J-S64019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

CHRISTOPHER SINGLETARY

                            Appellant                  No. 382 EDA 2016


                  Appeal from the PCRA Order January 7, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0729881-1993

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 05, 2016

        Appellant, Christopher Singletary, appeals pro se from the order

denying his fifth petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court denied relief on the

basis that Appellant’s petition was untimely, and therefore not within its

jurisdiction. Upon review, we affirm.

        On April 4, 1994, a jury convicted Appellant of robbery, burglary,

conspiracy, and violation of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-

6126.     On February 7, 1995, the trial court sentenced Appellant to an

aggregate 47½ to 95 years’ incarceration.       In imposing the sentence, the

trial court relied in part on the mandatory minimum sentence prescribed for

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S64019-16


firearms violations in the Sentencing Code, 42 Pa. C.S. § 9712(a).       The

PCRA court summarized the subsequent procedural history as follows:

            On January 19, 1996, following a direct appeal, the
            Superior Court affirmed the judgment of sentence.
            [Appellant] did not seek an allowance of appeal in
            the Pennsylvania Supreme Court.

            On September 13, 1996, [Appellant] filed his first
            timely pro se PCRA petition and counsel was
            appointed. On September 3, 1998, the PCRA court
            denied his petition. On March 31, 2000, the Superior
            Court affirmed the denial of relief. The Pennsylvania
            Supreme Court denied allocatur on July 25, 2000.

            Over the next twelve years, [Appellant] submitted
            three additional petitions for collateral relief, all of
            which were denied as meritless or untimely. On July
            30, 2015, [Appellant] filed the instant pro se PCRA
            petition, his fifth. Pursuant to Pennsylvania Rule of
            Criminal Procedure 907, [Appellant] was served
            notice of the lower court’s intention to dismiss his
            petition on November 24, 2015. On January 7,
            2016, the PCRA court dismissed his petition as
            untimely. On January 29, 2016, the instant notice of
            appeal was timely filed to the Superior Court.

PCRA Court Opinion, 2/23/16, at 1-2 (footnotes omitted).

      In his current petition, his fifth, Appellant argues that his sentence

pursuant to the mandatory minimum requirements in Section 9712 of the

Sentencing Code was unconstitutional and “illegal.”           The PCRA court

dismissed Appellant’s petition on the ground that it was untimely and outside

of the enumerated statutory exceptions to the PCRA’s jurisdictional time bar.

Id. at 2.

      On appeal, Appellant presents the following issue:


                                     -2-
J-S64019-16


            AS THE PENNSYLVANIA SUPERIOR AND SUPREME
            COURTS HAVE FOUND SECTION 9712 TO BE
            FACIALLY UNCONSTITUTIONAL IN ITS ENTIRETY, IS
            THE APPELLANT ENTITLED TO RELIEF FROM HIS
            ILLEGAL SENTENCE AS THE STATUTE HAS BEEN
            UNCONSTITUTIONAL FROM THE DATE OF ITS
            PASSAGE AND INEFFECTIVE FOR ANY PURPOSE?

Appellant’s Brief at 5.

      In Alleyne v. United States, 133 S.Ct. 2151 (2013), the U.S.

Supreme Court held that any fact that increases a mandatory minimum

sentence for a crime is an element of the crime that must be proven before

a jury beyond a reasonable doubt. Appellant observes that several decisions

by the Supreme Court of Pennsylvania and this Court have held that various

provisions of Pennsylvania’s mandatory minimum sentence statutes are

unconstitutional in light of Alleyne.      See Appellant’s Brief at 9-11, citing

Commonwealth         v.   Hopkins,    117      A.3d   247   (Pa.   2015),   and

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). He

argues that in light of these decisions, his sentence is now illegal and void ab

initio and must be vacated. Appellant’s Brief at 6, 10.

      Our review of the PCRA court’s order dismissing Appellant’s claim is

limited to ascertaining whether the record supports the determination of the

PCRA court and whether that court’s ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We defer to

the factual findings of the PCRA court, “but its legal determinations are

subject to our plenary review.”      Id.     The PCRA court has discretion to


                                     -3-
J-S64019-16


dismiss a petition without a hearing when the court is satisfied that no

genuine issues of material fact have been raised, no legitimate purpose

would be served by further proceedings, and the petitioner is not entitled on

the merits to post-conviction relief.          Pa.R.Crim.P. 909(B)(2).   Where the

PCRA court denies a petition without a hearing, we “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 there were no genuine issues of

material fact and in denying relief without an evidentiary hearing.”

