J-S21023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ARTHUR JOHNSON

                            Appellant                 No. 1664 EDA 2015


                    Appeal from the PCRA Order May 8, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000246-2009,
                              CP-15-0001902-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                               FILED MAY 03, 2016

        Arthur Johnson appeals from the order, entered in the Court of

Common Pleas of Chester County, which dismissed his petition pursuant to

the Post Conviction Relief Act (PCRA).1 After careful review, we affirm.

        Johnson was charged with multiple counts each of possession of

cocaine,2 possession with intent to deliver (PWID)3 cocaine, and criminal use



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(30).
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of a communication facility.4          On August 17, 2009, Johnson entered a

negotiated guilty plea to five counts of PWID, and all other counts were

withdrawn. In exchange for pleading guilty, Johnson received an aggregate

sentence of 12 to 24 years’ incarceration.        Johnson did not file a post-

sentence motion or direct appeal of his sentence.

        On January 10, 2010, Johnson filed his first PCRA petition.   Counsel

was appointed; the PCRA court ultimately dismissed the petition as meritless

on June 30, 2011. Johnson filed the instant PCRA petition on June 12, 2014,

asserting that he was sentenced to mandatory minimum sentences based

upon the weight of cocaine he possessed,5 in contravention of the dictates of

Alleyne v. United States, 133 S.Ct. 2151 (2013). Appointed counsel was

permitted to withdraw after reviewing Johnson’s claims and determining the

petition to be without merit.        On May 6, 2015, the PCRA court dismissed

Johnson’s petition based upon its lack of jurisdiction to consider an untimely

petition.

        Johnson filed a timely notice of appeal pro se.    On appeal, Johnson

raises the following issues, verbatim:

        1. Was the United States Supreme Court ruling within [Alleyne]
           a substantial issue [that] must be applied retroactive[ly]?

        2. Was the Lower Court’s denial of PCRA relief in light of the
           Pennsylvania Supreme Court granting of [a]llocatur within
____________________________________________


4
    18 Pa.C.S. § 7512(a).
5
    See 18 Pa.C.S. § 7508.



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         Commonwealth v. Kareem Barnes, 2015 Pa. LEXIS 2083
         No. 350 EAL 2014 September 18, 2015[,] without error?

Brief for Appellant, at 4.

      Our standard and scope of review regarding the denial of a PCRA

petition is well-settled.    We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      In order to be considered timely,

      [a] PCRA petition, including a second or subsequent one, must
      be filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
      are jurisdictional; therefore, a court may not address the merits
      of the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

      The three statutory exceptions for an untimely petition under the PCRA

consist of the following:


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       (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). Additionally, a petition invoking a timeliness

exception pursuant to the statute must “be filed within 60 days of the date

the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2) .

       Here, Johnson was sentenced on August 17, 2009. He did not file a

notice of appeal; thus, his sentence became final on September 16, 2009, at

the conclusion of the time for him to do so. See 42 Pa.C.S. § 9545(b)(3).

The instant PCRA petition was filed on June 12, 2014, well beyond one year

after Johnson’s judgment of sentence became final, and the petition is

untimely on its face. However, Johnson argues that the petition meets one

of the PCRA timeliness exceptions because he filed it within 60 days of

becoming aware of the ruling in Alleyne.

       In his brief, Johnson attempts to invoke the newly-recognized

constitutional right exception in section 9545(b)(iii).6 Johnson is correct in

____________________________________________


6
  Johnson also referenced the exceptions in sections 9545(b)(i) and (b)(ii) in
his petition, claiming governmental interference and lack of knowledge
(Footnote Continued Next Page)


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arguing that the mandatory minimum sentencing scheme for PWID in 18

Pa.C.S. § 7508, which is based upon weight of the controlled substance, has

been deemed unconstitutional following Alleyne. See Commonwealth v.

Fennell, 105 A.3d 13, 20 (Pa. Super. 2014).       However, because Johnson

filed the instant petition only after becoming aware of the ruling in Alleyne,

and not within 60 days of the decision, it is untimely. See Commonwealth

v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (to invoke PCRA timeliness

exception regarding newly-recognized constitutional right, “the sixty-day

period begins to run upon the date of the underlying judicial decision”).

      Moreover, Alleyne has not been held to have retroactive effect in the

post-conviction relief context. See Commonwealth v. Ruiz, 131 A.3d 54,

58 (Pa. Super. 2015) (it has been “settled that Alleyne does not invalidate

a mandatory minimum sentence when presented in an untimely PCRA

petition”); see also Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.

Super. 2014) (“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”).            Thus, the PCRA court

was without jurisdiction to consider Johnson’s untimely petition.

      Johnson also argues that relief is due because our Supreme Court has

granted allowance of appeal in Commonwealth v. Barnes, 105 A.3d 47

                       _______________________
(Footnote Continued)

prevented him from presenting his claim earlier.     However, he abandoned
these claims on appeal.



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(Pa. Super. 2014) (unpublished memorandum), appeal granted, 122 A.3d

1034 (Pa. 2015). One of the issues to be decided is “[w]hether a challenge

to a sentence pursuant to [Alleyne] implicates the legality of the sentence

and is therefore non-waivable.” Id. Even if the PCRA court had jurisdiction

to consider Johnson’s petition, this argument lacks merit.   In Barnes, the

defendant was sentenced prior to the ruling in Alleyne. Thereafter, based

on ineffective assistance of counsel, Barnes’ direct appeal rights were

reinstated nunc pro tunc and his petition for allowance of appeal was

granted in that context.   Thus, the facts of Barnes are inapposite to the

instant matter, and the PCRA court correctly dismissed Johnson’s petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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