J-S72009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GREGORY CARLTON ARRINGTON,

                            Appellant                 No. 2174 EDA 2017


              Appeal from the PCRA Order Entered May 23, 2017
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001124-2012


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

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 16, 2018

        Appellant, Gregory Carlton Arrington, appeals pro se from the post-

conviction court’s May 23, 2017 order that denied, as untimely, his second

petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

        The facts underlying Appellant’s convictions are not necessary to our

disposition of his appeal.       We need only note that on October 30, 2013,

Appellant pled guilty to third-degree murder, two counts of attempted

murder, possession of a firearm by a person prohibited, and criminal

conspiracy. Pursuant to the negotiated plea agreement, he was sentenced

that same day to 10 to 20 years’ incarceration for his murder conviction, 10

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*   Former Justice specially assigned to the Superior Court.
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to 20 years’ incarceration for each of his two attempted murder convictions,

3 to 10 years’ incarceration for his firearm offense, and 20 years’ probation

for his conspiracy conviction.   These sentences were all imposed to run

consecutively, thus totaling an aggregate term of 33 to 70 years’

incarceration, followed by 20 years’ probation.

      Appellant did not file a direct appeal and, thus, his judgment of

sentence became final on November 30, 2013, at the expiration of the

thirty-day time-period for seeking review with this Court. See 42 Pa.C.S. §

9545(b)(3) (stating a judgment of sentence becomes final at the conclusion

of direct review or the expiration of the time for seeking the review);

Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of

appeal required by Rule 902 (manner of taking appeal) shall be filed within

30 days after the entry of the order from which the appeal is taken.”).

      On August 11, 2015, Appellant filed a pro se “Petition for Writ of

Habeas Corpus,” which the court treated as a PCRA petition. Counsel was

appointed, but subsequently petitioned for permission to withdraw.        The

court granted counsel’s petition to       withdraw, and it also     issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition.

Appellant did not respond, and on April 26, 2016, the court issued an order

dismissing his petition. Again, Appellant did not appeal.

      On March 30, 2017, Appellant filed another pro se PCRA petition which

underlies the present appeal. On May 1, 2017, the PCRA court issued a Rule

907 notice of its intent to dismiss Appellant’s petition as being untimely-

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filed.    Appellant filed a pro se response, but on May 23, 2017, the PCRA

court issued an order dismissing his petition. Appellant thereafter filed a pro

se notice of appeal.1        The PCRA court did not order Appellant to file a

Pa.R.A.P. 1925(b) statement. On July 10, 2017, the court issued an opinion

stating that it was relying on the rationale set forth in its Rule 907 notice to

support its dismissal of Appellant’s PCRA petition.

         Herein, Appellant raises three issues for our review. See Appellant’s

Brief at 1-3. However, before we may assess the merits of those claims, we

must begin by addressing the timeliness of Appellant’s petition, because the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of a petition. Commonwealth v.

Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition

for post-conviction relief, including a second or subsequent one, must be

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1 Appellant’s notice of appeal was docketed 31 days after entry of the court’s
order denying his PCRA petition, thus seemingly violating Rule 903(a)’s 30-
day requirement. Accordingly, on September 5, 2017, this Court issued a
rule to show cause why this appeal should not be quashed as untimely filed.
Appellant filed a timely response, claiming that he had submitted his notice
of appeal to prison authorities on June 19, 2017. Appellant also attached to
his response a “Monthly Account Statement” from the prison showing that
on June 20, 2017, a postage deduction was withdrawn from his account. In
light of Appellant’s response, we will accept that he deposited his appeal
with prison authorities by at least June 20, 2017, making it timely-filed
under the ‘prisoner mailbox rule.’ See Commonwealth v. Jones, 700 A.2d
423, 426 (Pa. 1997) (holding that the prisoner mailbox rule extends to a
notice of appeal filed by a pro se prisoner and, thus, an appeal shall be
“deemed ‘filed’ on the date that the appellant deposits the appeal with prison
authorities and/or places it in the prison mailbox”).



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filed within one year of the date the judgment of sentence becomes final,

unless   one   of   the   following   exceptions   set   forth   in   42   Pa.C.S.   §

9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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).     Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

      In this case, Appellant’s judgment of sentence became final on

November 30, 2013, and, thus, his current petition filed on March 30, 2017,

is facially untimely. For this Court to have jurisdiction to review the merits

thereof, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b).



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      In his petition, and on appeal, Appellant argues that his sentence is

illegal in light of Alleyne v. United States, 133 S.Ct. 2151 (2013), in which

the United States Supreme Court held that “facts that increase mandatory

minimum sentences must be submitted to the jury” and found beyond a

reasonable doubt.     Id. at 2163.      Presumably, Appellant’s reliance on

Alleyne is an effort to satisfy the ‘new retroactive right’ exception of section

9545(b)(1)(iii). Appellant also contends that because his sentence is illegal,

we must grant him relief pursuant to the plain language of the PCRA statute,

irrespective of the untimeliness of his current petition.    Namely, Appellant

relies on section 9542, which states: “This subchapter provides for an action

by which persons convicted of crimes they did not commit and persons

serving illegal sentences may obtain collateral relief.”          42 Pa.C.S. §

9542 (emphasis added).

      Initially, Appellant disregards the well-settled principle that, “although

a legality of sentence is always subject to review within the PCRA, claims

must first satisfy the PCRA’s time limits or one of the exceptions thereto.”

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999); see also

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

court may entertain a challenge to the legality of the sentence so long as the

court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is

tied to the filing of a timely PCRA petition.”).          Therefore, we reject

Appellant’s argument that he is entitled to relief under the language of

section 9542, despite the untimeliness of his petition.

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      Appellant has also failed to demonstrate that he satisfies the

timeliness exception of section 9545(b)(1)(iii). First, our Supreme Court has

held that Alleyne does not apply retroactively to collateral attacks on

mandatory minimum sentences.          See Commonwealth v. Washington,

142 A.3d 810 (Pa. 2016).         Therefore, Alleyne cannot be relied upon to

satisfy the ‘new retroactive right’ exception of section 9545(b)(1)(iii).

      Second, even if Alleyne did apply retroactively to Appellant’s case, we

would not deem his sentence illegal under the rule announced in that

decision.   The record confirms that there were no mandatory minimum

sentences   imposed     in   Appellant’s   case.   While   a   ‘deadly      weapon

enhancement’ (DWE) did apply to increase the applicable sentencing

guideline ranges for Appellant’s offenses, the DWE did not mandate a

minimum term of incarceration that the court was required to apply.

Therefore, Alleyne would not render Appellant’s sentence illegal, even if it

retroactively applied to his case.

      Finally, we point out that Alleyne was decided on June 17, 2013, and

Appellant’s petition was not filed until March 30, 2017, nearly four years

later. Consequently, Appellant has not satisfied the 60-day requirement of

section 9545(b)(2).

      For all of these reasons, the PCRA court did not err by dismissing

Appellant’s untimely petition.

      Order affirmed.




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J-S72009-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/18




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