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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

     COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA

                    v.


     JAMIE   E.   HOUSEKNECHT

                            Appellant            :   No. 1848 MDA 2017

                    Appeal from the Order Entered October 30, 2017
                     In the Court of Common Pleas of Berks County
                  Criminal Division at No(s): CP-06-CR-0000276-2004

BEFORE:           SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY OTT, J.:                                        FILED JULY 30, 2019

          Jamie    E.   Houseknecht appeals from the order entered October 30, 2017,

in    the Berks County Court of Common Pleas, dismissing his second petition

for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA").1

Houseknecht seeks relief from the judgment of sentence of an aggregate 12

to 24 years' imprisonment, imposed following his negotiated guilty plea to one

count each of aggravated indecent assault without consent, indecent assault

of    a   person less than 13 years of age, and attempted involuntary deviant




*   Former Justice specially assigned to the Superior Court.

1    42 Pa.C.S.A. §§ 9541-9546.
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sexual intercourse    - threat of forcible compulsion.2          Concomitant with this

appeal, counsel has filed       a   petition to withdraw.3 Because we conclude the

PCRA    petition was untimely filed, we affirm, and grant counsel's petition to

withdraw.

        The parties are well aware of the facts underlying Houseknecht's guilty

plea, and we need not recite them herein.             In summary, on April 26, 2004,

Houseknecht entered       a   negotiated guilty plea to the aforementioned charges.

The charges arose from         a    January 4, 2004 incident, wherein Houseknecht,

then age 24, hid in   a   public women's bathroom waiting for an unaccompanied

child to enter.    When an 8 -year -old girl and her three -year -old brother

entered, he forcibly restrained them, threatened them, and repeatedly

sexually assaulted the girl. The incident only ended when the children's father

came looking for them.             Following an evaluation by the Sexual Offenders

Assessment Board, sentencing took place on December 1, 2004.                      The trial

court sentenced Houseknecht in accordance with the terms of the plea

agreement and designated him           a   sexually violent predator; thus, he   is   subject

to lifetime registration under Megan's Law.




2   18 Pa.C.S.A. §§ 3125(a)(1), 3126(a)(7), 901, and 3123(a)(2),
respectively.

3 See Commonwealth v. Turner,                          544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213                 (Pa. Super. 1988) (en banc).


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        On March 2, 2006, this Court affirmed the                judgment of sentence.

Commonwealth v. Houseknecht, 898 A.2d 1129                          (Pa.   Super. 2006)

(unpublished memorandum).             Houseknecht did not seek leave to appeal to

the Pennsylvania Supreme Court.

        On April 18, 2007, Houseknecht filed a pro se PCRA petition. The court

appointed counsel who subsequently sought leave to withdraw. On April 30,

2008, the PCRA court dismissed the petition. On January 11, 2011, this Court

dismissed Houseknecht's appeal for failure to file       a   brief. On June 29, 2012,

the Pennsylvania Supreme Court dismissed Houseknecht's application for

leave to file   a   petition for allowance of appeal nunc pro tunc.

        On January         14, 2016, Houseknecht filed       a   second PCRA petition

accompanied by         a   motion for appointment of counsel. The court appointed

counsel, who subsequently sought leave to withdraw. On April 1, 2016, the

PCRA    court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1) and granted counsel's request

to withdraw. On October 30, 2017, the PCRA court dismissed the petition as

untimely. The instant, timely appeal followed.4




4The PCRA court subsequently granted Houseknecht's motion for appointment
of counsel and directed counsel to file a concise statement of errors
complained of on appeal. After multiple delays and a change of counsel,
appellate counsel filed a timely Rule 1925(b) statement on September 28,
2018. On October 22, 2018, the court filed an opinion.

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         Prior to addressing the merits of this appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal.

Commonwealth v. Muzzy,            141 A.3d 509, 510 (Pa. Super. 2016). Pursuant

to   Turner/Finley    and their progeny:

         Counsel petitioning to withdraw from PCRA representation must               .


         .   review the case zealously. Turner/Finley counsel must then
             .


         submit a "no -merit" letter to the trial court, or brief on appeal to
         this Court, detailing the nature and extent of counsel's diligent
         review of the case, listing the issues which petitioner wants to
         have reviewed, explaining why and how those issues lack merit,
         and requesting permission to withdraw. Counsel must also send
         to the petitioner: (1) a copy of the "no merit" letter/brief; (2) a
         copy of counsel's petition to withdraw; and (3) a statement
         advising petitioner of the right to proceed pro se or by new
         counsel.
                                        *    *      *


         [W]here counsel submits a petition and no -merit letter that
         satisfy the technical demands of Turner/Finley, the court
         court or this Court  -   must then conduct its own review of the
                                                                         -   .


                                                                          trial
                                                                                 .   .




         merits of the case. If the court agrees with counsel that the claims
         are without merit, the court will permit counsel to withdraw and
         deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454                  (Pa. Super. 2012) (citation

omitted).

