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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
PHILLIP JOHN PEACE,                        :          No. 196 EDA 2015
                                           :
                          Appellant        :


               Appeal from the Order Entered December 9, 2014,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0004715-2004


BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 15, 2016

        Phillip John Peace appeals, pro se, from the order of December 9,

2014, denying his petition for writ of habeas corpus, which the court

properly treated as a serial PCRA1 petition.2 We affirm.

        In a prior memorandum, we set forth the procedural history of this

matter as follows:

                    Following a jury trial, [appellant] was convicted
              of two counts of criminal attempt to commit
              homicide, possessing instruments of crime, firearms
              not to be carried without a license, and recklessly
              endangering another person.[Footnote 1]              On

1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
  Appellant’s petition for writ of habeas corpus is properly treated as a
serial PCRA petition, since the PCRA is the sole means by which a defendant
may obtain collateral relief and subsumes the remedy of habeas corpus
with respect to remedies offered under the Post-Conviction Relief Act.
42 Pa.C.S.A. § 9542.
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           June 20, 2005, the trial court sentenced him to an
           aggregate term of incarceration of 156 months to
           360 months.

                 [Footnote 1] 18 Pa.C.S.A. §§ 901, 907,
                 6106 and 2705, respectively.

                  [Appellant] filed post-sentence motions, which
           the trial court denied on October 20, 2005. He then
           filed a direct appeal challenging the sufficiency of the
           evidence. On July 11, 2006, this Court affirmed the
           judgment of sentence.           [Appellant] then filed a
           pro se PCRA petition, and counsel was appointed to
           represent him.       PCRA counsel filed an amended
           petition claiming appellate counsel was ineffective for
           failing to file a petition for allowance of appeal to our
           Supreme Court. Following an evidentiary hearing,
           [appellant] was granted leave to file a petition for
           appeal nunc pro tunc. That petition was denied,
           and on March 19, 2009, [appellant] filed another
           PCRA petition.       Counsel was again appointed to
           represent him. On July 21, 2009, counsel filed an
           amended PCRA petition.

                  On August 4, 2009, the PCRA court gave notice
           of its intention to dismiss [appellant]’s PCRA petition
           without a hearing pursuant to Pa.R.Crim.P. 907.
           [Appellant] filed an objection. On September 14,
           2009, the PCRA court dismissed the petition.
           [Appellant] appeals.

Commonwealth v. Peace, No. 2890 EDA 2009, unpublished memorandum

at 1-2 (Pa.Super. filed July 26, 2010.)        This court affirmed, and on

January 25, 2011, the Pennsylvania Supreme Court denied allowance of

appeal. Commonwealth v. Peace, 16 A.3d 503 (Pa. 2011).

     On October 9, 2014, appellant filed a petition for writ of habeas

corpus, which was denied on December 9, 2014. A timely pro se notice of

appeal was filed on December 29, 2014. Appellant complied with Pa.R.A.P.,


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Rule 1925(b), 42 Pa.C.S.A., and the PCRA court has filed a Rule 1925(a)

opinion.

      Appellant has raised the following issues for this court’s review:

            1.     DID THE LOWER COURT HAVE JURISDICTION,
                   STATUTORY      AND     CONSTITUTIONAL
                   AUTHORITY TO IMPOSE SENTENCES IN THIS
                   CASE?

            2.     ARE THE DECISIONS IN ALLEYNE, NEWMAN,
                   and HOPKINS RETROACTIVE IN THIS CASE?

            3.     UNDER PENNSYLVANIA STATUTE [SIC] LAW,
                   AS  FOUND    UNCONSTITUTIONAL,    IS   A
                   SENTENCE IMPOSED WHERE SUCH SENTENCE
                   FACTUALLY APPLIES ILLEGAL REGARDLESS OF
                   WHETHER    THE   COURT    IMPOSED    THE
                   STATUTORY MANDATORY MINIMUM?

            4.     DID THE COURT SUSPEND THE WRIT OF
                   HABEAS CORPUS?

            5.     DID THE PCRA COURT HAVE JURISDICTION TO
                   GRANT APPELLANT PCRA DUE PROCESS AND
                   RELIEF;  BUT   DENIED   APPELLANT   DUE
                   PROCESS AND ACCESS TO COURT IN
                   VIOLATION [OF] U.S. CONSTITUTION[AL]
                   AMENDMENTS 1, 5, 6, 14?

Appellant’s brief at 4.

