J. S03011/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                    v.                     :
                                           :
IVORY PERKINS,                             :         No. 727 EDA 2015
                                           :
                         Appellant         :


                Appeal from the PCRA Order, February 27, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0402561-2002


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 15, 2016

        Ivory Perkins appeals pro se from the order filed in the Court of

Common Pleas of Philadelphia County which dismissed, without a hearing,

his third petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.          Because we agree with the PCRA court that

appellant’s facially untimely petition failed to establish a statutory exception

to the one-year jurisdictional time limit for filing a petition under the PCRA,

we affirm.

        The PCRA court set forth the following factual and procedural history:

                    On August 9, 2002, a jury convicted the
              [appellant] of burglary,[1] criminal trespass[2] and
              related offenses. On October 9, 2002, [appellant]

1
    18 Pa.C.S.A. § 3502(a).
2
    18 Pa.C.S.A. § 3503(a)(1)(i).
J. S03011/16


          received [an] aggregate sentence of not less than
          sixteen or more than thirty five years’ incarceration
          to be followed by four years’ probation.         The
          Superior Court affirmed the judgment of sentence on
          June 14, 2004. Commonwealth v. Perkins, 265
          EDA 2003. On March 14, 2007, the Pennsylvania
          Supreme Court granted the defendant’s petition for
          allowance of appeal, vacated the criminal trespass
          sentence because it merged with the burglary and
          remanded the case for resentencing. On August 2,
          2007, the lower court resentenced [appellant] to an
          aggregate sentence of not less than fifteen or more
          than thirty years’ imprisonment.

               [Appellant] filed his first PCRA petition on
          August 28, 2007. The lower court denied relief on
          January 21, 2009 and the Superior Court affirmed on
          January 26, 2010.

                [Appellant] filed his second PCRA petition on
          May 24, 2011. After review of the record and the
          applicable law, the lower court issued a notice of
          intent to dismiss without a hearing pursuant to
          [Pa.]R.Crim.P. 907 on December 12, 2011 and
          dismissed the petition as untimely filed by order
          dated January 17, 2012. [Appellant] appealed and
          the Superior Court dismissed his appeal for failure to
          comply with [Pa.R.A.P.] 3517 on June 5, 2012.

                 On June 10, 2014, [appellant] filed his third
          PCRA petition claiming that his 2002 burglary
          sentence, imposed under the Second Strike Act,
          42 Pa.C.S.A. § 9714 ([s]entences for second and
          subsequent offenses) was illegal because when he
          received his first burglary conviction in 1994 as the
          result of a guilty plea, the offense was not
          considered a crime of violence.[Footnote 1] His third
          petition was dismissed without a hearing on
          February 27, 2015. This appeal followed.




                                  -2-
J. S03011/16



           [Footnote 1] 42 Pa.C.S.A. § 9714 (a) Mandatory
           sentence.--

           (1)    Any person who is convicted in any court
                  of this Commonwealth of a crime of
                  violence shall, if at the time of the
                  commission of the current offense the
                  person had previously been convicted of
                  a crime of violence, be sentenced to a
                  minimum sentence of at least ten years
                  of total confinement, notwithstanding
                  any other provision of this title or other
                  statute to the contrary.

PCRA court opinion, 4/8/15 at 1-2.

     Appellant raises the following issues for our review:

           [1.]   Did the PCRA Court have jurisdiction to
                  consider [appellant’s] third PCRA petition after
                  his judgement of sentence became final
                  beyond the one year period where he invoked
                  “any” exceptions to the PCRA’s time bar?

           [2.]   Did the PCRA Court’s denial found [sic] to be
                  free of legal error and supported by the
                  record?

           [3.]   Did the PCRA Court focus on and enforce the
                  applicable sixty day period for exception to the
                  one year period?

           [4.]   Did the PCRA Court have jurisdiction to review
                  the merits of an untimely PCRA petition
                  referenced      interference  by   government
                  officials, facts that were unknown, exercise of
                  due diligence and righte [sic] asserted are
                  constitutional right [sic] recognized by the
                  Supreme Court of the United States and the
                  Supreme Court of Pennsylvania after the final
                  judgement?




