J-S07019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ANTHONY GLEN WRIGHT

                            Appellant                     No. 958 MDA 2015


                  Appeal from the PCRA Order April 30, 2015
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000193-2009


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                      FILED MAY 03, 2016

        Anthony Glen Wright appeals pro se from the order entered April 30,

2015, in the Court of Common Pleas of Franklin County, denying his second

petition for relief pursuant to the Pennsylvania Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541–9546.                The PCRA court dismissed Wright’s

petition as untimely. Wright contends the PCRA court erred in 1) denying

his petition where he established a prima facie showing that a miscarriage of

justice occurred, when he was illegally sentenced, improperly charged and

convicted; 2) concluding that it lacked jurisdiction to hear his case; 3)

concluding that Alleyne v. United States, 133 S. Ct. 2151 (2013) (filed

June 17, 2013), does not apply to his case, when the provisions of 42

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Pa.C.S. § 97181 have been deemed unconstitutional; 4) concluding that

Alleyne does not apply to his case under 42 Pa.C.S. § 9795.42; and 5) not

granting a hearing to develop the record.           For the following reasons, we

affirm.

       The parties are well acquainted with the underlying factual and

procedural history, and, therefore, we do not recite it herein.        See PCRA

Court Opinion, 6/19/2015, at 1–4.              The PCRA Court dismissed Wright’s

second PCRA petition as untimely, and this appeal followed.3,     4


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1
  Section 9718 provides mandatory minimum sentences for “offenses against
infant persons.” 42 Pa.C.S. § 9718.
2
  42 Pa.C.S. § 9795.4 deals with assessment of an individual to determine if
the individual should be classified as a sexually violent predator.
3
  The Franklin County Court of Common Pleas denied Wright’s PCRA petition
by order dated January 29, 2015, and entered on the docket on April 30,
2015. The PCRA court, in its opinion, noted that “following an investigation,
this Court could not discern the reason for the delay” between the date of
the January 29, 2015, order and the date of its filing. Pa.R.A.P. 1925(a)
Opinion, 6/19/2015, at 4.

      Following the April 30, 2015 entry of the order, Wright filed a “notice
of appeal nunc pro tunc.” While Wright’s notice of appeal was entered on
the court’s docket on June 4, 2015, it appears to be timely filed from the
PCRA court’s order denying him relief.

       The thirtieth day of the 30-day appeal period fell on Saturday, May 30,
2015, and, therefore, the final day of the appeal period was Monday, June 1,
2015. See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period
shall fall on Saturday or Sunday, or on any day made a legal holiday by the
laws of this Commonwealth or of the United States, such day shall be
omitted from the computation.”). See also Pa.R.A.P. 903 (30-day appeal
period). Because Wright is incarcerated, he is entitled to the “prisoner
(Footnote Continued Next Page)


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      As a threshold matter, we must address the timeliness of the PCRA

petition.   Therefore, we first consider Wright’s second issue regarding the

jurisdiction of the court, together with his third issue regarding Alleyne.

      As the timeliness of a PCRA petition is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014).

      [T]he timeliness of a PCRA petition is a jurisdictional requisite.
      Commonwealth v. Robinson, 2011 PA Super 12, 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. § 9545(b)(1). 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)(1).
      To invoke an exception, a petition must allege and the
      petitioner must prove:


                       _______________________
(Footnote Continued)

mailbox rule,” which provides that a document is filed when placed in the
hands of prison authorities for mailing. Commonwealth v. Wilson, 911
A.2d 942, 944 n.2 (Pa. Super. 2006). Wright dated his notice of appeal June
1, 2015, and the mailing envelope bears a postage stamp, stating “Inmate
Mail Department of Corrections,” and the date of “June 1, 2015.” Therefore,
Wright’s appeal is considered filed on June 1, 2015, when he placed it in the
prison mail. As such, we find the appeal to be timely.
4
  On June 1, 2015, Wright also filed a statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), which was entered on the docket on
June 4, 2015.



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           (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). Additionally, a PCRA petitioner
        must present his claimed exception within sixty days of the date
        the claim first could have been presented. 42 Pa.C.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, 562 Pa. 70, 77,
        753 A.2d 780, 783 (2000).

Commonwealth v. Brown, 111 A.3d 171, 175–176 (Pa. Super. 2015)

(emphasis in original), appeal denied, 125 A.3d 1197 (Pa. 2015).

        In this case, the trial court sentenced Wright on June 4, 2010, and this

Court    affirmed    the   judgment    of   sentence   on   August    19,      2011.

