J-S25018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TERRY EUGENE SHIELDS,

                            Appellant                 No. 1356 WDA 2014


                    Appeal from the PCRA Order July 16, 2014
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0003007-2009


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

DISSENTING MEMORANDUM BY PLATT, J.:                      FILED JULY 30, 2015

        I respectfully dissent. Appellant asserts that his mandatory minimum

sentence received pursuant to 42 Pa.C.S.A. § 9712 is illegal under Alleyne.1

In my view, his delay in raising the illegality of sentence issue is decisive.

Therefore, I would conclude that his untimely response to the PCRA court’s

Rule 907 notice precludes our review. Accordingly, I would affirm.

        The learned Majority acknowledges that “Appellant neglected the issue

entirely until his untimely response to the Rule 907 notice.”          Majority

Memorandum, at 4.           Nevertheless, it concludes that the “delay is of no
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*
    Retired Senior Judge assigned to the Superior Court.
1
  I note that this Court has held the statute at issue unconstitutional in light
of Alleyne. See Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa.
Super. 2014) (holding mandatory minimum sentence illegal on direct
appeal).
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moment[.]” Id. at 5 (referencing Commonwealth v. Wolfe, 106 A.3d 800,

801 (Pa. Super. 2014)).2 I disagree.

             [It] is black-letter law that challenges to the legality of a
       judgment of sentence can not be waived. . . . [However, w]hile
       the rule forecloses permanent waiver of legality-of-sentence
       claims, it does not preclude a court from enforcing procedural
       rules or jurisdictional limits and requiring such claims be
       properly presented at the time they are raised in order to obtain
       review thereof.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (citations

omitted; emphasis added).            A collateral challenge to the legality of a

sentence must meet the jurisdictional time requirements of the PCRA. See

e.g. Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)

(finding illegality claim raised after judgment of sentence becomes final

construed as PCRA petition); Commonwealth v. Grafton, 928 A.2d 1112

(Pa. Super. 2007) (holding illegality claim must meet jurisdictional time

requirements).       Further, a response to a Rule 907 notice “during a

petitioner’s first PCRA proceeding is not a second or serial petition, nor is it

an amended petition[,]” except where it sets forth a new non-PCRA

ineffectiveness claim.      Commonwealth v. Rykard, 55 A.3d 1177, 1187

(Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013) (citation omitted).

       It is well-settled that:



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2
 In my view, the Majority’s reliance on Wolfe is misplaced because Wolfe
was a direct appeal.



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              The filing mandates of the PCRA are jurisdictional in nature
        and are strictly construed. The question of whether a petition is
        timely raises a question of law. Where the petitioner raises
        questions of law, our standard of review is de novo and our
        scope of review plenary. An untimely petition renders this Court
        without jurisdiction to afford relief.

Taylor, supra at 468 (citations omitted).

        Here, the record reflects that Appellant timely filed his first PCRA

petition.3   On June 9, 2014, the PCRA court filed its Rule 907 notice to

dismiss Appellant’s petition.4 Appellant filed his untimely response eighteen

days late, on July 14, 2014. The PCRA court dismissed his petition by order

dated July 16, 2014.

        I would conclude under the narrow statutory grounds for obtaining

collateral relief under the PCRA, Appellant’s untimely claim of illegality of

sentence is unreviewable, and the PCRA court properly dismissed his

petition. Therefore, I would affirm.

        Accordingly, I respectfully dissent.




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3
  On January 21, 2014, Appellant filed his first PCRA petition and an
amended petition on May 27, 2014.
4
    The Rule 907 notice is dated June 6, 2013.




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