J-S68012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS DAVIS, JR.,

                            Appellant               No. 1732 WDA 2015


                 Appeal from the PCRA Order October 5, 2015
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0001546-2008


BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 04, 2016

       Appellant, Thomas Davis, Jr., appeals from the order denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

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

       As a result of events stemming from a traffic stop on June 19, 2008,

Appellant was charged with two counts of possession with intent to deliver a

controlled substance, two counts of possession of a controlled substance,

one count of possession of drug paraphernalia, one count of person not to

possess firearms and one count of firearms not to be carried without a

license. The drug charges were severed from the firearms charges.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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      A jury trial on the drug charges was held on February 5, 2009.

Appellant was convicted of all of the drug offenses and was sentenced on

June 19, 2009, to six to twelve years of incarceration. Order, 6/19/09, at 1-

6. A jury trial on the firearms charges was held July 6-7, 2009. Appellant

was convicted of the firearms charges and was sentenced on August 6,

2009, to five to ten years of incarceration, with the sentence to be served

consecutively to the sentence imposed on the drug convictions.              Order,

8/6/09, at 1-2.

      Appellant timely appealed the drug convictions sentence, which appeal

was docketed at 1223 WDA 2009 in this Court.            We affirmed Appellant’s

judgment of sentence on June 7, 2010.        Commonwealth v. Davis, 1223

WDA 2009, 4 A.3d 677 (Pa. Super. filed June 7, 2010).            Appellant filed a

petition for allowance of appeal on June 29, 2010.          Commonwealth v.

Davis,   337   WAL    2010,   6/29/10.      Appellant    filed   a   praecipe   for

discontinuance on January 4, 2011, and the Supreme Court processed the

request the same day.     Notice of Disposition Sheet Exited, 1/4/11; Letter

from Supreme Court, 1/4/11, at 1.

      Appellant also timely appealed the firearms sentence which was

docketed at 1524 WDA 2009 in this Court. This Court affirmed Appellant’s

judgment of sentence on October 12, 2010.          Commonwealth v. Davis,

1524 WDA 2009, 15 A.3d 523 (Pa. Super. filed October 12, 2010).

Appellant did not file a petition for allowance of appeal at that docket.


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        Appellant filed his first PCRA Petition on February 2, 2011, identifying

in his petition the drug and firearms convictions and the appeals at both

dockets.     Counsel was appointed to represent Appellant and filed an

amended PCRA petition.            Appellant’s PCRA petition was dismissed on

October 26, 2011.        Order, 10/26/11.       Appellant timely appealed, and this

Court    affirmed    the   PCRA     court’s    determination   on   June   19,   2012.

Commonwealth v. Davis, 1811 WDA 2011, 53 A.3d 934 (Pa. Super. filed

June 19, 2012). Appellant filed a petition for allowance of appeal, which was

denied on November 21, 2012. Commonwealth v. Davis, 308 WAL 2012,

57 A.3d 66 (Pa. November 21, 2012).

        Appellant filed the instant PCRA petition, his second, on August 6,

2015. On October 5, 2015, the PCRA court dismissed Appellant’s petition.

Appellant timely appealed on October 28, 2015.1 Appellant was directed to

file a Pa.R.A.P. 1925(b) statement.            Counsel was appointed and filed a

Pa.R.A.P. 1925(b) statement. The PCRA court filed a statement pursuant to

Pa.R.A.P. 1925(a).

        Appellant presents the following issues for our review:

        [I.] Did the PCRA court erroneously conclude that Appellant did
        not plead and satisfy the requirements of the Post Conviction
        Relief Act?
____________________________________________


1
  We note that Appellant also filed a notice of appeal to this Court on
October 16, 2015, which was docketed at 1662 WDA 2015. By order
entered December 7, 2015, this Court dismissed that appeal as duplicative
of the instant appeal. Commonwealth v. Davis, Order, 12/7/15.



