J-S46026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AYUB ABDULLAH                              :
                                               :
                       Appellant               :   No. 3580 EDA 2017

                     Appeal from the Order October 16, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012294-2012


BEFORE:       PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 22, 2019

        Appellant, Ayub Abdullah, appeals pro se from the order entered on

October 16, 2017, dismissing his petition filed pursuant to the Post Conviction

Relief Act1 (PCRA) as untimely. We affirm.

        The PCRA court summarized the facts and procedural history of this case

as follows:

        On February 18, 201[4], [Appellant] entered into a negotiated
        guilty plea on the charges of robbery, conspiracy, as well as two
        counts of aggravated assault [pertaining to an armed home
        invasion and robbery in Philadelphia, Pennsylvania on July 11,
        2012]. [Appellant] was sentenced in accordance with [plea]
        negotiations to [an aggregate] period of 10-20 years of
        incarceration[, representing four concurrent 10-20 year sentences
        (one sentence for each of the four felonies pled)]. This sentence
        became final on March 20, 2014 as [Appellant] did not file [a
        direct] appeal, petition to withdraw his plea, or petition for
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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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       reconsideration. On October 6, 2015, [Appellant] filed a pro se
       [PCRA] petition[.]

       On July 26, 2016, [Appellant] was appointed counsel to review the
       merits of the PCRA petition. Following this appointment, on May
       8, 2017, counsel filed a letter pursuant to Commonwealth v.
       Finley, 550 A.2d 213 (Pa. Super. 1988), as well as a motion to
       withdraw as counsel from the PCRA matter. On July 11, 2017, [a]
       first dismissal notice pursuant to [Pa.R.Crim.P.] 907 was filed by
       the [PCRA] court[. Appellant] filed a response to the dismissal
       notice on July 31, 2017[.] Thereafter, on August 23, 2017, [a]
       second notice of dismissal pursuant to Rule 907 was filed by the
       [PCRA] court.

PCRA Court Opinion, 10/26/2018, at *2 (unpaginated) (unnecessary

capitalization omitted).

       On October 27, 2017, Appellant filed a pro se notice of appeal. Upon

review of the docket, this Court entered an order on February 20, 2018

remanding this matter to the PCRA court because there was no indication that

the PCRA court disposed of the PCRA petition or ruled on PCRA counsel’s

motion to withdraw. On March 2, 2018, the PCRA court granted PCRA counsel

permission to withdraw.         On August 10, 2018, the PCRA court dismissed

Appellant’s PCRA petition.2

       On appeal, Appellant presents one issue for our review. See Appellant’s

Brief at *7 (unpaginated). He claims that the PCRA court erred by dismissing

his PCRA petition as untimely because his sentence was illegal. Id. at *10.

Appellant contends that he received four mandatory minimum sentences, one

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2  Pursuant to Pa.R.A.P. 905(a), we deem Appellant’s pro se appeal timely.
See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of
a determination but before the entry of an appealable order shall be treated
as filed after such entry and on the day thereof.”).

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for each of his four convictions, pursuant to 42 Pa.C.S.A. § 9714 (sentences

for second and subsequent violent offenses). Id. at *10-11. Appellant argues

that the United States Supreme Court declared mandatory minimum

sentences unconstitutional in Alleyne v. United States, 570 U.S. 99, 133

S.Ct. 2151 (2013). Id. Appellant further contends that our Supreme Court

subsequently examined Alleyne in Commonwealth v. Hopkins, 117 A.3d

247 (Pa. 2015) and that Hopkins provides him a timeliness exception to the

PCRA as newly discovered evidence under 42 Pa.C.S.A. § 9545(b)(1)(ii). Id.

      “This Court's standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.”      Commonwealth v.

Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019). “The PCRA court's findings

will not be disturbed unless there is no support for the findings in the certified

record.” Id.

      We previously determined:

      The timeliness of a PCRA petition is a jurisdictional requisite. The
      PCRA time limitations implicate our jurisdiction and may not be
      altered or disregarded in order to address the merits of the
      petition. In other words, Pennsylvania law makes clear no court
      has jurisdiction to hear an untimely PCRA petition. The PCRA
      requires a petition, including a second or subsequent petition, to
      be filed within one year of the date the underlying judgment
      becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
      is 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 review. 42 Pa.C.S.A. § 9545(b)(3).

      Further:


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        The PCRA provides the sole means for obtaining collateral
        review of a judgment of sentence. 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.
        Although legality of sentence is always subject to review
        within the PCRA, claims must still first satisfy the PCRA's
        time limits or one of the exceptions thereto. Thus, a
        collateral claim regarding the legality of a sentence can be
        lost for failure to raise it in a timely manner under the PCRA.

