J-A24003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

RICKIE ROBE RICHBURG

                        Appellant                   No. 1131 WDA 2016


                 Appeal from the PCRA Order June 29, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012136-2009
                                        CP-02-CR-0012137-2009
                                        CP-02-CR-0012139-2009


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED OCTOBER 27, 2017

      Rickie Robe Richburg appeals, pro se, from the June 29, 2016 order

entered in the Allegheny County Court of Common Pleas dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. We affirm.

      On June 30, 2010, the trial court sentenced Richburg to an aggregate

term of 20 to 40 years’ incarceration followed by 5 to 10 years’ probation

after Richburg pled guilty to a number of charges at dockets CP-02-CR-

0012136-2009,    CP-02-CR-0012137-2009,       CP-02-CR-0012138-2009,      and

CP-02-CR-0012139-2009.      On April 3, 2016, Richburg, pro se, filed the

instant PCRA petition challenging his convictions at dockets CP-02-CR-

0012136-2009,    CP-02-CR-0012137-2009,       and   CP-02-CR-0012139-2009.
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On April 25, 2016, the PCRA court appointed counsel.           On June 3, 2016,

PCRA counsel filed a Turner/Finley1 letter requesting permission to

withdraw as counsel.        On June 6, 2016, the PCRA court entered an order

informing Richburg that it intended to dismiss his petition and grant

counsel’s motion to withdraw. On June 29, 2016, the PCRA court dismissed

the petition. On June 30, 2016, Richburg filed a pro se objection to PCRA

counsel’s motion to withdraw. On July 26, 2016, Richburg filed a notice of

appeal.

       Richburg raises the following issues on appeal:

           I. Did the P.C.R.A. Court err in denying the Post Conviction
           Relief Act Petition without a hearing by misapprehending
           the retrospective application in Commonwealth v.
           Hopkins, 117 A.3d 247 ([Pa.] 2015) when it’s paradigm,
           Alleyne v. United States, 133 S.Ct. 2151 (2013) created
           a “substantive rule,” which “the Constitution requires State
           Collateral Review Courts to give retroactive effect to that
           rule?”

           II. Did the P.C.R.A. Court err in denying the Post
           Conviction Relief Act Petition without a hearing when Mr.
           Richburg filed the instant Post Conviction Relief Act Petition
           timely by filing within sixty (60) days of learning of the
           Supreme      Court     of   Pennsylvania’s     decision      in
           Commonwealth v. Hopkins, 117 A.3d 247 ([Pa.] 2015)?

           Ill. Did the P.C.R.A. Court err in denying the Post
           Conviction Relief Act Petition without a hearing when Mr.
           Richburg contends that through the Court’s inherent
           power, the P.C.R.A. Court always retains jurisdiction to
____________________________________________


       1
     Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).




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           correct his patently unconstitutional, and therefore illegal
           sentence?

Richburg’s Br. at 4 (proposed answers omitted).2

       Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error. We will not disturb

findings that are supported by the record.” Commonwealth v. Ousley, 21

A.3d 1238, 1242 (Pa.Super. 2011) (internal citation omitted).



____________________________________________


       2
        Pursuant to our March 9, 2017 order granting Richburg’s first request
for extension of time to file his brief, Richburg’s brief was due May 22, 2017.
The proof of postage in the certified record shows that the brief was mailed
on May 25, 2017. Accordingly, the Commonwealth raises an objection to
the timeliness of Richburg’s brief and requests dismissal of the appeal
pursuant to Pennsylvania Rule of Appellate Procedure 2188. Cmwlth.’s Br.
at 6-7.

       Under the “prisoner mailbox rule,” which applies to all pro se legal
filings by incarcerated litigants, a document is deemed filed on the date it is
delivered to prison authorities or deposited in a prison mailbox. Thomas v.
Elash, 781 A.2d 170, 176 (Pa.Super. 2001). “[A]n incarcerated litigant
must supply sufficient proof of the date of mailing.” Id. “[A]ny reasonably
verifiable evidence of the date that the prisoner deposits” the document with
prison authorities is acceptable. Commonwealth v. Jones, 700 A.2d 423,
426 (Pa. 1997). Richburg’s brief includes a certificate of service dated May
21, 2017; however, there is no evidence establishing when he delivered the
brief to prison authorities for mailing. “Where . . . the facts concerning
timeliness are in dispute, a remand for an evidentiary hearing may be
warranted.” Id. at 426 n.3. Because we conclude that Richburg is not
entitled to relief, we find that remand is unnecessary. See Thomas, 781
A.2d at 176 (finding that, although questions regarding timeliness of
appellant’s post-trial motions existed because document contained proof of
service that was not notarized, remand to PCRA court for evidentiary hearing
was unnecessary because appellant was not entitled to relief).



