J-S33044-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
            Appellee                     :
                                         :
      v.                                 :
                                         :
TERRANCE ROBERT MOODY,                   :
                                         :
           Appellant                     :   No. 1640 MDA 2016

                Appeal from the PCRA Order August 22, 2016
              in the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0003426-2000
                                        CP-22-CR-0003913-2000

BEFORE:     BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED JULY 28, 2017

      Terrance Robert Moody (Appellant) appeals from the August 22, 2016

order that dismissed his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In 2001, Appellant pled guilty to sex crimes involving his step-

daughter and another child, was determined to be a sexually violent

predator, and was sentenced to an aggregate term of 12 to 44 years of

imprisonment. This Court denied Appellant relief on direct appeal, and his

judgment of sentence became final in 2005 after our Supreme Court denied

his petition for allowance of appeal. Commonwealth v. Moody, 843 A.2d

402 (Pa. Super. 2004), appeal denied, 882 A.2d 477 (Pa. 2005).




*Retired Senior Judge assigned to the Superior Court.
J-S33044-17


      On March 10, 2016, Appellant filed a motion to vacate his judgment of

sentence, claiming therein that his sentence is illegal under Alleyne v.

United States, 133 S.Ct. 2151 (2013) (holding that a fact which triggers

the imposition of a mandatory minimum sentence is an element of the crime

and must, therefore, be determined beyond a reasonable doubt by a jury).

      The PCRA court determined that Appellant’s motion should be

addressed under the PCRA and appointed counsel.          On July 15, 2016,

counsel filed a motion to withdraw and a letter brief pursuant to

Commonwealth          v.   Turner,   544    A.2d   927   (Pa.   1988),    and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The

PCRA court determined that Appellant’s petition was untimely filed, granted

counsel’s petition to withdraw, and issued notice of its intent to dismiss the

petition without a hearing.   Order, 7/21/2016.    The PCRA court dismissed

the petition by order of August 22, 2016.

      Appellant timely filed a notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant claims that

the Alleyne decision applies retroactively to invalidate his sentence, and

that he “challenged this invalid sentence in a timely manner.” Appellant’s

Brief at 10-12, 17.

      The timeliness of a post-conviction petition is jurisdictional.    See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

                                     -2-
J-S33044-17


a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.   Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

      Generally, a petition for relief under the PCRA, including a second or

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

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available.            42

Pa.C.S. § 9545(b) and (c).

      It is clear that Appellant’s petition is facially untimely: his judgment of

sentence became final in 2005. Without addressing the statute specifically,

Appellant’s argument suggests that he believes his petition satisfies the

following timeliness exception: “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)(iii).

      However, our Supreme Court has held that Alleyne does not apply

retroactively   to   cases   on   collateral   review.     Commonwealth         v.

Washington, 142 A.3d 810 (Pa. 2016).           Even if it did apply retroactively,

Appellant’s 2016 petition was not filed within 60 days of the 2013 Alleyne

decision. See Commonwealth v. Secreti, 134 A.3d 77, 82-83 (Pa. Super.

                                      -3-
J-S33044-17


2016) (noting petitions filed within 60 days of Supreme Court decision

recognizing retroactive application of new constitutional right satisfied

requirement of 42 Pa.C.S. § 9545(b)(2)).           Because Appellant failed to

establish the applicability of a timeliness exception, the PCRA court properly

dismissed the petition for lack of jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/28/2017




                                      -4-