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        [II.] Did the PCRA court err in dismissing Appellant’s PCRA
        petition without first conducting a hearing on the merits of
        [Appellant’s] arguments?

        III. Did the PCRA court err in its decision wherein it opines that
        Appellant is not entitled to PCRA relief on his claim which is
        time-barred on its face.

        IV.   Did the PCRA court err in denying Appellant’s motion for
        relief by not properly considering the decision of the
        Pennsylvania Supreme Court in Commonwealth v. Hopkins, 117
        A.3d 247 (Pa. June 15, 2015)?

        V.   Did the PCRA court err by not granting Appellant’s
        requested relief as was warranted in both the United States and
        Pennsylvania Supreme Court rulings which deemed 42 Pa.C.S.A.
        6317 and 41 Pa.C.S.A. 9712.1 unconstitutional?

Appellant’s Brief at 4 (full capitalization omitted).2

        Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).              The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

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

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
____________________________________________


2
    We renumbered Appellant’s issues for ease of disposition.



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

ignore it in order to reach the merits of the petition.   Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).         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 the review.”          42

Pa.C.S. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.3 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42


____________________________________________


3
    The exceptions to the timeliness requirement are:

       (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.

(Footnote Continued Next Page)


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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). Carr, 768 A.2d at 1167.

      Appellant’s judgment of sentence at 1223 WDA 2009 became final on

January 4, 2011, when he voluntarily discontinued his direct appeal.       See

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)

(explaining that the appellant’s judgment of sentence became final on the

date appellant discontinued his direct appeal) (citing Commonwealth v.

Conway, 706 A.2d 1243 (Pa. Super 1997) (“judgment of sentence final for

PCRA purposes when appeal is discontinued voluntarily”)).          Accordingly,

Appellant had until January 4, 2012, to file a timely PCRA petition in this

matter.

      Appellant’s judgment of sentence at 1524 WDA 2009 became final on

November 11, 2010, when the time for filing a petition for allowance of

appeal with the Pennsylvania State Supreme Court expired. See 42 Pa.C.S.

§ 9545(b)(3) (providing that “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.”). Therefore, Appellant had to file the current
                       _______________________
(Footnote Continued)

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).




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PCRA petition in this matter by November 11, 2011, in order for it to be

timely.

       Appellant filed   the   instant PCRA   petition on August 6, 2015.

Accordingly, Appellant’s instant PCRA petition is patently untimely as related

to both dockets.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted.     42 Pa.C.S. § 9545(b)(2).     This is true despite the fact that

Appellant’s petition presents a challenge to the legality of his sentence. See

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)

(“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.”).

       Appellant argues that he is eligible for relief because he “specifically

and properly plead facts in his petition to satisfy the requirements of 42

Pa.C.S.A. 9545(b)(1)(ii).” Appellant’s Brief at 8. Appellant further alleges

that

       [t]he merits of [A]ppellant’s petition were reliant upon Com v.
       Hopkins, which was not published until June, 2015. 117 A.3d
       247 (Pa., June 15, 2015). Appellant appropriately and timely
       filed his petition within 60 days of that date, as required by 42

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      Pa.C.S.A. 9545(b). . . . As such, the timeliness of the filing of
      the petition was not a bar to the merits of the petition being
      heard by the PCRA Court.

Id. at 9.

      We first note that to the extent Appellant argues in his petition that

the   PCRA   one-year   time-bar   does   not     apply   in   this   case   because

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) triggered the newly-

discovered facts exception to the PCRA time limit, this Court has ruled that

judicial decisions are not facts for purposes of 42 Pa.C.S. § 9545(b)(1)(ii).

See Cintora, 69 A.3d at 763 (“a judicial opinion does not qualify as a

previously unknown ‘fact’ capable of triggering the timeliness exception set

forth in section 9545(b)(1)(ii) of the PCRA.”).

      Additionally, we cannot conclude that Appellant’s claim establishes the

“new constitutional right” exception to the PCRA time-bar based on Hopkins

and Alleyne v. United States, 133 S.Ct. 2151 (2013).

