J-S40020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROBERT L. WOODARD,                         :
                                               :
                      Appellant                :   No. 49 EDA 2017

                Appeal from the PCRA Order November 18, 2016
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0220171-1992


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

MEMORANDUM BY DUBOW, J.:                                   FILED JULY 11, 2017

        Appellant, Robert L. Woodard,1 appeals from the Order entered in the

Philadelphia County Court of Common Pleas dismissing his thirteenth Petition

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

9546, as untimely.         After careful review, we affirm on the basis that

Appellant’s PCRA Petition is untimely and this Court, thus, lacks jurisdiction

to review the Petition.




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*
    Former Justice specially assigned to the Superior Court.
1
  As this Court explained in a prior decision, Woodard’s surname is listed in
the certified record both as Woodward and Woodard. It appears that his
correct surname name is Woodard.            We have changed the caption
accordingly.
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       On December 10, 1992, a jury convicted Appellant of multiple counts

of Robbery, Burglary, Rape, and Possessing an Instrument of Crime.2       On

March 29, 1993, the trial court imposed an aggregate term of 48 to 96

years’ incarceration. On May 5, 1994, we affirmed Appellant’s Judgment of

Sentence.     See Commonwealth v. Woodard, 647 A.2d 268 (Pa. Super.

filed May 5, 1994) (unpublished memorandum).

       Appellant did not seek review by the Pennsylvania Supreme Court.

Appellant’s Judgment of Sentence, therefore, became final on June 4, 1994.

See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113.

       Over the course of the next twenty years, Appellant filed twelve PCRA

Petitions, each of which were dismissed either because they lacked merit or

because they were patently untimely under the strict terms of the PCRA.

This Court affirmed each dismissal on appeal.

       Appellant filed the instant pro se PCRA Petition, his thirteenth, on

September 19, 2016, more than twenty-two years after his Judgment of

Sentence became final.         Relying on Alleyne v. United States, 133 S.Ct.

2151 (U.S. 2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.




____________________________________________


2
  18 Pa.C.S. § 3701; 18 Pa.C.S. § 3502; 18 Pa.C.S. § 3121; and 18 Pa.C.S.
§ 907, respectively.



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Super. 2014),3 Appellant averred that he received an illegal mandatory

minimum sentence as a result of being sentenced under 42 Pa.C.S. § 9714.

       On October 4, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition. Appellant did not file

a response.

       On November 18, 2016, the PCRA court dismissed Appellant’s Petition

without a hearing, concluding that “Alleyne is inapplicable to [Appellant’s]

sentence.”4 PCRA Court Opinion, dated 11/18/16, at 1.

       Appellant timely appealed on December 14, 2016. The PCRA court did

not order Appellant to file a Pa.R.A.P. 1925(b) Statement of Errors.        The

PCRA court filed a brief Pa.R.A.P. 1925(a) Opinion incorporating several of

its prior Opinions.

       We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

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3
  Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proved beyond a reasonable doubt.
Alleyne, 133 S.Ct. at 2160-61. In Newman, this Court held that pursuant
to Alleyne, 42 Pa.C.S. § 9712.1 is no longer constitutional. Newman, 99
A.3d at 88.
4
  The PCRA court noted that this was Appellant’s fourth PCRA Petition
invoking Alleyne in an attempt to vacate his Judgment of Sentence.



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the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite). Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed.    Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).

      Here, Appellant’s Judgment of Sentence became final on June 4, 1994,

upon expiration of the time to file a Petition for Allowance of Appeal with the

Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113.

In order to be timely, Appellant needed to submit his PCRA Petition by June

4, 1995.   Id.   Appellant filed this PCRA Petition on September 19, 2016,


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more than two decades after the one-year deadline.            Thus, Appellant’s

Petition is facially untimely.

      Pennsylvania courts may consider an untimely PCRA petition if the

appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

      (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).      See also, e.g., Commonwealth v. Lark,

746 A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated

the claim had been timely raised within 60-day timeframe).




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       Here, in relying on Alleyne and Newman, supra, Appellant attempts

to invoke the timeliness exception under Section 9545(b)(1)(iii) to challenge

the legality of his sentence, averring that the court applied Section 9714’s

mandatory minimum.

       Although a legality of sentence claim cannot be waived, it must be

raised in a timely PCRA Petition. Commonwealth v. Jones, 932 A.2d 179,

182 (Pa. Super. 2007); 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (holding that “[a]lthough 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”).

       The United States Supreme Court decided Alleyne on June 17, 2013.

In order to invoke the “constitutional right” exception under 42 Pa.C.S. §

9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days

of June 17, 2013, i.e., by August 16, 2013.5 See Commonwealth v. Boyd,

923 A.2d 513, 517 (Pa. Super. 2007) (stating that the 60-day period begins

to run upon the date of the underlying judicial decision). Appellant filed this

PCRA Petition on September 19, 2016, over three years after the Alleyne

decision.

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5
  This Court applied Alleyne in Newman, supra, on August 20, 2014.
However, the clear terms of 42 Pa.C.S. § 9545(b)(1)(iii) only apply to
decisions issued by the U.S. Supreme Court and the Pennsylvania Supreme
Court. See also Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa. Super.
2016).



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       Moreover, our Supreme Court has recently reiterated that Alleyne

does not apply retroactively on post-conviction collateral review. See

Commonwealth v. Washington, 142 A.3d 810 (Pa. filed July 19, 2016).6

       Accordingly, Appellant failed to plead and prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly

dismissed Appellant’s untimely Petition.         The record supports the PCRA

court’s findings and its Order is free of legal error.    We, thus, affirm the

denial of PCRA relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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6
 Appellant acknowledges that Washington, supra, is “binding” precedent.
Appellant’s Brief at 10.



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