J-S19038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
              v.                          :
                                          :
 TODD M. HALL                             :
                                          :
                    Appellant             :
                                          :       No. 1032 EDA 2017


               Appeal from the PCRA Order February 10, 2017
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos.: CP-51-CR-0014037-2010
                           CP-51-CR-0014049-2010


BEFORE:    SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED MAY 07, 2018

      Appellant, Todd M. Hall, appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, as untimely. We affirm.

      The relevant facts and procedural history of this case are as follows. On

September 19, 2011, Appellant was convicted of two counts each of

conspiracy, possessing an instrument of a crime, and carrying a firearm

without a license, and one count each of aggravated assault, robbery, and

persons not to possess a firearm. The charges stem from Appellant’s robbery

of a victim at gunpoint, and his firing of his weapon at a pursuing vehicle. On

November 4, 2011, the trial court sentenced Appellant to a term of not less

than eighteen nor more than thirty-six years’ incarceration.       This Court



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* Retired Senior Judge assigned to the Superior Court.
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affirmed the judgment of sentence on April 23, 2013. Appellant did not file a

petition for allowance of appeal in the Pennsylvania Supreme Court.

       Appellant, acting pro se, filed the instant PCRA petition on November

30, 2015. Appointed counsel filed an amended petition on July 8, 2016. The

PCRA court entered its order dismissing the petition on February 10, 2017.

This timely1 appeal followed.2

       Appellant raises the following issues for our review:

       1. Should this matter be remanded to the PCRA court for a hearing
       on the merits and restoration of [Appellant’s] right to file a petition
       for allowance of appeal to the Superior [sic] Court on his direct
       appeal?

       2. Should the proposed quash be denied and should this appeal
       be determined on the merits[?3]

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).



____________________________________________


1 The deadline for filing a timely notice of appeal was March 13, 2017; the
docket reflects a file date of March 16, 2017 for Appellant’s notice of appeal.
See Pa.R.A.P. 903(a); 1 Pa.C.S.A. § 1908. However, we deem Appellant’s
pro se notice of appeal, dated March 12, 2017 (with accompanying certificate
of service bearing the same date), timely filed pursuant to the prisoner
mailbox rule. See Commonwealth v. Jordan, 2018 WL 1476241, at *1 n.3
(Pa. Super. filed Mar. 27, 2018) (explaining that pro se prisoner’s document
is deemed filed on date he delivers it to prison authorities for mailing).

2 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on May 22, 2017. The PCRA court entered an opinion
on August 25, 2017. See Pa.R.A.P. 1925.

3 In this issue, Appellant maintains that this appeal is timely pursuant to the
prisoner mailbox rule. (See Appellant’s Brief, at 12, 23; see also Response
to Rule to Show Cause, 5/24/17, at 5 ¶ 9). Because we have applied the
prisoner mailbox rule in this case, we need not address this claim further.

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      We begin by addressing the timeliness of Appellant’s petition.

             . . . [A] PCRA petition, including a second or subsequent
      petition, must be filed within one year of the date that judgment
      becomes final. A judgment becomes final for purposes of the
      PCRA 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.

             It is well-settled that the PCRA’s time restrictions are
      jurisdictional in nature. As such, this statutory time-bar implicates
      the court’s very power to adjudicate a controversy and prohibits
      a court from extending filing periods except as the statute
      permits. Accordingly, the period for filing a PCRA petition is not
      subject to the doctrine of equitable tolling; instead, the time for
      filing a PCRA petition can be extended only by operation of one of
      the statutorily enumerated exceptions to the PCRA time-bar.

             The exceptions to the PCRA time-bar are found in Section
      9545(b)(1)(i)–(iii) . . . and it is the petitioner’s burden to allege
      and prove that one of the timeliness exceptions applies. Whether
      a petitioner has carried his burden is a threshold inquiry that must
      be resolved prior to considering the merits of any claim. . . .

Commonwealth v. Robinson, 139 A.3d 178, 185-86 (Pa. 2016) (quotation

marks and citations omitted).

      In the instant case, Appellant’s judgment of sentence became final on

May 23, 2013, when his time to file a petition for allowance of appeal with our

Supreme Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3).

