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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                          :
CARINA DEE WARNICK,                       :
                                          :
                         Appellant        :
                                          :    No. 1385 WDA 2015

                  Appeal from the PCRA Order August 20, 2015
       in the Court of Common Pleas of Venango County Criminal Division
                        at No(s): CP-61-CR-0000688-2011

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED: March 17, 2016

        Appellant, Carina Dee Warnick, appeals from the order entered in the

Venango County Court of Common Please dismissing her first Post

Conviction Relief Act1 (“PCRA”) petition as untimely.    Appellant avers her

sentence is unconstitutional under Alleyne v. United States, 133 S. Ct.

2151 (2013).2 We affirm.




* Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
   “[I]n Alleyne, the United States Supreme Court found mandatory
minimum sentence enhancements unconstitutional where the facts that
increase a mandatory minimum sentence are not submitted to a jury and
are not required to be found beyond a reasonable doubt.” Commonwealth
v. Melendez-Negron, 123 A.3d 1087, 1091 (Pa. Super. 2015).
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        The relevant procedural history underlying the instant appeal is as

follows. On August 9, 2012, Appellant pleaded guilty to possession with the

intent to manufacture or deliver a controlled substance3 (“PWID”) and

possession of a controlled substance.4      On September 14, 2012, the trial

court imposed a mandatory minimum sentence of five to ten years’

imprisonment pursuant to 18 Pa.C.S. § 7508(a)(3)(iii). Appellant did not file

a direct appeal.

        Appellant filed her first pro se petition for post conviction collateral

relief on February 18, 2015.5         The PCRA court appointed counsel to

represent Appellant on February 24, 2015. Appointed counsel filed a motion

for a hearing6 on March 18, 2015, arguing, in relevant part, Appellant’s

sentence is illegal “due to a holding by the Superior Court of [Pennsylvania]

that mandatory [sentences] are illegal.” Mot. for Hr’g, 3/18/15, at 1. The

PCRA hearing was conducted on August 3, 2015, and on August 20, 2015,

the PCRA court denied Appellant’s PCRA petition. The PCRA court concluded

that she was not entitled to PCRA relief under Alleyne. See PCRA Ct. Op.,

3
    35 P.S. § 780-113(a)(30).
4
    35 P.S. § 780-113(a)(16).
5
 The petition was filed on February 23, 2015. However, the certified record
contains a post-marked envelope with the February 18, 2015 date. Thus,
we consider the petition filed on that date. See Commonwealth v.
Bradley, 69 A.3d 253, 254 n.3 (Pa. Super. 2013).
6
 Counsel only sought argument on Appellant’s petition and did not file an
amended PCRA petition.



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9/28/15, at 5.     Appellant timely filed a counseled notice of appeal on

September 2, 2015, and a concise statement of matter complained on

appeal, pursuant to Pa.R.A.P. 1925(b), on September 22, 2015.

      On appeal, Appellant raises the following issue for our review:

            Whether the PCRA court abused its discretion or
            erred as a matter of law in denying [Appellant’s]
            PCRA petition seeking to find her sentence
            unconstitutional since she was sentenced to a
            mandatory minimum sentence and the statutes
            concerning her conviction have been found
            unconstitutional but not retroactive.

Appellant’s Brief at 5.

      Appellant contends that because Alleyne held mandatory sentences

unconstitutional, she is entitled to relief.   Id. at 11.   “[A]ppellant asserts

that her PCRA issue is a new constitutional right . . . .” Id. at 9. Appellant’s

argument rests on her conclusion “that once something is unconstitutional it

is always unconstitutional.” Id. at 11. However, Appellant concedes, “[t]he

current law is clear that the mandatory sentence cannot be raised from a

PCRA petition.” Id. at 11.

      The standard of review for the denial of a PCRA petition is as follows:

            In reviewing the denial of PCRA relief, we examine
            whether the PCRA court’s determination is supported
            by the record and free of legal error. The scope of
            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 . . .
            . However, this Court reviews the PCRA court’s legal
            conclusions de novo.




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

quotation marks and citations omitted).         “[W]e must first consider the

timeliness of Appellant’s PCRA petition because it implicates the jurisdiction

of this Court and the PCRA court.”      Id. (citation omitted). “If the [PCRA]

petition is determined to be untimely, and no exception has been pled and

proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”   Commonwealth v. Jackson, 30 A.3d. 516, 519 (Pa. Super.

2011) (citation omitted).

      Section 9545 provides the following timeliness requirements:

             (b) Time for filing petition.–

             (1) Any petition under this subchapter, including a
             second or subsequent petition, shall be filed within
             one year of the date the judgment becomes final,
             unless the petition alleges and the petitioner proves
             that:

               (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



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                 section and has been held by that court to apply
                 retroactively.

              (2) Any petition invoking an exception provided in
              paragraph (1) shall be filed within 60 days of the
              date the claim could have been presented.

              (3) For purposes of this subchapter, 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)(1)-(3).

      In this case, Appellant’s judgment of sentence became final on October

15, 2012,7 after the period for taking an appeal expired.        See Pa.R.A.P.

903(a).     Therefore, she had until October 15, 2013, to file a timely PCRA

petition.   See 42 Pa.C.S. § 9545(b)(1).     The instant petition was filed on

February 23, 2015, and is facially untimely.

      In Miller, the appellant filed a facially untimely PCRA petition claiming

that under Alleyne, he met the “time-bar exception” outlined in 42 Pa.C.S.

§ 9545(b)(1)(iii). Miller, 102 A.3d at 993-94. The Miller Court held that

Alleyne did not entitle the appellant to relief because “neither our Supreme

Court, nor the United States Supreme Court has held that Alleyne is to be

applied retroactively to cases in which the judgment of sentence has become

7
  We note the 30th day from Appellant’s sentence was Sunday, October 14,
2012. When considering the timeliness of a filing, “[w]henever the last day
of any such period should fall on a Saturday or Sunday . . . , such day shall
be omitted from the computation.” 1 Pa.C.S. § 1908. Therefore, Appellant
had until October 15, 2012, to file a timely appeal.



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final.” Id. at 995. Hence, the appellant in Miller did not “satisfy the new

constitutional right exception to the time-bar.” Id.

      Instantly, Appellant filed an untimely PCRA petition and claims she is

entitled to constitutional protection set out in Alleyne. Pursuant to Miller,

we agree with the PCRA court and conclude that the instant petition was

untimely, and Alleyne does not entitle Appellant to relief. Id. Based on the

foregoing, we find no error in the court’s denial of Appellant’s PCRA petition.

See id.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2016




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