J-S38026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

CASHEEM PIERCE,

                        Appellant                  No. 2677 EDA 2015


              Appeal from the PCRA Order of August 12, 2015
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001705-2012


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.:                             FILED JULY 12, 2016

      Appellant, Casheem Pierce, appeals pro se from the order entered on

August 12, 2015, dismissing his second petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the facts and procedural history of this

case as follows:

        On April 18, 2013, [Appellant] entered into an open guilty
        plea [to three counts of possession with intent to deliver
        narcotics, 35 P.S. § 780–113(a)(30)].       [Appellant] was
        sentenced on August 23, 2013 [to an aggregate term of five
        to 10 years of imprisonment]. [Appellant] did not file a
        post-sentence motion or a [n]otice of [a]ppeal. On March
        28, 2014, [Appellant] filed a PCRA [petition]. Counsel was
        appointed for [Appellant]. The first PCRA [p]etition was
        denied and dismissed on December 16, 2014. [Appellant]
        did not appeal that [o]rder.

        [Appellant’s] second PCRA [p]etition was filed as a [m]otion
        to [m]odify [s]entence on April 17, 2015. The overall basis
        for the [p]etition [was Appellant’s] allegation that his
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          sentence is illegal based on the unconstitutionality of
          mandatory minimum sentences. [Appellant] relie[d] on the
          rulings in Alleyne v. United States, 133 S. Ct. [2151]
          (2013) and Commonwealth v. Newman, 99 A.3d 86 (Pa.
          2014).

PCRA Court Order, 8/12/2015, at 1 n.2.          The PCRA court denied relief by

order dated August 12, 2015. This timely appeal resulted.

      On appeal, Appellant presents the following issues, pro se, for our

review:

          I.      Did the PCRA [c]ourt err in denying [Appellant’s]
                  PCRA [p]etition as facially untimely when fundamental
                  fairness demands a liberally construed Pennsylvania
                  Rules of Appellate Procedure (Pa.R.A.P.) Rule 302 due
                  to the fact that [Appellant] originally filed a “[m]otion
                  to [m]odify [s]entence?”

          II.     Did the PCRA [c]ourt err in denying [Appellant’s]
                  PCRA [p]etition without a hearing when [Appellant]
                  was sentenced on August 23, 2013; subsequent to
                  the United States Supreme Court’s decision in
                  Alleyne v. United States, 133 S. Ct. [2151] (2013)
                  rendered on June 17, 2013, which stare decisis
                  requires prospective application of the “new rule”
                  announced in Alleyne in the case sub judice?

          III.    Did the PCRA [c]ourt err in denying [Appellant’s]
                  PCRA [p]etition without a hearing when [Appellant’s]
                  sentence is unconstitutional, ergo illegal under the
                  “new rule” announced in Alleyne v. United States,
                  133 S. Ct. (2013) and is “forever void” ab initio
                  thereby lacking statutory authorization, for which
                  through inherent power the PCRA [c]ourt always
                  retains jurisdiction to correct?

Appellant’s Brief at 4.

      All of Appellant’s claims are inter-related, thus, we will examine them

together.        Essentially, Appellant argues his sentence is illegal because


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although he pled guilty to the aforementioned charges on April 18, 2013, the

trial court nonetheless imposed a mandatory minimum sentence on August

23, 2013 in violation of the United States Supreme Court’s decision in

Alleyne.    Accordingly, Appellant argues he was entitled to prospective

application of Alleyne. Id. at 10-13. Appellant contends “the PCRA [c]ourt

always retains jurisdiction to correct his patently illegal sentence.”    Id. at

14.

      The applicable scope and standard of review is well settled.         “As a

general proposition, we review a denial of PCRA relief to determine whether

the findings of the PCRA court are supported by the record and free of legal

error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014). As

this Court has said, “the timeliness of a PCRA petition is a jurisdictional

threshold and may not be disregarded in order to reach the merits of the

claims raised in a PCRA petition that is untimely.”        Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super 2014).            “Timeliness is separate and

distinct from the merits of appellant’s underlying claims,” and without it, “we

simply do not have the legal authority to address the substantive claims.”

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citations

and quotations omitted). Even when a petitioner has sound, legal reasons

for believing his sentence to be illegal, his claim “still must be presented in a

timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.

Super. 2013).


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         [The PCRA requires] a petitioner to file any PCRA petition
         within one year of the date the judgment of sentence
         becomes final. A judgment of sentence becomes final at the
         conclusion of direct review . . . or at the expiration of time
         for seeking review.

         However, an untimely petition may be received when the
         petition alleges, and the petitioner proves, that any of the
         three limited exceptions to the time for filing the petition
         are met.[1] A petition invoking one of these exceptions
         must be filed within sixty days of the date the claim could
         first have been presented. In order to be entitled to the
         exceptions to the PCRA’s one—year filing deadline, the
         petitioner must plead and prove specific facts that
         demonstrate his claim was raised within the sixty-day
         timeframe.

Lawson, 90 A.3d at 4-5.

       Here, the trial court sentenced Appellant on August 23, 2013, and

Appellant did not file a post-sentence motion or notice of appeal.
____________________________________________


1
    The exceptions to the timeliness requirement are:

         (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 the 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)(1)(i-iii).



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Accordingly, Appellant’s judgment of sentence became final on September

23, 2013 when the period for seeking direct appeal expired.            See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903. Thus, Appellant had until September

23, 2014 to file a timely PCRA petition.       Appellant filed his current PCRA

petition on April   17, 2015    and, therefore, it is patently untimely.

See 42 Pa.C.S.A. § 9545(b)(1) (“Any petition under [the PCRA], 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 [one of the timeliness exceptions.”).

     Furthermore, this Court has previously determined that Alleyne is not

retroactive and cannot serve as the basis for invoking the timeliness

exception found at 42 Pa.C.S.A. § 9545(b)(1)(iii). See Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa. Super. 2014). In Miller, we stated:


     Subsection (iii) of Section 9545(b)(1) 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 right
     “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.



                          *           *             *

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      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.

      This is fatal to [an a]ppellant’s argument regarding the PCRA
      time-bar. This Court has recognized that a new rule of
      constitutional law is applied retroactively to cases on collateral
      review only if the United States Supreme Court or our Supreme
      Court specifically holds it to be retroactively applicable to those
      cases. Therefore, appellant has failed to satisfy the new
      constitutional right exception to the time-bar.

Id. at 994-995.     Here, the PCRA court simply did not have jurisdiction to

entertain Appellant’s claim.     See Taylor, 65 A.3d 465 (claims challenging

legality of sentence may not be waived but must be preserved in a timely

PCRA petition).

      Order affirmed.

      Judge Jenkins joins this memorandum. President Judge Emeritus Ford

Elliott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2016




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