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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MICHAEL SPADAFORA

                         Appellant                      No. 1412 MDA 2015


                 Appeal from the PCRA Order July 17, 2015
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0005779-2008


BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                             FILED OCTOBER 19, 2016

     Michael Spadafora appeals from the July 17, 2015 order dismissing his

second PCRA petition. We affirm.

     Appellant manufactured and sold several pounds of methamphetamine

between 2007 and 2008, and, after an investigation by the Pennsylvania

Office of Attorney General, was charged with multiple offenses. On June 22,

2009, he tendered a negotiated guilty plea to one count each of corrupt

organizations,   delivery   of   a   controlled   substance,   manufacture   of   a

controlled substance, and a firearms violation. Pursuant to the agreement,

Appellant was sentenced to eight to twenty years imprisonment pursuant to

a mandatory minimum sentence outlined in 18 Pa.C.S. § 7508(a) and

applicable to the drug offenses due to the weight of the methamphetamine,

2000 grams, involved.        On appeal, we affirmed, Commonwealth v.
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Spadafora, 23 A.3d 1082 (Pa.Super. 2011) (unpublished memorandum),

and      our   Supreme    Court   denied   review   on   September   26,   2011.

Commonwealth v. Spadafora, 29 A.3d 797 (Pa. 2011). On January 13,

2012, Appellant filed a counseled petition for post conviction relief, which

was denied. On appeal, we affirmed. Commonwealth v. Spadafora, 87

A.3d 391 (Pa.Super. 2013), appeal denied, 89 A.3d 1284 (Pa. 2014).

         On June 2, 2014, Appellant filed a second counseled PCRA petition

seeking relief under Alleyne v. United States, 133 S.Ct. 2151 (2013). In

Alleyne, the United States Supreme Court held that any fact, other than the

existence of a prior conviction, that invokes application of a mandatory

minimum sentence must be submitted to a jury and proven beyond a

reasonable doubt.        In Commonwealth v. Mosley, 114 A.3d 1072 (Pa.

2015), we held § 7508(a) was unconstitutional under Alleyne. On July 17,

2015, Appellant’s second PCRA petition was dismissed as untimely filed.

This appeal followed.      Appellant was ordered to file a Pa.R.A.P. 1925(b)

statement, but did not comply with that order. After successfully petitioning

for a remand, he filed a Pa.R.A.P. 1925(b) statement and raised the Alleyne

issue.

         We first note the following.   Appellant’s Statement of the Questions

Involved, which must be included in a brief under Pa.R.A.P. 2116, is

inconsistent with the actual argument raised in his brief.     In his Pa.R.A.P.

2116 statement, Appellant presents this issue: “Whether the trial court erred

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in denying the Appellant’s post-conviction relief act petition where the

Appellant’s plea was not knowing and voluntary where it was revealed after

his plea that the police officers involved in his arrest [were] subsequently

prosecuted for selling narcotics.”1 Appellant’s brief at 5. In the argument

portion of his brief, however, Appellant reiterates the position raised in the

second PCRA petition that his sentence is illegal under Alleyne and that he

should either be afforded the opportunity to withdraw his plea or accorded a

new sentencing hearing.          Id. at 12.      Appellant also notes that Alleyne

issues cannot be waived.           We will consider the Alleyne position, even

though it was not presented in his Statement of Questions Involved,2 since

we agree that challenges to legality of sentences issues cannot be waived.

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super. 2014) (“a

____________________________________________


1
  We also observe that the Commonwealth maintains that this statement is
“outrageously false and not the facts of this case.” Commonwealth’s brief at
6. In footnote one, the Commonwealth asks that Appellant’s brief not be
accessible electronically so that the agents involved herein are not
associated with this untrue statement. The briefs filed in this Court are
available electronically only to court employees, and we cannot control the
dissemination of its contents by other websites.

However, we can allay the Commonwealth’s indignation with the following
observations. The accusation leveled against the agents involved in this
matter has no apparent connection to this case. Furthermore, the charge is
unsupported by the record and was never presented to the lower court. We
can only conclude that it relates to another criminal case and disapprove of
its inclusion in Appellant’s brief herein.
2
   See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated
in the statement of questions involved or is fairly suggested thereby.”).


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challenge to the legality of the sentence [,which includes an Alleyne claim,]

can never be waived and may be raised by this Court sua sponte”), aff’d on

different grounds, 140 A.3d 651 (Pa. 2016).3

       This Court reviews the “denial of PCRA relief to determine whether the

findings of the PCRA court are supported by the record and free of legal

error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa. Super. 2016)

(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). We

must first determine, however, whether Appellant’s June 2, 2014 PCRA

petition was timely filed because that issue implicates our jurisdiction and its

untimeliness was the basis for the PCRA court’s dismissal. If a PCRA petition

is untimely, “neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014)

(citation omitted); see Commonwealth v. Chester, 895 A.2d 520, 522

(Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the trial

court has jurisdiction over the petition. Without jurisdiction, we simply do

not have the legal authority to address the substantive claims.”). We also

note that, even though Appellant’s Alleyne contention cannot be waived, it

nevertheless must be presented in a timely PCRA petition. Commonwealth
____________________________________________


3
  We are aware that our Supreme Court has granted allowance of appeal to
decide this issue, i.e.: “[w]hether a challenge to a sentence pursuant to
Alleyne v. United States,       U.S.    , 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), implicates the legality of the sentence and is therefore non-
waivable.” Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015).



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v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is

always subject to review within the PCRA, [such a claim] must still first

satisfy the PCRA's time limits or one of the exceptions thereto.”).

      Any PCRA petition has to be filed within one year of the date the

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1).       Accordingly, we now

calculate when Appellant’s judgment of sentence became final. “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 time for seeking the review.”       42

Pa.C.S. § 9545(b)(3).     Appellant’s petition for allowance of appeal was

denied on September 26, 2011, and, since he did not seek review with the

United States Supreme Court, his judgment of sentence became final ninety

days thereafter, or on December 25, 2011.          Miller, supra (where our

Supreme Court denies allowance of appeal and no further review is sought, a

defendant’s sentence becomes final when the ninety-day period for filing a

petition for a writ of certiorari expires). Since December 25th is a holiday,

Appellant had until December 26, 2012, to file a timely PCRA petition. The

instant petition, presented on June 2, 2014, is untimely.

      There are three exceptions to the one-year time bar of § 9545:

      (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;
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       (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).

      Herein, Appellant maintains that Alleyne clearly announced a new

constitutional rule and that it should be applied to his case. Appellant’s brief

at 13.   This argument implicates the after-discovered constitutional right

exception. However, our Supreme Court recently ruled that Alleyne does

not apply retroactively. Commonwealth v. Washington, 142 A.3d 810

(Pa. 2016). Since Alleyne is not retroactive, Appellant’s assertion fails to

overcome the PCRA’s time bar. See Miller, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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