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      Furthermore, the right to an evidentiary hearing on a PCRA petition is

not absolute.    Commonwealth v. Springer, 961 A.2d 1262, 1264

(Pa.Super. 2008). “[I]f the PCRA court can determine from the record that

no genuine issues of material fact exist, then a hearing is not necessary.”

Id. (quoting Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super.

2008)).   “A reviewing court must examine the issues raised in the PCRA

petition in light of the record in order to determine whether the PCRA court

erred in concluding that there were no genuine issues of material fact and in

denying relief without an evidentiary hearing.” Id.

      Before we reach the merits of Richburg’s petition, we must determine

whether it was timely filed. It is well settled that “the timeliness of a PCRA

petition is a jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d

171, 175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015).          A PCRA

petition must be “filed within one year of the date the judgment becomes

final.” 42 Pa.C.S. § 9545(b)(1). A judgment 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 the review.” 42 Pa.C.S. § 9545(b)(3).

      Richburg did not file a post-sentence motion.         Thus, Richburg’s

judgment of sentence became final on July 30, 2010, when the time to file a

notice of appeal expired.   See Pa.R.Crim.P. 720 (stating that if defendant

does not file timely post-sentence motion, notice of appeal shall be filed


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within 30 days of imposition of sentence). Richburg’s current petition, filed

on April 3, 2016, is therefore facially untimely.

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:

         (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); see Brown, 111 A.3d at 175-76.          In

addition, when invoking an exception to the PCRA time bar, the petition

must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

      Richburg claims the U.S. Supreme Court’s decision in Alleyne and our

Supreme Court’s decision in Hopkins create a constitutional right that

should retroactively apply to this matter. However, in Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016), our Supreme Court held that

Alleyne does not apply retroactively to collateral attacks on mandatory

minimum sentences.       Thus, Alleyne, and by extension, Hopkins, are

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inapplicable to Richburg’s case, and he is unable to invoke the “new

constitutional right” exception to the PCRA’s timeliness requirement.         42

Pa.C.S. § 9545(b)(1)(iii).3       Accordingly, we conclude that Richburg’s PCRA

petition was untimely.

       Richburg next claims that this Court has the inherent power to correct

illegal sentences. “Although legality of sentence [claims are] always subject

to review within the PCRA, claims must still first satisfy the PCRA’s time

limits or one of the exceptions thereto.”         Commonwealth v. Infante, 63

A.3d 358, 365 (Pa.Super. 2013) (quoting Commonwealth v. Fowler, 930

A.2d 586, 592 (Pa.Super. 2007)).               Therefore, because Richburg’s PCRA

petition is untimely, this Court lacks jurisdiction to consider any claim,

including a challenge to the legality of his sentence.

       Accordingly, we conclude that the PCRA court’s dismissal of Richburg’s

petition as untimely is supported by the record and free of legal error. In
____________________________________________


       3
         Furthermore, to the extent that Richburg is claiming the Court’s
decision in Hopkins satisfies the “newly-discovered facts” exception to the
PCRA timeliness requirement, we note that “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.” Commonwealth
v. Cintora, 69 A.3d 759, 763 (Pa.Super. 2013). Moreover, Hopkins was
decided on June 15, 2015, and Richburg did not file his PCRA petition until
April 3, 2016.      Thus, even if Richburg had properly pled the newly-
discovered facts exception, he failed to file his petition within 60 days of the
Hopkins decision as required by section 9545(b)(2). See Commonwealth
v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012) (noting that even if judicial
decision qualified as newly-discovered fact under PCRA, petitioner did not file
his petition within 60 days of judicial decision).




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addition, because there are no genuine issues of material fact regarding the

timeliness of Richburg’s petition, the PCRA court appropriately dismissed the

petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017




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