                                     -3-
J. S03011/16


              [5.]   Did the PCRA Court interfere with [appellant’s]
                     pro-se development of claims of reference to
                     the statutory provisions for time bar
                     exception?

              [6.]   Did the PCRA Court deny hearing where there
                     were actual disputed factual and legal matters?

              [7.]   Did the PCRA Court infringe upon [appellant’s]
                     constitutionality of General Rules and of
                     Statue [sic]?

Appellant’s brief at 3-4.

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.    42 Pa.C.S.A. § 9545(b)(1).      “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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound.     Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

         Here, the trial court resentenced appellant on August 2, 2007.

Appellant failed to file a direct appeal to this court, and consequently,



                                       -4-
J. S03011/16


appellant’s judgment of sentence became final 30 days after imposition of

sentence and the time for filing a direct appeal expired. See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759,

763 (Pa.Super. 2013). Therefore, appellant’s petition, filed June 10, 2014,

is facially untimely. As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).

       Those three narrow exceptions to the one-year time bar are:       when

the government has interfered with the appellant’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right   retroactive.    42   Pa.C.S.A.   §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The appellant bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a

valid exception to the PCRA time bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

       Here, appellant contends that his October 9, 2002 burglary sentence is

illegal because it was imposed under the second strike act, 42 Pa.C.S.A.

§ 9714, which requires a mandatory minimum sentence of 10 years’

incarceration where a defendant had previously been convicted of a crime of



                                       -5-
J. S03011/16


violence. To that end, appellant complains that when he pled guilty to his

first burglary in 1994, burglary was not considered a crime of violence under

the second strike act.      As such, appellant claims that because burglary

became a crime of violence as a result of two amendments to the second

strike act in 1995 and 2000 that increased penalties for second and

subsequent convictions of crimes of violence, his 2002 sentence under the

second strike act is unlawful. (Appellant’s brief in passim.)

      Challenges to the      legality of the sentence are never waived.

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super 2005).                     This

means that a court may entertain a challenge to the legality of the sentence

so long as the court has jurisdiction to hear the claim. In the PCRA context,

jurisdiction is tied to the filing of a timely PCRA petition. Id.

      In an attempt to circumvent the jurisdictional bar, appellant first

claims that his petition falls under the exceptions at 42 Pa.C.S.A.

§ 9545(b)(1)(ii) and (iii), alleging newly discovered evidence, and a newly

recognized constitutional right to relief, pursuant to the United States

Supreme Court’s decision in Alleyne v. United States,                  U.S.

(2013), 133 S.Ct. 2151 (2013). We disagree.

      In   analyzing    a   claim   of    newly   discovered    evidence   under

Section 9545(b)(1)(ii), our supreme court in Commonwealth v. Bennett,

930 A.2d 1264, 1271 (Pa. 2007), made clear that the exception set forth in

Subsection (b)(1)(ii) does not require any merits analysis of the underlying



                                         -6-
J. S03011/16


claim. Rather, the exception merely requires that the facts upon which the

claim is predicated must not have been known to appellant and could not

have been ascertained by due diligence. Id. (citation omitted). Therefore,

the plain language of Subsection (b)(1)(ii) is not so narrow as to limit itself

to only claims involving after-discovered evidence.    Id. at 1272.    Rather,

Subsection (b)(1)(ii) has two components, which appellant must allege and

prove:   (1) that the facts upon which the claim was predicated were

unknown and (2) that those facts could not have been ascertained by the

exercise of due diligence. Id. If the petitioner alleges and proves these two

components, then the PCRA court has jurisdiction over the claim under this

subsection. Id. (citation omitted).

      Here, appellant claims that the newly discovered evidence is the

United States Supreme Court’s decision in Alleyne, supra, which is

derivatively applicable to him and implicates the legality of his sentences.

We do not find appellant’s argument persuasive for three reasons.