      In Alleyne, the Supreme Court held that the constitutional jury
      trial right requires any fact, other than a prior conviction, that
      triggers a mandatory minimum sentence to be proven beyond a
      reasonable doubt before the finder of fact.        Alleyne is an
      application of the Court’s prior pronouncement in Apprendi v.
      New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
      (2000), which ruled that any fact that increases a maximum
      sentence must be found by the factfinder beyond a reasonable
      doubt or admitted by the defendant during his guilty plea. In
      Alleyne, the United States Supreme Court expressly overruled
      Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
      L.Ed.2d 524 (2002), which held that a fact that involves a
      mandatory minimum sentence does not implicate jury trial
      rights.     Alleyne also implicitly abrogated McMillan v.
      Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67


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      (1986), which withstood an Apprendi attack in the Harris
      decision.

           In   Commonwealth v. Newman,                99  A.3d   86
      (Pa.Super.2014) (relying upon Commonwealth v. Watley, 81
      A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that
      Alleyne will be applied to cases pending on direct appeal when
      Alleyne was issued.

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)

(emphasis added).

      While this Court has held that Alleyne applies to cases that were on

direct appeal when Alleyne was issued, we have declined to construe that

decision as applying retroactively to cases in which the judgment of

sentence has become final.

      In concluding Alleyne does not satisfy the new retroactive
      constitutional right exception to the PCRA’s one year time bar,
      42 Pa.C.S. § 9545(b)(1)(iii), the [Commonwealth v. Miller,
      102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:

             Even assuming that Alleyne did announce a new
             constitutional right, neither our Supreme Court, nor
             the United States Supreme Court has held that
             Alleyne is to be applied retroactively to cases in
             which the judgment of sentence had become
             final. This is fatal to Appellant’s argument regarding
             the PCRA time-bar. This Court has recognized that a
             new rule of constitutional law is applied retroactively
             to cases on collateral review only if the United States
             Supreme Court or our Supreme Court specifically
             holds it to be retroactively applicable to those cases.

      Id. at 995 (citations omitted) (emphasis supplied).

Commonwealth v. Ruiz, 131 A.3d. 54, 58 (Pa. Super. 2015) (emphasis in

original).   Indeed, our State Supreme Court recently held that “Alleyne


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does not apply retroactively to cases pending on collateral review.”

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

      As noted, Appellant’s judgments of sentence became final on January

4, 2011, and November 11, 2010. Alleyne was decided on June 17, 2013.

Alleyne, 133 S.Ct. at 2151.        Appellant’s judgments of sentence were

finalized years before Alleyne was decided.      Therefore, Appellant’s PCRA

petition does not qualify for the new constitutional-right exception to the

PCRA time-bar under Alleyne.

      Furthermore, the Hopkins decision did not announce a “new rule”;

rather, it simply assessed the validity of 18 Pa.C.S. § 6317 under Alleyne

and concluded that particular mandatory minimum sentencing statute is

unconstitutional.   Nevertheless, even if Hopkins announced a new rule,

neither our Supreme Court nor the United States Supreme Court has held

that Hopkins applies retroactively to post-conviction petitioners such as

Appellant.   As noted, Appellant’s judgments of sentence became final on

January 4, 2011, and November 11, 2010, and Hopkins was not decided

until June 15, 2015. Consequently, to the extent Appellant attempts to rely

on Hopkins, he has not satisfied the time-bar exception of section

9545(b)(1)(iii).

      Additionally, we note that although a challenge based on Alleyne does

implicate the legality of a sentence, “a legality of sentence claim may

nevertheless be lost should it be raised . . . in an untimely PCRA petition for


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which no time-bar exception applies.” Miller, 102 A.3d at 995-996. Thus,

the PCRA court properly dismissed Appellant’s instant PCRA petition as

untimely. It was filed beyond the one-year general deadline, and Appellant

cannot rely on Alleyne or its progeny to invoke the timeliness exception at

section 9545(b)(1)(iii).

