J-S08031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

SHELDON CULBREATH

                             Appellant               No. 2234 EDA 2014


                   Appeal from the PCRA Order July 9, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0016474-1996


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED JANUARY 23, 2015

        Sheldon Culbreath (“Appellant”) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

        On February 3, 1998, the trial court convicted Appellant of possession

of a controlled substance with intent to deliver,1 corrupt organizations,2 and

conspiracy.3     On April 2, 1998, the trial court sentenced Appellant to an

aggregate sentence of 17½ to 50 years’ incarceration. This Court affirmed

Appellant’s judgment of sentence on January 15, 1999.

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 911.
3
    18 Pa.C.S. § 903.
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        Appellant filed a timely PCRA petition on November 9, 2000.          The

PCRA court held a hearing on April 3, 2003, and denied the PCRA petition on

April 24, 2003. This Court affirmed the denial of PCRA relief on February 3,

2004.     On January 18, 2005, the Supreme Court of Pennsylvania denied

Appellant’s petition for allowance of appeal.

        Appellant filed a second PCRA petition on July 31, 2013.      The PCRA

court dismissed the petition as untimely on August 26, 2013. Appellant did

not appeal.

        On June 16, 2014, Appellant filed the instant PCRA petition, his third,

claiming that his sentence was illegal because it was greater than the

sentence his co-defendant received.              On June 18, 2014, pursuant to

Pa.R.Crim.P. 907, the PCRA court issued notice of its intent to dismiss the

petition without a hearing. On July 8, 2014, Appellant responded to the Rule

907 notice, reiterating the petition’s claims. The PCRA court dismissed the

petition on July 9, 2014. This timely appeal followed.4

        On appeal, Appellant presents the following issues for our review:

        1. DID THE SUPREME COURT ALLEYNE RULING ANNOUNCED IN
        COMMONWEALTH V. NEWMAN         CREATE A TIMELINESS
        EXCEPTION FOR PCRA PETITIONERS AS THEIR SENTENCE IS
        UNCONSTITUTIONAL JUST AS THE DIRECT APPEAL DEFENDAT’S;
        AND MAY APPELLANT BENEFIT FROM THE NEW RULE
        ANNOUNCEMENT THAT WAS RENDERED WHILE BEFORE THIS
        COURT AND A REMAND IS REQUIRED FOR THE PCRA COURT TO
        WEIGH IN ON THIS CONSTITUTIONAL RIGHT VIOLATION IN THE
____________________________________________


4
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.



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      FIRST INSTANCE WHERE APPELLANT WAS TO RECEIVE A 5 TO
      10 AS A MATTER OF LAW BUT RECEIVED A 17½ TO 50 YEAR
      SENTENCE THAT IS UNCONSTITUTIONAL?

      2. DID THE NEWMAN RULING SAVE AN UNCONSTITUTIONAL
      COMMONWEALTH V. CRUZ VIOLATION WHEREIN THE ISSUES
      ARE ESSENTIALLY ONE IN THE SAME WHEREIN A PPCRA
      PETITIONER IS ENTITLED TO THE SAME SENTENCE AS HIS
      CODEFENDANT UNDER THE EQUAL PROTECTION DUE PROCESS
      CLAUSE?

Appellant’s Brief, p. 5 (verbatim).

      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and 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.”   Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      We must first consider the timeliness of the petition. “It is undisputed

that a PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.” Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).            “This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at

651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A

judgment of sentence “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



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the review.” 42 Pa.C.S. § 9545(b)(3). However, a facially untimely petition

may be received where any of the PCRA’s three limited exceptions to the

time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote

omitted). These exceptions include:

     (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).   As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.   Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

     [a] petition invoking one of these exceptions must be filed within
     sixty days of the date the claim could first have been presented.
     42 Pa.C.S. § 9545(b)(2).        In order to be entitled to the
     exceptions to the PCRA’s one-year filing deadline, the petitioner
     must plead and prove specific facts that demonstrate his claim
     was raised within the sixty-day time frame under section
     9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).




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       Finally, a heightened standard applies to a second or subsequent PCRA

petition    to      avoid    “serial    requests     for     post-conviction     relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                       “A second or

subsequent request for relief under the PCRA will not be entertained unless

the petitioner presents a strong prima facie showing that a miscarriage of

justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,

1251 (Pa.2006).         Additionally, in a second or subsequent post-conviction

proceeding,      “all   issues   are   waived    except    those   which    implicate   a

defendant’s innocence or which raise the possibility that the proceedings

resulting in conviction were so unfair that a miscarriage of justice which no

civilized society can tolerate occurred”. Commonwealth v. Williams, 660

A.2d 614, 618 (Pa.Super.1995).