      First, our courts have expressly rejected the notion that judicial

decisions can be considered newly discovered facts which would invoke

§ 9545 (b)(1)(ii) protections. See Commonwealth v. Watts, 23 A.3d 980,

986 (Pa. 2011) (holding that a judicial opinion does not qualify as a

previously unknown “fact” capable of triggering the timeliness exception set

forth in Section 9545(b)(1)(ii) of the PCRA; “section 9545(b)(1)(ii) applies

only if the petitioner has uncovered facts that could not have been



                                      -7-
J. S03011/16


ascertained through due diligence, and judicial determinations are not

facts”); Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012)

(same).

      Second, even if appellant’s claim had met the underlying requirements

of § 9545(b)(1)(ii), he still would not be entitled to any relief, as he did not

satisfy the 60-day requirement set forth in § 9545(b)(2). Appellant did not

file his PCRA petition alleging such exception within 60 days of the Alleyne

decision. To fulfill the 60-day requirement, appellant was required to file his

petition within 60 days of the Court’s decision.     Brandon, supra, at 235

(finding appellant’s claim, alleging recently filed judicial decision as newly

discovered fact, failed for, inter alia, not complying with § 9545(b)(2),”the

sixty-day period begins to run upon the date of the underlying judicial

decision[,]” not the date appellant became aware of the decision).          The

United States Supreme Court’s decision in Alleyne was filed on June 17,

2013. Appellant filed his petition 358 days later on June 10, 2014. Thus,

the petition was untimely on this basis as well.

      Third, even if even appellant’s claim met the underlying requirements

of § 9545(b)(1)(ii) and satisfied the 60-day requirement set forth in

Section 9545(b)(2), Alleyne is not applicable.        In Alleyne, the United

States Supreme Court held that “[a]ny fact that, by law, increases the

penalty for a crime is an ‘element’ that must be submitted to the jury and

found beyond a reasonable doubt.”          Alleyne, 133 S.Ct. at 2155.       In



                                     -8-
J. S03011/16


Apprendi v. New Jersey, 530 U.S. 466 (2000), 120 S.Ct. 2348 (2000),

however, the United States Supreme Court held that a defendant’s

Fourteenth Amendment right to due process and Sixth Amendment right to

trial by jury require that any fact, other than the fact of a prior conviction,

that increases the penalty for a crime beyond the prescribed statutory

maximum, be submitted to a jury and proven beyond a reasonable doubt.

Id. at 2362-2363; see also Commonwealth v. Belak, 825 A.2d 1252,

1256 (Pa. 2003).

        Moreover, the legislative history of the second strike act, 42 Pa.C.S.A.

§ 9714, shows that, contrary to appellant’s claim, burglary was already

included in the definition of a crime of violence in 2000. Additionally, in its

2000 amendments, the legislature provided that Title 42 (Judiciary and

Judicial Procedure) of the Pennsylvania Consolidated Statute applied to

proceedings initiated on or after its effective day,3 which necessarily included

appellant’s 2002 sentence proceeding.          Therefore, appellant’s claim lacks

merit.

        Appellant also fails to satisfy the requirements necessary for invoking

the     newly   recognized    constitutional    right   exception,   pursuant   to

Section 9545(b)(1)(iii).     Although appellant claims that Alleyne created a

newly recognized constitutional right because it rendered the second strike

act unconstitutional as applied to him, Alleyne, as discussed above, is not


3
    1999 Pa.S.B. 380, effective 7/10/00.


                                       -9-
J. S03011/16


applicable here. Therefore, that holding does not create a newly recognized

constitutional right that can serve as the basis for relief for appellant.

      Appellant finally claims that the “government interference” exception,

42 Pa.C.S.A. § 9545(b)(1)(i), applies because (1) the PCRA court dismissed

his petition and (2) the state correctional institute where he is incarcerated

does not have current PCRA petition forms. (Appellant’s brief in passim.)

Pennsylvania courts have repeatedly held that the PCRA contemplates only

challenges to the propriety of a conviction or a sentence. Commonwealth

v. Heredia, 97 A.3d 392, 394 (Pa.Super. 2014) (citation omitted). Because

appellant’s complaint of government interference fails to challenge the

propriety of his conviction or his sentence, this claim lacks merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2016




                                      - 10 -