        Appellant also asserts that the PCRA court erred in dismissing

Appellant’s petition without first conducting a hearing. Appellant’s Brief at 8.

We note that the right to an evidentiary hearing on a post-conviction petition

is not absolute.    Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001).      The PCRA court may dismiss a petition without a hearing

when the court is satisfied “that there are no genuine issues concerning any

material fact, the defendant is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by any further proceedings.”

Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016) (quoting

Pa.R.Crim.P. 909(B)(2)).      Because the petition was untimely, the PCRA

lacked jurisdiction to review the merits of Appellant’s claims and Appellant

was not entitled to post-conviction relief.    Accordingly, the PCRA court did

not err in dismissing Appellant’s petition without conducting a hearing.

        In his third issue, Appellant argues that his petition was not facially

untimely because he filed a federal habeas corpus petition on January 22,

2013.      Appellant’s Brief at 9.      Appellant argues that petition was

“appropriately filed within 90 days of December 12, 2012, which was the


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date [A]ppellant’s allowance of appeal was denied by the Pennsylvania

Supreme Court.”        Id.   Appellant asserts that because the federal habeas

corpus petition has not yet been ruled upon, his judgment of sentence has

not been finalized and therefore the “clock” for his PCRA petition has not

begun to run. Id. at 10.

        We first note that despite Appellant’s assertion that his petition for

allowance of appeal was denied on December 12, 2012, the record does not

reflect that claim.4 As noted, the record reflects that Appellant withdrew his

petition for allowance of appeal on direct appeal at docket 1223 WDA 2009

on January 4, 2011, which is the date upon which Appellant’s judgment of

sentence became final.        McKeever, 947 A.2d at 785.               Appellant’s federal

filing was not within ninety days of January 4, 2011.5

        Moreover, Appellant would have had ninety days from the date of the

Pennsylvania Supreme Court’s decision on direct appeal to file a petition

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

Commonwealth v. Hackett, 956 A.2d 978, 980 n.4 (Pa. 2008); United

____________________________________________


4
    Appellant presents no citation in support of this statement.
5
  The record reflects that Appellant’s petition for allowance of appeal from
the Superior Court’s affirmance of the dismissal of Appellant’s first PCRA
petition was denied on November 21, 2012. Commonwealth v. Davis, 308
WAL 2012, 57 A.3d 66 (Pa. filed November 21, 2012). However, this was
not a petition for an allowance of appeal filed on direct appeal, and therefore
has no effect on the determination of the finality of Appellant’s sentence and
the related timeline under the PCRA.



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States Supreme Court Rule 13; see also 42 Pa.C.S. § 9545(b)(3) (providing

that “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.”). A federal petition for habeas corpus does not impact the finality

of Appellant’s judgment of sentence. As our Supreme Court has explained, a

federal habeas corpus proceeding is not an appeal from a state court

proceeding,    but   an   original   civil   action    based   in   federal   court.

Commonwealth v. Whitney, 817 A.2d 473, 474 (Pa. 2003).                    Therefore,

Appellant is incorrect in his assertion that due to his filing of a federal

habeas corpus petition which has not yet been ruled upon, his judgment of

sentence is not yet finalized.       Appellant’s judgments of sentence were

finalized as outlined above. As a result, Appellant’s instant PCRA petition is

untimely.

       In his fourth and fifth issues, Appellant asserts that the PCRA court

erred in dismissing his PCRA petition because minimum sentencing statutes

have    been   declared   unconstitutional     under    Hopkins     and    Alleyne.

Appellant’s Brief at 10-11. For reasons outlined in our previous discussion of

Hopkins and Alleyne, these issues lack merit.

       Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.     See Commonwealth v. Fairiror, 809 A.2d


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396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).    Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.               See

Commonwealth        v.    Bennett,   930      A.2d   1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2016




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