Commonwealth v. Wright, 32 A.3d 839 (Pa. Super. 2011) (unpublished

memorandum).         No petition for allowance of appeal was filed in the

Pennsylvania Supreme Court.         Therefore, Wright’s judgment of sentence




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became final on September 19, 2011,5 when the time to file a petition for

allowance of appeal expired. See Pa.R.A.P. 1113(a) (30-day period for filing

petition for allowance of appeal from entry of Superior Court order); 42

Pa.C.S. § 9545(3) (“For purposes of this subchapter, a judgment 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 at the expiration of time for seeking the review.”). Here, because Wright

filed his second PCRA petition on April 9, 2014, over two and one-half years

after his sentence became final, his petition is patently untimely.

       Nevertheless, Wright contends that he is entitled to PCRA relief based

upon the United States Supreme Court’s decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013), which held that any fact that triggers

application of a mandatory minimum sentence must be determined by the

fact-finder beyond a reasonable doubt.6 Id. at 2162–2163. Wright argues

his mandatory minimum sentencing implicates the legality of the sentence,

and because an illegal sentencing cannot be waived, his claim is subject to



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5
  Since the thirtieth day from August 19, 2011, fell on Sunday, September
18, 2011, Wright had until Monday, September 19, 2011 to file a petition for
allowance of appeal to the Pennsylvania Supreme Court. See 1 Pa.C.S. §
1908, supra.
6
  Alleyne was decided on June 17, 2013; Wright’s judgment of sentence
became final on September 19, 2011.



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review by the PCRA court and this Court. See Wright’s Brief at 22. We are

not persuaded by Wright’s argument.

      In Commonwealth v. Fahy, 737 A.2d 214 (Pa. Super. 1999), the

Pennsylvania Supreme Court held: “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.” Id. at 223. More recently, in

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this Court

specifically discussed the issue of the jurisdictional time limits of the PCRA

with respect to an Alleyne claim:

      We are aware that an issue pertaining to Alleyne goes to the
      legality of the sentence. See Commonwealth v. Newman, 99
      A.3d 86, 90 (Pa. Super. 2014) (en banc ) (stating, “a challenge
      to a sentence premised upon Alleyne likewise implicates the
      legality of the sentence and cannot be waived on appeal[ ]”). It
      is generally true that “this Court is endowed with the ability to
      consider an issue of illegality of sentence sua sponte.”
      Commonwealth v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.
      Super. 2014) (citation omitted). However, in order for this
      Court to review a legality of sentence claim, there must be
      a basis for our jurisdiction to engage in such review. See
      Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.
      Super. 2011) (stating, “[a] challenge to the legality of a
      sentence ... may be entertained as long as the reviewing court
      has jurisdiction[ ]”) (citation omitted). As this Court recently
      noted, “[t]hough 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, thus depriving the court of jurisdiction over the
      claim.”[Commonwealth v.] Seskey[, 86 A.3d 237, 242 (Pa.
      Super. 2014)].

Id. at 995 (emphasis added). Therefore, in this case, the PCRA court had

no jurisdiction to review the illegal sentencing claim raised by Wright unless



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an exception to the PCRA time-bar applied.7 No exception has been shown

to apply here.

       We agree with the PCRA court that the Alleyne decision cannot be

used to establish the timeliness exception pursuant to 42 Pa.C.S. §

9545(b)(1)(iii). Such argument was rejected in Miller, supra. The Miller

Court explained:

       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 Appellant’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. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
       Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
       citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
       L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
       Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
       purposes of subsection (iii), the language ‘has been held by that
       court to apply retroactively’ means the court announcing the rule
       must have also ruled on the retroactivity of the new
____________________________________________


7
  Wright filed this second PCRA petition on April 9, 2014, within 60 days of
this Court’s March 14, 2014, decision that affirmed denial of relief on his first
PCRA petition. [See Commonwealth v. Wright, 100 A.3d 308 (Pa. Super.
2014) (unpublished memorandum)]. Therefore, Wright met the requirement
of 42 Pa.C.S. § 9545(b)(2) (requiring a petitioner to present his claimed
exceptions within 60 days of the date the claim first could have been
presented.). See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)
(subsequent petition must be filed within 60 days of the date of the order
which finally resolves the previous PCRA petition, because this is the first
“date the claim could have been presented.”)




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       constitutional right, before the petitioner can assert retroactive
       application of the right in a PCRA petition[ ]”), appeal denied,
       597 Pa. 715, 951 A.2d 1163 (2008). Therefore, Appellant has
       failed to satisfy the new constitutional right exception to the
       time-bar.

Miller, 102 A.2d at 995. Therefore, based on Miller, it is clear that Wright’s

reliance   on    Alleyne     to    satisfy     the   timeliness   exception   of   section

9545(b)(1)(iii) is misplaced.

       Furthermore, we reject Wright’s claim that court rules, Pa.R.Crim.P.