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

        The PCRA court dismissed Appellant’s petition as untimely.            The

timeliness of a post-conviction petition is jurisdictional. Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for

relief under the PCRA, including a second or subsequent petition, must be

filed within one year of the date the judgment is final unless the petition

alleges and the petitioner proves one of the three exceptions to the time

limitations for filing the petition set forth in Section 9545(b)(1) of the

statute.1    42 Pa.C.S. § 9545(b).         A PCRA petition invoking one of these

____________________________________________


1
    The three exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.

(Footnote Continued Next Page)


                                           -4-
J-S64019-16


statutory exceptions must “be filed within 60 days of the date the claims

could have been presented.”            Hernandez, 79 A.3d at 651-52 (citing 42

Pa.C.S. § 9545(b)(2)).         Asserted exceptions to the time restrictions in the

PCRA must be included in the petition, and may not be raised for the first

time on appeal.         Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.

Super. 2007).

      Upon review, we conclude that the Honorable Jeffrey P. Minehart,

sitting as the PCRA court, ably addressed the untimeliness of Appellant’s

PCRA petition.     See PCRA Court Opinion, 2/23/16, at 1-4.           His opinion

explained the well-settled legal principle that neither claims challenging

sentence legality nor the finding that a statute is unconstitutional can negate

the PCRA’s jurisdictional time restrictions. Id. at 4 (citing Commonwealth

v. Grafton, 928 A.2d 1112 (Pa. Super. 2007); see also Commonwealth v.

Fahy, 737 A.2d 214 (Pa. 1999). His opinion holds that Appellant’s “failure

to plead specifically the applicability of any of the exceptions to the time

                       _______________________
(Footnote Continued)

      (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).



                                            -5-
J-S64019-16


requirements of the PCRA was fatal to his petition.” PCRA Court Opinion at

4. We agree, and we adopt the PCRA court’s February 23, 2016 opinion with

regard to the timeliness issue.

      Appellant insists that he should be entitled to relief regardless of

whether or not his petition was timely under the PCRA.          In his brief, he

recognizes that constitutional arguments based on Alleyne could be

presented as an exception to the PCRA’s time bar only if Alleyne had been

held by the Supreme Court to apply retroactively to cases on collateral

review, see 42 Pa.C.S. § 9545(b)(1)(iii), and that Alleyne has been held

not   to   apply   retroactively.    Appellant’s   Brief   at   10;   see   also

Commonwealth v. Washington, No. 37 EAP 2015, 2016 WL 3909088, at

*8 (Pa. July 19, 2016) (confirming that Alleyne does not apply retroactively

to cases on collateral review). Appellant emphasizes that he “is not arguing

this issue.” Appellant’s Brief at 10. Rather, he argues that the invalidity of

the mandatory minimum sentencing statutes under Alleyne makes such

statutes “illegal” and “a nullity” and that this illegality dates back to the

dates of the statutes’ enactment. This defect, he claims, “renders any time

bar null and void as the statute is, in its entirety, void ab initio.” Id. at 10-

11.

      As the PCRA court held, Appellant’s argument has “erroneously

conflated the validity of [the] mandatory minimum statute . . . with that of

the PCRA time bar.” PCRA Court Op. at 4. The Post Conviction Relief Act


                                      -6-
J-S64019-16


makes clear that compliance with the time limits set forth in that Act is a

jurisdictional prerequisite to bringing a claim. There is no exception to the

Act’s time limits for claims asserting that a sentence was “illegal.”2 Rather,

as the Supreme Court explained in Commonwealth v. Fahy, 737 A.2d at

223, “Although legality of sentence is always subject to review within the

PCRA, claims must still first satisfy the PCRA's time limits or one of the

exceptions thereto.”      Appellant’s failure to file his claim within those time

limits therefore deprived the PCRA court of jurisdiction to hear his claim.