       On January 15, 1999, this Court affirmed Appellant’s judgment of

sentence.     Appellant did not file a petition for allowance of appeal to the

Supreme Court of Pennsylvania, and his sentence became final at the

expiration of his time to seek review thirty days later, on February 16,

1999.5     See 42 Pa.C.S. § 9545(b)(3).            Accordingly, Appellant had until

February 16, 2000 to timely file a PCRA petition.


____________________________________________


5
  The thirtieth day fell on February 14, 1999, a Sunday. The following
Monday was Presidents’ Day, a holiday. Accordingly, Appellant had until
Tuesday, February 16, 1999 to timely file a petition for allowance of appeal
to the Supreme Court of Pennsylvania.




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         Appellant filed the instant petition on June 16, 2014, over fourteen

years after the expiration of his PCRA limitations period.       Accordingly,

Appellant’s petition is facially untimely. Thus, he must plead and prove that

his petition falls under one of the Section 9545 exceptions set forth in the

PCRA.      See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Appellant’s PCRA petition,

however, makes no attempt to plead or prove any of the three time bar

exceptions. To the extent Appellant’s brief suggests the Supreme Court of

the United States’ decision in Alleyne v. United States, -- U.S. ---, 133

S.Ct. 2151 (2013),6 provides a time bar exception, Appellant was required to

plead and prove such a time bar exception in his PCRA petition. See Abu-

Jamal, 941 A.2d at 1268. The PCRA petition itself includes no discussion

whatsoever of Alleyne, even though the Supreme Court of the United States

decided Alleyne nearly one full year before Appellant filed his PCRA

petition.7    Instead, Appellant did not discuss Alleyne until his appellate

brief.    As a result, Appellant has waived any time bar exception Alleyne

could have afforded. See Commonwealth v. Burton, 936 A.2d 521, 525

(Pa.Super.2007) (“exceptions to the [PCRA] time bar must be pled in the
____________________________________________


6
  In Alleyne, the Supreme Court of the United States 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.” Alleyne, 133
S.Ct. at 2155.
7
  The Supreme Court of the United States decided Alleyne on June 17,
2013.




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PCRA petition, and may not be raised for the first time on appeal”); see

also Pa.R.A.P. Rule 302(a) (issues not raised in the lower court are waived

and cannot be raised for the first time on appeal). Additionally, Appellant

failed to file the instant petition within 60 days of Alleyne, and therefore

could not rely on Alleyne for a PCRA time-bar exception. See 42 Pa.C.S. §

9545(b)(2) (petitions invoking exceptions must be filed within 60 days of the

date the claim could have been presented). Further, neither the Supreme

Court of the United States nor the Supreme Court of Pennsylvania has held

Alleyne to apply retroactively to matters on collateral appeal, and therefore

Alleyne would not have provided Appellant with a time-bar exception, even

if properly pleaded in his petition.

        Because Appellant did not properly plead or prove a time-bar

exception based on Alleyne, because Alleyne does not provide a time-bar

exception, and because Appellant’s petition neither pleads nor proves any

other exception, the petition remains time-barred.

        Additionally, the sole claim contained in the instant PCRA petition –

that Appellant is entitled to the same sentence his co-defendant received8 –

neither implicates Appellant’s actual innocence nor raises the possibility that

the proceedings were so unfair that a miscarriage of justice which no

civilized society can tolerate occurred. See Williams, supra.


____________________________________________


8
    See PCRA petition, June 16, 2014, p. 1.



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       Further, we note that Appellant’s underlying claim lacks merit. Simply

stated, “[t]he law is well-settled that co-defendants are not required to

receive identical sentences.”        Commonwealth v. Mastromarino, 2 A.3d

581, 589 (Pa.Super.2010). The fact that Appellant’s co-defendant received

a lesser sentence does not render his sentence illegal.9

       Because Appellant filed the instant PCRA petition over fourteen years

after the expiration of the PCRA limitations period and cannot avail himself

of any time-bar exceptions, the PCRA court did not err in dismissing this

petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




____________________________________________


9
  We note that, although never waived, illegal sentence claims remain
subject to the PCRA’s timeliness requirements. See Commonwealth v.
Jackson, 30 A.3d 516, 521-22 (Pa.Super.2011).




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