J-S59004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ELIJAH ALEKNAIM ISHMAIL,

                            Appellant                  No. 339 EDA 2016


                  Appeal from the PCRA Order January 6, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004415-2007


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 18, 2016

        Appellant, Elijah Aleknaim Ishmail, appeals pro se from the post-

conviction court’s January 6, 2016 order denying, as untimely, his petition

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm.

        The PCRA court set forth the pertinent procedural history of Appellant’s

case, as follows:

               On January 25, 2008[,] [Appellant] appeared before the
        Honorable Barry C. Dozer and entered a negotiated guilty plea to
        [possession with intent to deliver (PWID)] … and [r]esisting
        [a]rrest….    Immediately thereafter, the [c]ourt imposed a
        sentence, consistent with the terms of the negotiated plea, to a
        state term of 18 to 36 months[’] confinement [for] PWID,
        followed by 2 years of consecutive state probation [for]
        [r]esisting [a]rrest. No post[-]sentence motions were filed,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       including any motion requesting withdrawal of [Appellant’s]
       guilty plea. No appeal was filed to the Pennsylvania Superior
       Court. Thus, [Appellant’s] judgment of sentence became final
       on February 24, 2008.

              [Appellant] subsequently violated the terms of his
       probation when PA Parole authorities conducted a search of his
       home and found two firearms.           [Appellant] was arrested,
       ultimately convicted and sentenced to a 5-10 year state term of
       confinement, plus 4 years of consecutive state probation. As a
       result of [Appellant’s] new conviction, a [revocation of probation]
       [h]earing was held. Following the hearing, the [c]ourt sentenced
       [Appellant] to a 1-2 year state term to run consecutive to the
       sentence imposed on the firearms case. A timely direct appeal
       to the Superior Court followed at 1108 EDA 2013. On December
       4, 2013, the Superior Court affirmed [Appellant’s] judgment of
       sentence. [Commonwealth v. Ishmail, 93 A.3d 500 (Pa.
       Super. 2013) (unpublished memorandum). Appellant did not
       petition for allowance of appeal with our Supreme Court.]

              On August 6, 2015[, Appellant] filed a pro se PCRA
       [petition] and PCRA [c]ounsel was appointed to represent
       [him]…. After an exhaustive review of the record, on December
       7, 2015, PCRA counsel filed a [Turner/Finley1] “No Merit”
       letter. On December 10, 2015[,] this [c]ourt served [Appellant]
       with a Twenty Day Notice of Intent to Dismiss [his] PCRA
       Petition without a hearing.    Thereafter, [Appellant’s] PCRA
       [petition] was dismissed on January 6, 2016 and this timely
       appeal followed.

PCRA Court Opinion (PCO), 3/10/16, at 1-2 (footnotes omitted).

       Appellant complied with the PCRA court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. In his pro se

brief to this Court, Appellant raises six issues for our review.             See

Appellant’s Brief at 6 (unnumbered). Before we may address any of those
____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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claims, however, we must examine the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.     See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

sentence becomes final, unless one of the following exceptions set forth in

42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

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

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).



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       Here, Appellant’s judgment of sentence became final on January 3,

2014. Thus, his petition filed on August 6, 2015 is patently untimely, and

for this Court to have jurisdiction to review the merits thereof, Appellant

must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b). Appellant does not present

any coherent or meaningfully developed argument in this regard. Instead,

from what we can discern, he primarily raises claims of ineffective assistance

of counsel, with no discussion of how those assertions meet a timeliness

exception.     It is well-established that ineffective assistance of counsel

claims,   on    their   face,    do    not   meet    a   timeliness    exception.     See

Commonwealth            v.   Wharton,        886    A.2d   1120,      1127   (Pa.   2005).

Throughout his brief, Appellant also intersperses arguments challenging the

legality of his sentence, the voluntariness of his guilty plea, and the legality

of a search of his vehicle.           Again, Appellant offers no explanation of how

these claims satisfy a timeliness exception.2
____________________________________________


2
  We note that in his pro se PCRA petition, Appellant attempted to invoke the
timeliness exception of section 9545(b)(1)(iii) based on the United States
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151,
2163 (2013) (holding that “facts that increase mandatory minimum
sentences must be submitted to the jury” and found beyond a reasonable
doubt),    and/or    the   Pennsylvania    Supreme     Court’s  decision   in
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (holding the
mandatory minimum sentencing statute of 18 Pa.C.S. § 6317 (Drug-free
school zones) is unconstitutional in light of Alleyne). Appellant seemingly
abandons this claim on appeal. Nevertheless, we note that the record does
not indicate that any mandatory minimum sentence was imposed in
Appellant’s case, thus making the rule announced in Alleyne completely
(Footnote Continued Next Page)


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J-S59004-16



      In sum, Appellant has not met his burden of pleading and proving the

applicability of a timeliness exception. Therefore, the PCRA court did not err

in dismissing his untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




                       _______________________
(Footnote Continued)

inapplicable. Additionally, even if he were serving a mandatory term,
Appellant cannot rely on Alleyne to satisfy the ‘new retroactive right’
exception to the PCRA timeliness requirements because the United States
Supreme Court has not held that Alleyne applies retroactively, and our
Supreme Court has expressly held that it does not apply to cases on
collateral review. See Commonwealth v. Washington, 142 A.3d 810 (Pa.
2016). Moreover, Appellant cannot rely on Hopkins to meet the timeliness
exception of section 9545(b)(1)(iii), as that decision did not announce a new
rule, but merely applied the rule created in Alleyne.



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