       In sum, the PCRA court correctly concluded that it lacked jurisdiction

to consider Appellant’s untimely PCRA petition, and we affirm its order in this

regard. In the event of further proceedings in this matter, the parties shall

attach a copy of the PCRA court’s February 23, 2016 opinion, as well as this

memorandum.

       Order affirmed.




____________________________________________


2
   We add that Appellant is mistaken in his contention that his sentence
pursuant to the mandatory minimum sentencing statute was “illegal.” As
the Supreme Court of Pennsylvania recently explained, the sentence would
be “illegal” only if Alleyne applied retroactively to the statute at the time of
Appellant’s sentencing. Because Alleyne does not apply retroactively, this
is not the case. Commonwealth v. Washington, 2016 WL 3909088, at 3-
4.



                                           -7-
J-S64019-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




                          -8-
                                                                                                                    Circulated 09/09/2016 04:13 PM


                                                    .                                       '
                                    IN THE COURT OF CO:M:M:ON PLEAS
                               FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                        CRIMJNAL TRIAL DIVISION


    COJ:v1MONWEALTH OF
    PENNSYLVANIA                                        CP-51-CR-0729881-1993


              vs.                                                               FILED
                                                                            FEB 2· S .2Q16
    CHRISTOPHER SINGLETARY,                                            Criminal ARpeals Unit
                         Petitioner                                  First Judicial District of PA
                                                    OPINION

    MINEHART,J

           The lower court dismissed the Post-Conviction Relief Act ("PCRA") petition filed on July 30~

    2015, for the reasons set forth below.1

                                              PROCEDURAL IIlSTORY

           On April 4, 1994, following a jury trial, Petitioner was convicted of robbery (3 counts), burglary,

    conspiracy, and violation of the Uniform Firearms Act. On February 7, 1995, Petitioner was sentencedto

    an aggregate term of forty-seven and one half to ninety-five years' imprisonl'nent. On January 19, 1996,

following a direct appeal, the Superior Court affirmed the judgment of sentence.2 Petitioner did not seek

an allowance of appeal in the Penns~lvania Supreme Court.
          · On September 13, 1996, Petitioner filed his first timely pro se PCRA petition and counsel was

appointed. On September 3, 1998, the PCRA,courtdenied his petition. On March 31, 2000,'the Superior

Court affirmed the denial of relief.3 The Pennsylvania Supreme Court denied allocatur on July 25, 2000.4


I
  The Order was issued more than twenty days after Petitioner was served with notice of the forthcoming dismissal
of hisPost Conviction Relief Act petition, Pa.RiCrim.P. 907.                                           ·
2
  Commonwealth v. Singletary, 676 A.2d 286 (Pa. Super. l 996)(unpublished memorandum).
3
  Commonwealth v. Singletary, 757 A.2d 997 (Pa. Super. 2000)(unpublished memorandum).
4 Commonwealth v. Singletary, 759 A.2d 922 (Pa. 2000).       . ·· ·:· · · ,    ·. ····   _ ·
                                                             .   CP-!i1-CIH>n9BB1·1ij93 Corrm. v. S,igletary, Chrlstophe · ·
                                                                             •   Me~r11ndum Opollon



                                                         1
                                                                       1111 IHII II 11111
                                                                                  7A10~?A!=l41
                                    ,,   ..... '\                             ,•"'\'\.

                                   .. . i
                                                                             : : . <}


          Over the next twelve years, Petitioner submitted three additional petitions for collateral relief, all

  of which were denied as meritless or untimely. On July 30, 2015, Petitioner filed the instant prose PCRA

  petition, his fifth. Pursuant to Pennsylvania Rule of Criminal Procedure 907, Petitioner was served notice.

  of the lower court's intention to dismiss his petition on November 21J, 2015. On January 7, 2016, the

  PCRA court dismissed his petition as untimely. On January 29, 2016, the instant notice of appeal was·

 timely filed to .the Superior Court.

                                                    DISCUSSION

         Petitioner's current PCRA petition was untimely filed and none of the exceptions to the time-bar

 are applicable. As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional requisite.