         Here, our review reveals counsel has substantially complied with the

procedural aspects of Turner/Finley. Although she filed          a   brief, as opposed

to   a   "no merit" letter, counsel's brief properly lists the issues Houseknecht

wishes us to review and explains why they are meritless. See Houseknecht's

Brief at 10-19.     Furthermore, counsel provided Houseknecht with           a       copy of

the brief and the petition to withdraw, and advised him of his right to proceed

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pro se or with private counsel.              See Petition to Withdraw as Counsel,

12/17/2018. Despite this Court granting him an extension of time to do so,

Houseknecht has not responded to counsel's petition. Therefore, we proceed

to   a   consideration of whether the PCRA court erred in dismissing the petition.

See Doty, supra.

          "In reviewing the denial of   PCRA      relief, we examine whether the PCRA

court's determination      is   supported by the record and free of legal error."

Commonwealth v. Mitchell,               141       A.3d   1277, 1283-1284 (Pa.     2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that Houseknecht's petition was untimely. We agree.            A   petitioner

must file    a PCRA   petition within one year of the date the underlying judgment

becomes final. See 42 Pa.C.S.A.         §   9545(b)(1).

          The PCRA timeliness requirement, however, is mandatory and
          jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
          1035,1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
          A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
          753 A.2d 201,203 (2000)). The court cannot ignore a petition's
          untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248                    (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

          Houseknecht's judgment of sentence was final on April 3, 2006; 30

days5 after this Court affirmed the judgment of sentence and Houseknecht

failed to seek leave to appeal from the Pennsylvania Supreme Court. See




5   April 1,2006, the thirtieth day, was      a   Saturday.
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Pa.R.A.P. 1113(a); 42 Pa.C.S.A.          §   9545(b)(3). Therefore, he had until April

3, 2007, to file a timely PCRA petition. The one before us, filed January 14,

2016,   is   patently untimely.

        Nevertheless, we may still consider an untimely PCRA petition if one of

the    three     time -for -filing   exceptions applies.      See    42   Pa.C.S.A.   §


9545(b)(1)(i)-(iii). Here, Houseknecht contends his petition meets the newly

recognized constitutional right exception,6 which provides an avenue for relief

if the petitioner pleads and proves:

        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)(iii). For claims arising prior to December 24, 2017,

a   petitioner invoking an exception must file his petition within 60 days of the

date he or she could have presented the clainn.7 See Act 2018, Oct. 24, P.L.

894, No. 146, §2 and §3.



6 In her brief, counsel notes that Houseknecht "baldly" asserted in his pro se
PCRA petition that the governmental interference exception also applied.
Houseknecht's Brief, at 18. Counsel attempted inquiry of Houseknecht in
order to ascertain the bases of his claims but he did not reply. Petition to
Withdraw as Counsel, 12/17/2018, at 1.             Moreover, as noted above,
Houseknecht did not file a brief with this Court in which he explained the basis
for his claim of governmental interference. Therefore, we will not address
such an undeveloped allegation.

  Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could


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        Here, Houseknecht contends that the PCRA court erred in denying his

petition as untimely because of the newly recognized constitutional rights

announced in Alleyne v. United States, 570 U.S. 99 (2013), and the

Pennsylvania Supreme Court's subsequent decision in Commonwealth v.

Hopkins, 117 A.3d 247     (Pa. 2015).8    Houseknecht's Brief, at 15-17.     This

claim lacks merit.

        Houseknecht's reliance on Alleyne and Hopkins    is   misplaced because

neither the Pennsylvania nor the United States Supreme Court have held the

constitutional rights examined in those cases to be retroactive.9          To the

contrary, the courts in this Commonwealth have expressly rejected the notion

that Alleyne applies retroactively to cases on collateral review.            See

Commonwealth v. Washington, 142 A.3d 810, 814-815                   (Pa.   2016)

(holding that Alleyne does not apply retroactively to cases on collateral

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



have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, §2 and §3.

8 In Alleyne, the United States Supreme Court held that the Sixth Amendment
requires 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, supra at 103 (citation omitted). Thereafter, in Hopkins,
the Supreme Court held that 18 Pa.C.S.A. § 6317, requiring the imposition of
a mandatory minimum sentence if certain drug crimes occur within 1,000 feet
of a school, is unconstitutional under Alleyne. Hopkins, supra at 262.

9We note, moreover, that the trial court did not sentence Houseknecht under
18 Pa.C.S.A. § 6317, the mandatory minimum sentence provision found
unconstitutional in Hopkins.
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(stating that, "while this Court has held that Alleyne applies retroactively on

direct appeal, we have declined to construe that decision as applying

retroactively to cases during PCRA review").                 Because     Alleyne    is   not

retroactive to cases pending on collateral review, the derivative cases applying

Alleyne also are not retroactive.                 See,     e.g.,    Commonwealth v.
Whitehawk, 146 A.3d 266, 271         (Pa. Super. 2016) (holding         that Hopkins did

not announce new rule for purposes of retroactive application to cases on

collateral review but merely applied Alleyne to particular mandatory

minimum statute).          Therefore, Houseknecht fails to satisfy the newly

recognized constitutional right exception the PCRA time -bar.                     See 42

Pa.C.S.A.   §    9545(b)(1)(iii).   Therefore, we agree with the PCRA court's

determination that the instant petition      is   untimely, that the petition does not

satisfy any statutory exception, and that there          is no   jurisdiction for any court

to review the petition.

        Accordingly, we affirm.

        Order affirmed. Application to withdraw as counsel granted.




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Judgment Entered.




J    seph D. Seletyn,
Prothonotary
Date: 7/30/2019




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