J-S48038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LAVINCE J. PATE,

                            Appellant                 No. 191 MDA 2014


                    Appeal from the Order January 23, 2014
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0002793-2008


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

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 21, 2014

        Appellant, Lavince J. Pate, appeals pro se from the order dismissing

his second petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        On November 19, 2009, a jury found Appellant guilty of possession

with intent to deliver a controlled substance, unlawful possession of drug

paraphernalia, and firearms not to be carried without a license. 1       His

conviction stems from a traffic stop that took place on April 4, 2008, during

which police seized crack cocaine, a digital scale, and a firearm from under

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   35 P.S. §§ 780-113(a)(30), (32), and 18 Pa.C.S.A. § 6106(a)(1),
respectively.
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the front passenger seat, where Appellant had been sitting. On January 20,

2010, the trial court held a sentencing hearing and determined that

imposition of the five-year mandatory minimum sentence2 was appropriate



                                                                  see also id. at

3-4, 8-9). The court sentenced Appellant to an aggregate term of not less



appeal, and this Court affirmed the judgment of sentence on October 21,

2010.     (See Commonwealth v. Pate, 15 A.3d 537 (Pa. Super. 2010)

(unpublished memorandum)).            Our Supreme Court denied his petition for

allowance of appeal on February 17, 2011. (See Commonwealth v. Pate,

14 A.3d 826 (Pa. 2011)).

        On March 27, 2012, Appellant filed a PCRA petition, which the PCRA

court denied on August 24, 2012.               Appellant appealed, and this Court

                                                            See Commonwealth

v. Pate, 82 A.3d 459 (Pa. Super. 2013) (unpublished memorandum)).

        On August 14, 2013, Appellant, acting pro se, filed the instant PCRA

petition, claiming that his sentence is illegal based on the United States

                                   Alleyne v. United States, 133 S. Ct. 2151,

2155 (2013) (holding that, to comply with dictates of Sixth Amendment,


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2
    See 42 Pa.C.S.A. § 9712.1.



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facts that increase mandatory minimum sentence are elements of offense

and must be submitted to jury and proven beyond reasonable doubt). 3 (See

PCRA Petition, 8/14/13, at 3, 7).              On August 29, 2013, the PCRA court

issued notice of its intention to dismiss the PCRA petition without a hearing.

See Pa.R.Crim.P. 907(1). Appellant did not respond. On October 1, 2013,

the PCRA court dismissed the petition. However, on October 25, 2013, the

court entered a memorandum opinion stating its intention to vacate the

October 1, 2013 order, and directed the Commonwealth to file a response.4

On November 4, 2013, the court entered an order vacating the October 1,

2013 order.     The Commonwealth filed a response on December 16, 2013.

On December 26, 2013, Appellant filed a supplemental PCRA petition. On

December 31, 2013, the court entered a memorandum opinion and Rule 907



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3
  The Alleyne Court overruled previous precedent because, prior to the
decision, state legislatures were free to delegate fact-finding authority
relative to mandatory minimum sentences to sentencing judges.       See
Alleyne, supra at 2155; see also Commonwealth v. Hanson, 82 A.3d
1023, 1039-40 (Pa. 2013).
4
  It appears that the PCRA court took this action in order to consider this
                    Commonwealth v. Munday, 78 A.3d 661 (Pa. Super.
2013), which was filed on October 10, 2013. (See Trial Court Opinion,
12/31/13, at 2-4, 6). The Munday court considered Alleyne in the context
of a direct appeal, and determined that
stand because the facts necessary for imposition of the mandatory minimum
sentence were not determined by the factfinder to have been proven beyond
a reasonable doubt. See Munday, supra at 662, 666.




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J-S48038-14



notice of its intent to dismiss the petition. On January 23, 2014, the court

entered its order dismissing the PCRA petition. This timely appeal followed.5

       Appellant raises the following issues for our review:

      1.     Did the [PCRA] [c]ourt erred [sic] in applying the
       mandatory minimum where the factors that support the
       imposition of 42 Pa.C.S. § 9712.1 where [sic] not submitted to
       the jury[?]

      2.      Is 42 Pa.C.S. § 9712.1 facially invalid[?]

      3.     Whether the [PCRA] [c]ourt is incorrect and inaccurate in
      its decision that Alleyne v. [UNITED] STATES, 133 S.Ct. 2151
      (2013), is not to be applied retroactively[?]



       Our standard of review of a trial court order granting or denying
       relief under the PCRA calls upon us to determine whether the
       determination of the PCRA court is supported by the evidence of

       not be disturbed unless there is no support for the findings in the
       certified record.

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations and quotation marks omitted).

       B

consider whether this appeal is properly before us.

       A PCRA petition, including a second or subsequent one, must be


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5
  The PCRA court ordered Appellant to file a Rule 1925(b) statement of
errors, and he timely complied on February 24, 2014. The court filed a Rule
1925(a) opinion on March 12, 2014. See Pa.R.A.P. 1925.




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      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.          42 Pa.C.S.[A.] §

      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.       The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).



18, 2011, when his time to file a petition for writ of certiorari with the United

States Supreme Court expired.      See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §

9545(b)(3). Because Appellant filed the instant petition on August 14, 2013,

it is untimely on its face, and the PCRA court lacked jurisdiction to review it

unless he pleaded and proved one of the statutory exceptions to the time-

bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

      (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




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       (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.

Id. at § 9545(b)(1)(i)-(iii).

untimely, and no exception has been pled and proven, the petition must be

dismissed without a hearing because Pennsylvania courts are without

                                                             Commonwealth v.

Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), appeal denied, 47 A.3d 845

(Pa. 2012) (citation omitted). In addition, a PCRA petition invoking one of

these statutory exceptions must           be filed within 60 days of the date the

                                                      § 9545(b)(2).

       Here, Appellant claims the benefit of the exception at 42 Pa.C.S.A. §

9545(b)(1)(iii),      alleging     a     newly-recognized,   retroactively-applied



decision in Alleyne, supra.            (See                           4-15).6   We

disagree.

       Initially, we note that the exception set forth in section 9545(b)(1)(iii)



recognized by the Supreme Court of the United States or the Supreme Court
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6
 The United States Supreme Court decided Alleyne on June 17, 2013, and
Appellant filed the instant PCRA petition fifty-eight days later, on August 14,
2013. See 42 Pa.C.S.A. § 9545(b)(2).




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of Pennsylvania after the time period provided in this section and has been

held by that court to apply retroactively.         42 Pa.C.S.A. § 9545(b)(1)(iii)

(emphasis added).

     Subsection (iii) of section 9545 has two requirements. First, it
     provides that the right asserted is a constitutional right that was
     recognized by the Supreme Court of the United States or th[e
     Pennsylvania] Supreme Court after the time provided in this

                            retroactively. Thus, a petitioner must prove



     action has already occurred, i.e.
     the new constitutional right to be retroactive to cases on
     collateral review. By employing the past tense in writing this
     provision, the legislature clearly intended that the right was
     already recognized at the time the petition was filed.

Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011), appeal

denied, 38 A.3d 823 (Pa. 2012) (citations omitted).

     In the instant case, although Appellant claims the applicability of

section 9545(b)(1)(iii) based on Alleyne, the United States Supreme Court

has not held that Alleyne applies retroactively to cases on collateral review.

                                        that there is a new constitutional right

and that the right has been held by that court to appl

Garcia,     supra   at   1063   (citations   and   quotation   marks   omitted).

Accordingly, Appellant has not met his burden of proving his untimely



time-bar.    See Jones, supra at 17.         The PCRA court properly dismissed




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                                -bar

pleaded or proven.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




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