A
2018 amendment to Section 9545(b)(2) substituted “within one year” for
“within 60 days.” The effective date of the amendment is December 24, 2018,
and the amendment applies to claims arising one year before the effective
date or thereafter. See Act 2018-146, § 3. Therefore, because appellant’s
claim arose prior to December 24, 2017, the 60-day rule applies.


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. . . since Alleyne does not apply to cases where the judgment of sentence

was final prior to Alleyne.” Commonwealth v. DiMatteo, 177 A.3d 182

(Pa. 2018) (citations omitted).     Alleyne was filed on June 17, 2013, and

appellant’s judgment of sentence became final prior thereto on August 27,

2008. Therefore, Alleyne provides no relief to appellant.

      Finally, appellant’s reliance on Hopkins, supra, is misplaced.         In

Hopkins, our supreme court applied Alleyne to affirm the unconstitutionality

of 18 Pa.C.S.A. § 6317, which imposed a mandatory minimum sentence for

crimes involving the sale of controlled substances near school zones.

Hopkins, 117 A.2d at 249. Notwithstanding the fact that appellant was not

charged with, convicted of, or sentenced for a crime involving the sale of

controlled substances near school zones, Hopkins involved a direct appeal

from a judgment of sentence, and the decision did not declare Alleyne to be

retroactive in this PCRA context.

      Therefore, appellant has failed to invoke a valid exception to the PCRA

time-bar, the PCRA court lacked jurisdiction to review appellant’s petition, and

we may not review the petition on appeal.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/22/19




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