J-S50023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN COLE

                            Appellant                No. 1238 EDA 2015


                   Appeal from the PCRA Order April 13, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003064-2003
                                          CP-15-CR-0003065-2003


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                            FILED AUGUST 26, 2015

       Appellant, Shawn Cole, appeals from the April 13, 2015 order,

dismissing as untimely, his fifth petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.          After careful

review, we affirm.

       On April 21, 2004, the trial court sentenced Appellant to an aggregate

term of 17 to 34 years’ imprisonment, following his convictions for eight

counts of possession with intent to deliver, two counts of possession of drug

paraphernalia, seven counts of criminal use of a communication facility, and

one count of possession of a firearm prohibited.1         This Court affirmed

____________________________________________
1
 35 P.S. §§ 780-113(a)(30), 780-113(a)(32), 18 Pa.C.S.A. §§ 7512(a) and
6105(a), respectively.
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Appellant’s judgment of sentence on July 15, 2005.                  Commonwealth v.

Cole, 883 A.2d 685 (Pa. Super. 2005) (unpublished memorandum), appeal

dismissed, 897 A.2d 1165 (Pa. 2006).                     Our Supreme Court granted

Appellant’s    allocatur    petition    in     part,   but   dismissed   the   appeal   as

improvidently granted on April 21, 2006. Id. Appellant did not seek a writ

of certiorari from the Supreme Court of the United States; therefore, his

judgment of sentence became final on July 20, 2006, when the filing period

for such a petition expired.2          See 42 Pa.C.S.A. § 9545(b)(3) (stating, “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


____________________________________________
2
  Appellant timely filed his first PCRA petition on March 20, 2007, which the
PCRA court dismissed on August 5, 2008, after two evidentiary hearings,
and this Court affirmed on March 31, 2010. Commonwealth v. Cole, 996
A.2d 538 (Pa. Super. 2010) (unpublished memorandum). Appellant filed his
second PCRA petition on May 11, 2010, which the PCRA court dismissed on
December 20, 2010, and this Court affirmed on June 30, 2011.
Commonwealth v. Cole, 31 A.3d 760 (Pa. Super. 2011) (unpublished
memorandum). Appellant’s third PCRA petition was filed on July 27, 2011,
the PCRA court dismissed the same on August 29, 2011, this Court affirmed
on March 9, 2012, and our Supreme Court denied allocatur on September
11, 2012. Commonwealth v. Cole, 47 A.3d 1239 (Pa. Super. 2012)
(unpublished memorandum), appeal denied, 53 A.3d 49 (Pa. 2012).
Appellant’s fourth PCRA petition was filed on November 9, 2012, the PCRA
court dismissed it on December 4, 2012, this Court affirmed said dismissal
on July 24, 2013, and our Supreme Court denied allowance of appeal on
January 6, 2014. Commonwealth v. Cole, 82 A.3d 1077 (Pa. Super.
2013) (unpublished memorandum), appeal denied, 84 A.3d 1061 (Pa.
2014).




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review[]”); U.S. Sup. Ct. R. 13(1) (stating “a petition for a writ of certiorari

to review a judgment in any case … is timely when it is filed with the Clerk of

this Court within 90 days after entry of the judgment[]”).               As a result,

Appellant had until July 21, 2007 to timely file a PCRA petition. 3 Appellant

filed the instant petition on October 15, 2014; therefore, it was facially

untimely.         However,      Appellant      argues   this   Court’s   decision    in

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),

satisfies the newly-discovered fact exception to the time-bar at Section

9545(b)(1)(ii) and the new constitutional right exception to the time-bar at

Section 9545(b)(1)(iii). Appellant’s Brief at 2-3.

       Our Supreme Court has held that judicial decisions are not “facts” for

the purposes of Section 9545(b)(1)(ii). Commonwealth v. Watts, 23 A.3d

980, 986-987 (Pa. 2011).             In addition, Newman did not purport to

announce      a   new    constitutional     right,   much   less   one   that   applied

retroactively. Rather, in Newman, this Court held that all of Pennsylvania’s

mandatory minimum statutes, except those that rely on the fact of a prior

conviction, are facially unconstitutional because their various subsections




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3
  We note that July 20, 2007 was a Sunday; therefore, Appellant’s PCRA
petition was due by Monday, July 21, 2007. See 1 Pa.C.S.A. § 1908
(stating, “[if] the last day of any such period shall fall on Saturday or
Sunday … such day shall be omitted from the computation[]”).




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could not be severed from each other.4           Newman, supra at 101-102.

However, even if Newman did announce a new retroactive constitutional

right, Appellant’s time-bar argument would still fail in this case, as this Court

lacks the judicial power to make such determinations for the purposes of the

PCRA time-bar.5       See 42 Pa.C.S.A. § 9545(b)(1)(iii) (allowing a time-bar

exception for “a constitutional right that was recognized by the Supreme

Court of the United States or the Supreme Court of Pennsylvania … and has

been held by that court to apply retroactively[]”) (emphasis added). As a

result, the PCRA court lacked jurisdiction to consider the merits of

Appellant’s claims.

       Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s fifth PCRA petition as untimely. Accordingly, the PCRA

court’s April 13, 2015 order is affirmed.

       Order affirmed.




____________________________________________
4
   Our Supreme Court recently agreed with Newman’s conclusion.
Commonwealth v. Hopkins, --- A.3d ---, 2015 WL 3949099, at *1, 10,
11, 13 (Pa. 2015). However, our Supreme Court did not hold that its rule
was to be retroactively applied.
5
  To the extent Appellant’s brief could be construed as arguing Alleyne v.
United States, 133 S. Ct. 2151 (2013), satisfies the new constitutional
right exception, this Court has rejected that argument. Commonwealth v.
Miller, 102 A.3d 988, 995 (Pa. Super. 2014).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




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