Therefore, he had until May 23, 2014, to file a timely PCRA petition. See 42

Pa.C.S.A. § 9545(b)(1).     Because Appellant filed the instant petition on

November 30, 2015, 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).


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      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

             (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.

      Any petition invoking an exception must “be filed within 60 days of the

date the claim could have been presented.”           Id. at § 9545(b)(2).    “If the

petition is untimely and the petitioner has not pled and proven an exception,

the petition must be dismissed without a hearing because Pennsylvania courts

are   without   jurisdiction   to   consider   the     merits   of   the   petition.”

Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal

denied, 170 A.3d 1007 (Pa. 2017) (citation omitted).

      Here, Appellant has not established the applicability of any of the three

exceptions to the PCRA’s time-bar. (See Appellant’s Brief, at 13-22). Instead,

he raises ineffective assistance of counsel claims, alleging, inter alia, that

direct appeal counsel was ineffective for failing to file a petition for allowance

of appeal with our Supreme Court. (See id. at 4, 13, 17, 22). Appellant



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acknowledges that his PCRA petition is untimely, and “requests this [] Court

to revisit the jurisdictional bar of the [PCRA] in light of the paramount

Constitutional right to appeal.” (Id. at 19; see id. at 14). He concedes that

“[t]he effect of existing case law is that the jurisdictional limits of the PCRA”

bar review of his claims, but asks that we nevertheless review them “[a]s a

matter of public concern and individual justice[.]” (Id. at 22; see id. at 17,

21). This we cannot do.

      As previously stated, “the period for filing a PCRA petition is not subject

to the doctrine of equitable tolling; instead, the time for filing a PCRA petition

can be extended only by operation of one of the statutorily enumerated

exceptions to the PCRA time-bar.” Robinson, supra at 185 (citation omitted;

emphasis added). Furthermore, “[t]his Court is bound by existing precedent

under the doctrine of stare decisis and continues to follow controlling

precedent as long as the decision has not been overturned by our Supreme

Court.” Commonwealth v. Slocum, 86 A.3d 272, 278 n.9 (Pa. Super. 2014)

(citation omitted). Thus, we are bound by existing precedent, and decline

Appellant’s invitation to reconsider it.

      Regarding Appellant’s claims of ineffective assistance of counsel, (see

Appellant’s Brief, at 12-22), “[i]t is well settled that allegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA.” Commonwealth v Wharton, 886 A.2d 1120,

1127 (Pa. 2005) (citations omitted).




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       Finally, we note with respect to Appellant’s passing, vague assertion that

his sentence is illegal pursuant to Alleyne v. United States, 133 S.Ct. 2151

(2013),4 that such claim does not allow him to circumvent the PCRA’s

timeliness requirements. (See Appellant’s Brief, at 13, 22).5 It is well settled

that, “an appellant must present an illegal sentencing claim in a timely PCRA

petition over which this Court has jurisdiction.”          Commonwealth v.

Whitehawk, 146 A.3d 266, 270 (Pa. Super. 2016) (citations omitted)

(explaining that such claim must satisfy PCRA’s time limits or exception

thereto). Further, our Supreme Court has addressed the retroactive effect of

Alleyne, and has expressly held “that Alleyne does not apply retroactively to

cases pending on collateral review[.]” Commonwealth v. Washington, 142

A.3d 810, 820 (Pa. 2016). Thus, Appellant’s claim based on Alleyne fails.

       In sum, we conclude Appellant has not met his burden of proving that

his untimely PCRA petition fits within one of the three exceptions to the PCRA’s

time-bar. See Robinson, supra at 186. Accordingly, we affirm the order of

the PCRA court.



____________________________________________


4 In Alleyne, the Supreme Court of the United States held that the Sixth
Amendment requires that facts that increase a mandatory minimum sentence
for an offense must be submitted to the jury and proven beyond a reasonable
doubt. See Alleyne, supra at 2163.

5This undeveloped assertion was not included in Appellant’s statement of the
questions involved or fairly suggested thereby. (See Appellant’s Brief, at 4);
Pa.R.A.P. 2116(a), 2119(a). We will briefly address it for the sake of
completeness.

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J-S19038-18



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/18




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