576(a)(4),      904(f)(2),   and    Pa.R.A.P.        3304,   amount   to   governmental

interference with the presentation of his claim, thereby establishing the

exception set forth at 42 Pa.C.S. § 9545(b)(1)(i).                Wright maintains first

PCRA counsel neglected to raise prior counsel’s ineffectiveness for failing to

challenge the legality of his sentence, when Wright alerted first PCRA

counsel he had this potential claim.             See Wright’s Brief at 18–19. Wright

contends he could not raise the ineffectiveness of first PCRA counsel prior to

his second PCRA petition “because a court will not address pro se filings from

a person who is represented by counsel.” Wright’s Brief at 17. We cannot

accept Wright’s argument that procedural rules of court promulgated by the

Pennsylvania Supreme Court may constitute governmental interference.8


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8
   We recognize that a claim of PCRA counsel ineffectiveness cannot be
leveled for the first time on appeal; however, a petitioner in Wright’s
position may raise first PCRA counsel’s ineffectiveness in the PCRA court, as
follows:
(Footnote Continued Next Page)


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See Commonwealth v. Howard, 788 A.2d 351, 354 (Pa. 2002) (stating

“[w]e do not see how a proper court order can, in any fashion, be perceived

as governmental interference”).

      In addition, Wright cannot satisfy the “unknown facts” exception,

section 9545(b)(1)(ii), based upon his claim of first PCRA counsel’s

ineffectiveness.   The Pennsylvania Supreme Court has held that claims of

ineffectiveness do not operate as an independent exception to the one-year

jurisdictional time bar of the PCRA. See Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000) (holding claim that PCRA counsel’s

ineffectiveness was after-discovered fact will not establish jurisdiction under

section 9545(b)(1)(ii)); see also Commonwealth v. Breakiron, 781 A.2d

94, 97 (Pa. 2001).

      In his brief, Wright cites Commonwealth v. Bennett, 930 A.2d 1264

(Pa. 2007), in support of his argument that his claim satisfies section

9545(b)(1)(ii). See Wright’s Brief at 23–24. In Bennett, the Pennsylvania

                       _______________________
(Footnote Continued)

      While difficult, the filing of a subsequent timely PCRA petition is
      possible, and in situations where an exception pursuant to §
      9545(b)(1)(i-iii) can be established a second petition filed
      beyond the one year time bar may be pursued. Moreover, if an
      appellant remains adamant that the claims foregone by counsel
      provide the better chance for success, he can avoid the potential
      loss of those claims by timely exercising his desire to self-
      represent or retain private counsel prior to the appeal.

Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011). See also
Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014) (en banc).



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Supreme Court determined that counsel’s failure to file an appellate brief

and perfect the appeal, which resulted in this Court’s dismissal of the appeal,

constituted abandonment as it was “the functional equivalent of having no

counsel at all.”   Id. at 1273. Our Supreme Court further concluded that

counsel’s abandonment could serve as a newly discovered fact, as


      allowing such claims to go forward would not eviscerate the time
      requirements crafted by the Legislature [in the PCRA]. Rather,
      subsection (b)(1)(ii) is a limited extension of the one-year time
      requirement under circumstances when a petitioner has not had
      the review to which he was entitled due to a circumstance that
      was beyond his control.

Id. In so holding, the Court distinguished Bennett’s claim of counsel’s

abandonment from those claims of ineffectiveness that “narrowed the ambit

of appellate review,” and could not fall within the purview of section

9545(b)(1)(ii). Id. at 1273.

      In this case, first PCRA counsel did not abandon Wright on appeal. To

the contrary, first PCRA counsel filed an appeal and a brief on behalf of

Wright following the denial of PCRA relief on his first PCRA petition.

Therefore, Gamboa-Taylor, not Bennett, applies, and, consequently,

Wright’s claim regarding first PCRA counsel’s defective representation fails to

satisfy the “unknown facts” exception to the PCRA’s timeliness requirements.

      We also note that Alleyne, a judicial decision, is not a “fact” that

satisfies 42 Pa.C.S. § 9545(b)(1)(ii). “Our Courts have expressly rejected

the notion that judicial decisions can be considered newly-discovered facts

which would invoke the protections afforded by section 9545(b)(1)(ii).”

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Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).               See

also Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (judicial

decision does not qualify as an exception under section 9545(b)(1)(ii)).

       In sum, we conclude that the PCRA court did not err in denying PCRA

relief, as Wright’s present petition is untimely and he has failed to prove that

any statutory exception to the PCRA’s time bar applies so as to permit

review of the merits of his claims.9

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




____________________________________________


9
 In light of our disposition, we do not address the other issues raised by
Wright in this appeal.



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