     In circumstances in which no timely direct appeal is filed relative
     to a judgment of sentence, and direct review is therefore
     unavailable, the one-year period allowed for the filing of a post-
     conviction petition commences upon the actual expiration of the
     time period allowed for seeking direct review, as specified in the
     PCRA. The initial untimely filing does not serve to circumvent the
     clear and unambiguous language of Section 9545(b)(3) and alter
     the date when the judgment of sentence became final.

     Generally, to obtain merits review of a PCRA petition filed more
     than one year after the sentence became final; the petitioner must
     allege and prove at least one of the three timeliness exceptions.
     See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The petitioner 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;

        (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). 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

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       claim could have been first brought, the trial court has no power
       to address the substantive merits of a petitioner's PCRA claims.
       We can raise sua sponte the timeliness of a PCRA petition because
       it is an issue of the court's jurisdiction.

Commonwealth v. Ballance, 203 A.3d 1027, 1031–1032 (Pa. Super. 2019)

(internal case citations, quotations, and brackets omitted).

       Here, the trial court sentenced Appellant on February 18, 2014.

Therefore, his judgment of sentence became final on March 20, 2014, or upon

the expiration of the thirty-day period to file a direct appeal. See 42 Pa.C.S.A.

§ 9545(b)(3) (“[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 review.”); see also Pa.R.A.P. 903 (“[N]otice of appeal [] shall be filed

within 30 days after the entry of the order from which the appeal is taken.”).

Thus, Appellant had until March 20, 2015 to file a timely PCRA petition.

Appellant, however, filed his PCRA petition on October 6, 2015, clearly outside

of the one-year timing requirement of the PCRA.3

       On appeal, Appellant argues the timeliness exception under 42 Pa.C.S.A.

§ 9545(b)(1)(ii) applies in this case.         He contends that he did not know

Alleyne rendered mandatory minimum sentences unconstitutional when he

decided to plead guilty. Appellant’s Brief at *10. He claims that it was not

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3  We reject Appellant’s suggestion that his illegal sentencing claim is
“nonwaivable.” See Appellant’s Brief at *11; see also Ballance, 203 A.3d
at 1032 (“Although legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA's time limits or one of the
exceptions thereto.”).

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until he was imprisoned “that he heard about the mandatory minimum scheme

being unconstitutional through fellow inmates and doing his own research that

he learned from the legal reference aid[e] that his sentence was illegal.” Id.

More specifically, Appellant maintains that our Supreme Court’s decision in

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which was issued on

June 15, 2015, provides him a timeliness exception to the PCRA as newly

discovered evidence under 42 Pa.C.S.A. § 9545(b)(1)(ii). Id. at 10-11.

       Appellant’s argument fails in several respects. First, “judicial decisions

do not constitute new ‘facts’ for purposes of the newly-discovered evidence

exception set forth in Section 9545(b)(1)(ii).”           Commonwealth v.

Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018) (citation omitted).

Accordingly, Appellant’s reliance on his purported discovery of our Supreme

Court’s decision in Hopkins as a newly discovered evidence exception to the

PCRA fails. Moreover, Hopkins was decided on June 15, 2015 and Appellant

did not file his PCRA petition until October 6, 2015, more than 60 days of the

date that the claim could have been first brought.4 See Ballance, 203 A.3d

at 1032. Next, the Hopkins decision held that the imposition of mandatory

minimum sentences for selling narcotics within 1,000 feet of a school,
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4  The legislature amended 42 Pa.C.S.A. § 9545(b)(2) to allow petitioners one
year, instead of sixty days, to file a claimed exception to the PCRA. The
amendment only applies to claims arising on or after December 24, 2017.
Appellant filed his PCRA petition in 2015. Therefore, the original 60-day rule
is applicable herein.




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pursuant to 18 Pa.C.S.A § 6317(a), was unconstitutional.    Appellant was not

sentenced under Section 6317 for selling narcotics near a school; he was

sentenced as a repeat violent offender under Section 9714. Thus, Appellant’s

reliance on Hopkins does not afford him relief.5 Because Appellant failed to

file a timely PCRA petition and did not prove one of the exceptions to the

one-year PCRA filing requirement, the PCRA court lacked jurisdiction to reach

the merits of Appellant’s claim and properly dismissed Appellant’s PCRA

petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




____________________________________________


5   Finally, to the extent that Appellant’s claim could be interpreted as
implicating a new constitutional right exception to the PCRA under 42
Pa.C.S.A. § 9545(b)(1)(iii), our Supreme Court has held that Section 9714 is
constitutional. See Commonwealth v. Bragg, 133 A.3d 328 (Pa. Super.
2016), affirmed, Commonwealth v. Bragg, 169 A.3d 1024 (Pa. 2017) (per
curiam).     Moreover, in Alleyne, while the United States Supreme Court
established 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[,]” the Alleyne Court recognized “a narrow exception to
this general rule for [] prior conviction[s].” Id. at 2155 and 2160 n.1.

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