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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                :
                               :
EDWARD GALLOWAY SCHWARTZ, JR., :                    No. 977 EDA 2016
                               :
                 Appellant     :


                  Appeal from the PCRA Order, March 9, 2016,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0001551-2009


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 23, 2016

        Edward Galloway Schwartz, Jr. appeals, pro se, from the order of

March 9, 2016, dismissing his second PCRA1 petition as untimely. We affirm.

        On December 22, 2009, appellant entered a negotiated guilty plea to

eight counts of sexual abuse of children -- possession of child pornography,

and one count of criminal use of a communication facility. On May 5, 2010,

the trial court imposed the agreed-upon sentence of 12½ to 25 years’

incarceration, followed by 5 years of probation. The remaining charges were

nolle prossed. The trial court found that appellant was a sexually violent




* Former Justice specially assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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predator (“SVP”) under Megan’s Law.        Appellant did not file post-sentence

motions or a direct appeal.

      On February 9, 2012, appellant filed a pro se PCRA petition alleging

that trial counsel was ineffective for failing to file a direct appeal, despite his

request.   Counsel was appointed and filed a Turner/Finley2 “no merit”

letter, explaining why the petition was untimely.          In addition to being

untimely, appellant failed to present any evidence that he requested counsel

to file an appeal or that there were non-frivolous grounds for appeal.

(Turner/Finley letter, 4/17/12 at 3; Docket #33.)             On July 5, 2012,

following 20-day notice pursuant to Pa.R.Crim.P. 907, the petition was

dismissed and counsel was permitted to withdraw.           No appeal was taken

from that order.

      On May 27, 2014, appellant filed a pro se motion for reconsideration

of sentence, which was dismissed as untimely on June 3, 2014. Appellant

filed the instant PCRA petition, his second, on August 31, 2015, alleging that

his sentence was illegal under Alleyne v. United States,            U.S.     , 133

S.Ct. 2151 (2013) (holding that any fact that, by law, increases the penalty

for a crime is required to be treated as an element of the offense, submitted

to a jury, rather than a judge, and found beyond a reasonable doubt).

Counsel was appointed and filed a petition to withdraw and Turner/Finley



2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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“no merit” letter on February 1, 2016. On February 5, 2016, the PCRA court

issued Rule 907 notice, and counsel was permitted to withdraw.          On

March 9, 2016, appellant’s petition was dismissed. Appellant filed a timely

pro se notice of appeal on March 28, 2016. On March 29, 2016, appellant

was ordered to file a concise statement of errors complained of on appeal

within 21 days pursuant to Pa.R.A.P. 1925(b).        Appellant complied on

April 14, 2016; and on April 18, 2016, the PCRA court filed a Rule 1925(a)

opinion.

           This Court’s standard of review regarding an order
           denying a petition under the PCRA is whether the
           determination of the PCRA court is supported by the
           evidence of record and is free of legal error.
           Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
           795, 799 n. 2 (2005). The PCRA court’s findings will
           not be disturbed unless there is no support for the
           findings in the certified record. Commonwealth v.
           Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

           [T]he right to an evidentiary hearing on a
           post-conviction     petition   is    not    absolute.
           Commonwealth v. Jordan, 772 A.2d 1011, 1014
           (Pa.Super. 2001). It is within the PCRA court’s
           discretion to decline to hold a hearing if the
           petitioner’s claim is patently frivolous and has no
           support either in the record or other evidence. Id.
           It is the responsibility of the reviewing court on
           appeal to examine each issue raised in the PCRA
           petition in light of the record certified before it in
           order to determine if the PCRA court erred in its
           determination that there were no genuine issues of
           material fact in controversy and in denying relief
           without     conducting    an   evidentiary   hearing.


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            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, 1239-

1240 (Pa.Super. 2004).

      Here, appellant’s judgment of sentence became final on June 4, 2010,

when the deadline passed for filing a notice of appeal.              See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P., Rule 903, 42 Pa.C.S.A.                As such, the instant

petition, appellant’s second, is manifestly untimely unless one of the three

statutory exceptions to the PCRA’s one-year jurisdictional time-bar applies.

Appellant asserts that his sentence is illegal under Alleyne and its progeny.

However, “even claims that a sentence was illegal, an issue deemed

incapable   of   being   waived,     are    not    beyond    the   jurisdictional     time

restrictions.” Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa.Super.

2007), citing Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999);

Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).                             Therefore,

appellant’s illegal sentencing claim does not operate as an independent

exception to the PCRA’s jurisdictional time-bar.

      To the extent that appellant is arguing that the after-recognized

constitutional   right   exception    applies,      enumerated      at      42   Pa.C.S.A.

§ 9545(b)(1)(iii), he is mistaken. Recently, our supreme court decided that

Alleyne does not apply retroactively to collateral attacks on mandatory

minimum     sentences     advanced     in    post-conviction       relief    proceedings.

Commonwealth v. Washington,                       A.3d      , 2016 WL 3909088 (Pa.


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July 19, 2016).    Furthermore, it is well settled that Alleyne does not

invalidate a mandatory minimum sentence when presented in an untimely

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

     Appellant also appears to challenge the trial court’s SVP designation.

(Appellant’s brief at 4.) This issue was not raised in his PCRA petition and

cannot be raised for the first time on appeal.    See Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (“It is well-settled that issues

not raised in a PCRA petition cannot be considered on appeal.” (quotation

marks and citations omitted)); 42 Pa.C.S.A. § 9544(b).     At any rate, the

PCRA does not provide relief from collateral consequences of a criminal

conviction. 42 Pa.C.S.A. § 9542. Because the registration requirements of

Megan’s Law are collateral consequences of appellant’s conviction and are

not considered part of his sentence, appellant’s challenge to his SVP

classification falls outside the ambit of the PCRA. See Commonwealth v.

Masker, 34 A.3d 841 (Pa.Super. 2011) (en banc), appeal denied, 47 A.3d

846 (Pa. 2012) (a challenge to the classification of the defendant as an SVP

is not a challenge to the conviction or sentence and, therefore, is not

cognizable under the PCRA).

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2016




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