J-S28027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

RYON C. WASHINGTON,

                          Appellant                  No. 2063 MDA 2014


            Appeal from the PCRA Order entered October 30, 2014,
                in the Court of Common Pleas of York County,
             Criminal Division, at No(s): CP-67-CR-0006027-2005


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY ALLEN, J.:                                FILED MAY 06, 2015

        Ryon C. Washington (“Appellant”) appeals pro se from the order

denying his third petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

        The pertinent facts and procedural history are as follows: On January

5, 2006, Appellant entered a negotiated guilty plea, at two separate docket

numbers, to multiple counts of drug and drug-related offenses. That same

day, the trial court sentenced Appellant to an aggregate, negotiated

sentence of ten to twenty years of imprisonment.       Appellant did not file a

direct appeal.

        On March 21, 2006, Appellant filed his first PCRA petition. The PCRA

court appointed counsel, and an evidentiary hearing was held on May 22,

2006.    At the hearing, Appellant withdrew his PCRA petition after learning
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that, if permitted to withdraw his negotiated plea, he would lose the benefit

of his plea agreement, and could be exposed to mandatory minimum

sentences totaling twenty-nine years of incarceration. See N.T., 5/22/06, at

3-6.

       On February 17, 2009, Appellant filed a second PCRA petition in which

he asserted that his ten to twenty-year sentence was illegal and excessive.

The PCRA court denied Appellant’s petition, and Appellant filed a timely

appeal to this Court. In an unpublished memorandum filed on September

14, 2010, this Court quashed Appellant’s appeal because the defects in his

pro se brief rendered his claims incapable of meaningful review.                 See

Commonwealth v. Washington, 13 A.3d 983 (Pa. Super. 2010). We also

noted that Appellant’s PCRA petition was untimely filed. Id.

       Appellant filed his third PCRA petition on September 12, 2014.             On

September 18, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s petition, in which it explained Appellant’s failure

to establish an exception to the PCRA’s time bar.          Appellant filed a timely

response.    By order entered October 30, 2014, the PCRA court denied

Appellant’s PCRA petition. This timely appeal followed. Both Appellant and

the PCRA court have complied with Pa.R.A.P. 1925.

       This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence   of   record   and   is    free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

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court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).       Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      Before addressing the substantive claims raised by Appellant in his pro

se brief, we must first determine whether the PCRA court properly

determined that Appellant’s third PCRA petition was untimely.

      The   timeliness   of    a   post-conviction   petition   is   jurisdictional.

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

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

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

raised in an untimely petition. Id.

      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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has


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been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled 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); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Appellant’s judgment of sentence became final on or about February 6,

2006, after the expiration of time for filing an appeal to this Court. See 42

Pa.C.S.A. § 9545(b)(3). In order to be timely, Appellant had file his petition

by February 6, 2007. Appellant did not file his third petition until September

12, 2014, over seven years later.         Thus, Appellant’s petition is untimely,

unless he has satisfied his burden of pleading and proving that one of the

enumerated time-bar exceptions applies. See Commonwealth v. Beasley,

741 A.2d 1258, 1261 (Pa. 1999).




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     Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions.   The PCRA court addressed Appellant’s

unsuccessful attempt to meet this burden:

           The crux of [Appellant’s] argument is that the United
        States Supreme Court created a new constitutional right
        when it held that “[m]andatory minimum sentences
        increase the penalty for a crime . . . . [so] any fact that
        increases the mandatory minimum is an ‘element’ [of the
        crime] that must be submitted to the jury.” [Alleyne v.
        United States, 133 S.Ct. 2151, 2155 (2013)].             The
        Superior Court has determined that Alleyne renders 42
        Pa.C.S.A. § 9712.1 unconstitutional because “[i]t permits
        the trial court, as opposed to the jury, to increase a
        defendant’s     minimum      sentence     based   upon     a
        preponderance of the evidence,” rather than beyond a
        reasonable      doubt    as      required    by    Alleyne.
        Commonwealth v. Newman, [99 A.3d 86, 98 (Pa.
        Super. 2014) (en banc)]. Assuming that the United States
        Supreme Court’s decision in Alleyne does create a new
        constitutional right, [Appellant’s] arguments fail for three
        reasons:

           First, Alleyne and its progeny do not apply to
        [Appellant’s] case.    He was sentenced pursuant to a
        negotiated plea deal.      Thus, he was never actually
        subjected to 42 Pa.C.S.A. § 9712.1. [Appellant] avoided
        being subject to the mandatory minimums by agreeing to
        plead guilty, which he was informed of in his hearing on
        his first PCRA petition held on May 22, 2006. See N.T.,
        5/22/2006, at 3.

           Second, in order to satisfy the time-bar exception
        contained in 42 Pa.C.S.A. § 9545(b)(1)(iii), a new
        constitutional right must have been created and either the
        United States Supreme Court or the Pennsylvania Supreme
        Court would have to have held that right to be retroactive.
        In Newman, the Superior Court determined that Alleyne
        applied retroactively to the defendant in that case because
        his judgment of sentence was not yet final. Newman, [99
        A.3d at 90]. However, a little over a month later, that
        same court refused to apply Alleyne retroactively to a
        defendant’s judgment of sentence that had become final.

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        Commonwealth v. Miller, [102 A.3d 988, 995 (Pa.
        Super. 2014)]. The court noted, “neither our Supreme
        Court, nor the United States Supreme Court have held that
        Alleyne applies retroactively to cases in which the
        judgment of sentence has become final.” Id. Therefore,
        because neither the Pennsylvania Supreme Court or the
        United States Supreme Court have declared Alleyne
        applies retroactively to judgments of sentence that are
        final, [Appellant’s] argument for exception under §
        9545(b)(1)(iii) fails.

           Third, as [Appellant] states in his response, a challenge
        based on Alleyne does implicate the legality of a
        sentence. Newman, [99 A.3d at 90]. However, even
        “though not technically waivable, a legality of sentence
        claim may nevertheless be lost should it be raised . . . in
        an untimely PCRA petition for which no time-bar exception
        applies.” Miller, [102 A.3d at 995]. Because [Appellant]
        has not successfully raised a time-bar exception under §
        9545(b)(1), this Court is without jurisdiction over the
        claim.

PCRA Court Opinion, 10/30/14, at 3-4.

     Our review of the record supports the PCRA court’s conclusion that it

lacked jurisdiction to consider Appellant’s third PCRA petition. Accordingly,

we affirm the PCRA court’s order denying Appellant post-conviction relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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