            The standard of review for an order denying
            post-conviction relief is limited to whether the record
            supports the PCRA court’s determination, and
            whether that decision is free of legal error. The
            PCRA court’s findings will not be disturbed unless
            there is no support for the findings in the certified
            record. Furthermore, a petitioner is not entitled to a
            PCRA hearing as a matter of right; the PCRA court
            can decline to hold a hearing if there is no genuine
            issue concerning any material fact and the petitioner
            is not entitled to post-conviction collateral relief, and


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           no purpose     would   be   served   by   any   further
           proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

           Pennsylvania law makes clear no court has
           jurisdiction to hear an untimely PCRA petition.
           Commonwealth v. Robinson, 575 Pa. 500, 508,
           837 A.2d 1157, 1161 (2003). The most recent
           amendments to the PCRA, effective January 16,
           1996, provide a PCRA petition, including a second or
           subsequent petition, shall be filed within one year of
           the date the underlying judgment becomes final.
           42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
           Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
           Commonwealth v. Vega, 754 A.2d 714, 717
           (Pa.Super. 2000). A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

           The three statutory exceptions to the timeliness
           provisions in the PCRA allow for very limited
           circumstances under which the late filing of a
           petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
           To invoke an exception, a petition must allege and
           prove:

           (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;



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           (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.A. § 9545(b)(1)(i)-(iii). “As such, when a
           PCRA petition is not filed within one year of the
           expiration of direct review, or not eligible for one of
           the three limited exceptions, or entitled to one of the
           exceptions, but not filed within 60 days of the date
           that the claim could have been first brought, the trial
           court has no power to address the substantive merits
           of a petitioner’s PCRA claims.” Commonwealth v.
           Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
           (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080.

     Instantly, the Supreme Court of Pennsylvania denied allowance of

appeal on March 12, 2008. Commonwealth v. Peace, No. 875 MAL 2007

(per curiam). Therefore, appellant’s judgment of sentence became final for

PCRA purposes on or about June 10, 2008, upon expiration of the time to file

a petition for writ of certiorari with the United States Supreme Court. See

42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13, 28 U.S.C.A. (petition for

writ of certiorari is deemed timely when it is filed within 90 days after

denial of allocatur).    Appellant filed the current petition, his second, on




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October 9, 2014, over six years later. Therefore, appellant’s current PCRA

petition is manifestly untimely on its face.

        Appellant argues that his sentence was illegal in light of Alleyne v.

United States,        U.S.    , 133 S.Ct. 2151 (2013), which held that “[a]ny

fact that, by law, increases the penalty for a crime is an ‘element’ that must

be submitted to the jury and found beyond a reasonable doubt.”           Id. at

2155.     Challenges to the legality of the sentence are never waived.

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005) (en banc),

appeal denied, 917 A.2d 844 (Pa. 2007). This means that a court may

entertain a challenge to the legality of the sentence, so long as the court has

jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the

filing of a timely PCRA petition. Id.

        Applying Alleyne, this court has held that certain mandatory minimum

sentencing provisions are unconstitutional because they permit the trial

court, as opposed to the jury, to increase a defendant’s minimum sentence

based upon a preponderance of the evidence standard.                See, e.g.,

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

appeal denied, 121 A.3d 496 (Pa. 2015) (42 Pa.C.S. § 9712.1 (relating to

drug offenses committed with firearms), does not pass constitutional muster

under Alleyne); Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super.

2014), appeal denied, 121 A.3d 494 (Pa. 2015) (18 Pa.C.S.A. § 7508,




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relating to mandatory minimum sentences for certain drug trafficking

offenses, is unconstitutional in its entirety).

      The PCRA court states that appellant was not sentenced pursuant to a

mandatory minimum sentencing statute.             (PCRA court opinion, 2/19/15 at

5.)   However, even if he were, it is well settled that Alleyne does not

invalidate a mandatory minimum sentence when presented in an untimely

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

2014) (Alleyne does not satisfy the new retroactive constitutional right

exception to the PCRA’s one-year time bar, 42 Pa.C.S.A. § 9545(b)(1)(iii)).

Cf. Commonwealth v. Ruiz,              A.3d        , 2015 WL 9632089 (Pa.Super.

filed December 30, 2015) (defendant was entitled to the benefit of Alleyne

where he raised the claim in a timely PCRA petition and his judgment of

sentence was still pending on direct review when Alleyne was handed

down).

      Therefore, appellant’s petition was untimely, no exception to the

jurisdictional one-year time bar applied, and the PCRA court did not err in

dismissing it without a hearing.3

      Order affirmed.


3
  Appellant raised several additional claims in his habeas petition and
Rule 1925(b) statement, including that the trial court lacked jurisdiction and
he was the victim of racial discrimination. Apparently, he has abandoned
these claims on appeal, as they are not argued in his brief. At any rate,
these are issues that could have been raised on direct appeal or in his first
PCRA petition. (PCRA court opinion, 2/19/15 at 5.) Therefore, they are
deemed waived. 42 Pa.C.S.A. § 9544(b).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2016




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