 Commonwealth v. Robinson, 12 A.3d 477 (Pa. Super. 2011). A PCRA petition, including a second or

 subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42

 Pa.C.S.A. § 9S45(b)(l). A judgment is deemed 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.A. § 9545(b)(3).

        The three statutory exceptions to the timeliness provisions in. the PCRA allow for very limited

circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(l). To

invoke an exception, a petition must allege and the petitioner must prove:

        (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.A. § 9545(b)(l)(i)-(iii). Subsection 9545(b)(1)(iii) is the newly-recognized, and retroactively-

applied, constitutional fight exception.

                                                       2
                                        . . .. -.,
                                           .,
                                           :
                                                     '':"
                                               '<.~:)t
..
                  Subsection (iii) of Section 9545[(b)(l)] has two requirements. First, 'it provides that 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 provided in this section. Second, it provides
                  that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner must prove
                . that there is a "new" constitutional right.and that the rightv'has been held" by that court to apply
                  retroactively. The language "has been held" is in the past tense. These words mean that the action
                  has already occurred, i.e., "that court" has already held the new constitutional right to be
                  retroactive to cases on collateral review. By employing the past tense in writing this provision, the
                  legislature clearly intended that the right was already recognized at the time the petition was filed.

         Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007) (quoting Commonwealth v.

         Abdul-Salaam,   812A.2d 497, 501 (Pa. 2002)). ·

                Additionally, a PCRA petitioner must present his claimed exception within sixty days of the date

         the claim first could have been presented. 42 PaC.S.A. § 9545(b)(2). "As such, when a PCRA petition is

         not filed within one year of the expiration of direct review, or not eligible for one of the three limited ·

         exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim

         could have been first brought, the PCRA court has no power to address the substantive merits of a

     petitioner's PCRA claims." Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa 2000).

                Petitioner's instant petition challenged the legality of his sentence in light of Commonwealth v.

     Newman, 99 A.3d 86 (Pa. Super. 2014).                  Petitioner's judgment of sentence became final for PCRA

     purposed on February 18, 1996, thirty days after the Superior Court affirmed the judgment of sentence.

     His current petition, filed on July 30, 2015            was therefore   untimely .by approximately eighteen years.

     Rather than complying with 42 Pa.C.S.A. § 9545(b)(l), Petitioner repudiated his obligation to establish

     timeliness, arguing that the time-bar is .inapplicable due to the illegality of his sentence.5 See 907


     5
   It is readily apparent that the only exception to the time requirements of the Actthat could conceivably apply is
 the exception enumerated at§ 9545(b)(l)(iii), which Petitioner explicitly disavowed. See PCRA petition, 7/30/15,
 at 6. Nonetheless, his petition referencing Alleyne was deficient in two distinct, but equally fatal ways. Firstly, his
 petition failed to invoke the exception within sixty days of the date the claim could have been presented, namely
 June 17, 2013, the date the United States Supreme Court decided Alleyne. His petition was not filed until 2015,
 well beyond the sixty-day mandate. Secondly, in the recent decision Commonwealth v. Miller, 102 A.3d 988, 995
 (Pa. Super. 2014), 'the Superior Court concluded that "even assuming that Alleyne did announce a new
 constitutional right, 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."


                                                                  3
                                   I
                                        ,t',•    ....
                                                  •$ •
                                                                              ~,...,   .... '·
                                                . I
                                                                                       . ;'
     I•                                -.           '                                     •.
•· response, 12/10/15 at 2. Petitioner's argument erroneously conflated the validity of mandatory minimum

  statute 42 Pa.C.S.A. § 9712.1 with that ofthe PCRA time-bar, Furthermore, a claim of sentence illegality

  is not an exception to the PCRA court's timeliness requirement. Commonwealth v. Pate, 2014 WL

  10790083, at *1 (Pa Super. 2014) (citing Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa. Super.

· 2007)("even claims that a sentence is illegal ... are not beyond the jurisdictional time restrictions.t'j).

  Petitioner's failure to plead specifically the applicability of any of the exceptions to the time requirements

  of the PCRA was fatal to his petition. Accordingly, for the reasons stated herein, it is suggested that the

 decision of the court dismissing the PCRA petition be affirmed.

                                                         BY1HE



                                                         HQN. JEFFREY;P . INEHAR T




                                                         4
