J-S70044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NATHAN ROBERT PARKER

                            Appellant                 No. 976 EDA 2015


                  Appeal from the PCRA Order March 10, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003993-2011
                            CP-51-CR-0003551-2011


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 20, 2015

        Nathan Robert Parker appeals from the order entered in the Court of

Common Pleas of Chester County, dismissing his petition filed under the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”).      Upon review,

we affirm.

        On June 27, 2012, Parker entered a negotiated guilty plea to one

count each of robbery, criminal conspiracy and possession with intent to

deliver and was sentenced to an aggregate of 9 to 18 years’ imprisonment.

He did not file a direct appeal. The intervening procedural history, involving

Parker’s filing of multiple motions and a prior PCRA petition, is not relevant

to our disposition here, except to note that in his previous PCRA petition,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Parker challenged the legality of the search of the safe in which contraband

was discovered.

      Parker filed the instant PCRA petition, his second, on August 8, 2014,

alleging claims of ineffectiveness of counsel, an unlawfully induced guilty

plea, and an illegal sentence. With regard to the last claim, Parker asserted

that his mandatory minimum sentence is in violation of Alleyne v. United

States, 133 S.Ct. 2151 (2013).       On January 22, 2015, the PCRA court

issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.      Parker

filed three responses to the court’s Rule 907 notice. On March 10, 2015, the

court dismissed Parker’s petition as untimely filed.       This timely appeal

followed, in which Parker raises the following issues for our review:

      1. The police officers whom [sic] conducted the search of
      [Parker’s] residence exceeded the scope of the warrant when
      they searched [Parker’s] safe.

      2. Commonwealth is in violation of Brady v. Maryland, 373
      U.S. [83] (1963), when they failed to provide [Parker] with
      favorable evidence.

      3. [Parker’s] counsel was ineffective for multiple reasons
      including manipulation, coercion and withholding information
      from [Parker].

      4. [Parker] was sentenced to a mandatory minimum sentence
      pursuant to 42 Pa.C.S.A. [§] 7508 for the [possession with intent
      to deliver charge] in violation of the recent decisions by the
      Pennsylvania Supreme and Superior Courts as well as the United
      States Supreme Court.

Brief of Appellant, at [3].

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine


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whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      The PCRA court dismissed Parker’s petition as untimely filed. A PCRA

petition, including a second or subsequent petition, must be filed within one

year of the date the underlying judgment of sentence becomes final.       See

42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz, 830 A.2d

1273, 1275 (Pa. Super. 2003). A judgment is deemed 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.A. § 9545(b)(3); see also

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).

Here, Parker was sentenced on June 27, 2012 and did not file a direct appeal

to this Court.   Thus, his judgment of sentence became final no later than

July 27, 2012, upon the expiration of the thirty-day period for filing an

appeal to this Court.    See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Parker had one year from that date, or until July 27, 2013, to file a timely

PCRA petition. See 42 Pa.C.S.A. § 9545(b). Parker did not file the instant

petition until August 8, 2014, more than one year after his judgment of

sentence became final.     Accordingly, Parker’s petition is facially untimely


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unless he pled and offered to prove one of the three statutory exceptions to

the time bar. See 42 Pa.C.S.A. § 9545(b).

        The timeliness exceptions provided for in the PCRA include interference

by government officials in the presentation of the claim, after-discovered

facts    or   evidence,    and   an   after-recognized,   retroactively   applied

constitutional right.     See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.

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

one of these exceptions must be filed within 60 days of the date the claims

could have been presented.       42 Pa.C.S.A. § 9545(b)(2).      The timeliness

requirements of the PCRA are jurisdictional in nature and, accordingly, a

PCRA court cannot hear untimely petitions. Commonwealth v. Robinson,

837 A.2d 1157 (Pa. 2003).

        Here, Parker invokes the exception under section 9545(b)(1)(iii),

claiming that the U.S. Supreme Court’s decision in Alleyne renders his

sentence illegal. This claim is meritless. First, we note that Parker’s PCRA

petition failed to allege which of his sentences was a mandatory minimum

sentence subject to the dictates of Alleyne. Second, even if Parker received

a sentence to which Alleyne applies, he would not be entitled to relief.

Alleyne has not been held by either the Pennsylvania Supreme Court or the

United States Supreme Court to apply retroactively. See Commonwealth

v. Miller, 102 A.3d 988 (Pa. Super. 2014) (affirming dismissal of PCRA

Alleyne claim because case not held to be applied retroactively for purposes


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of   PCRA).      Thus,    it   does   not      satisfy   the   requirements   of   section

9545(b)(1)(iii). Third, even if Alleyne had been held to apply retroactively,

Parker failed to timely raise the claim as required under section 9545(b)(2).

The Supreme Court announced its decision in Alleyne on June 17, 2013.

Accordingly, Parker was required to raise his claim on or before August 17,

2013. As noted above, Parker did not file the instant petition until August 8,

2014. Therefore, his claim is untimely and he is entitled to no relief.

       Parker’s remaining claims implicate the alleged ineffectiveness of his

trial counsel.1 They can garner him no relief for two reasons. First, Parker

does not assert that any of the claims satisfy any of the exceptions to the

time bar under section 9545(b).          Second, pursuant to section 9543 of the

PCRA, a petitioner is eligible for relief only if “the allegation of error has not

been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). Pursuant

to section 9544 of the PCRA, “an issue has been previously litigated if . . . it

has been raised and decided in a proceeding collaterally attacking the

conviction or sentence.” 42 Pa.C.S.A. § 9544(a)(3). Further, “an issue is

waived if the petitioner could have raised it but failed to do so before trial, at

trial . . . on appeal, or in a prior state postconviction proceeding.”                 42

Pa.C.S.A. § 9544(b).           Here, Parker’s remaining claims have either been

____________________________________________


1
  Although Parker’s appellate brief does not couch two of these issues in
terms of ineffectiveness, his PCRA petition did.




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previously litigated or could have been raised in a prior proceeding, but were

not.

       For the foregoing reasons, Parker is not entitled to PCRA relief.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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