J-S38039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
               v.                           :
                                            :
ALVIN E. GRANDBERRY, III,                   :
                                            :
                    Appellant               :           No. 2092 MDA 2014

          Appeal from the PCRA Order entered on November 3, 2014
              in the Court of Common Pleas of Dauphin County,
             Criminal Division, No(s): CP-22-CR-0000653-2012;
             CP-22-CR-0001270-2012; CP-22-CR-0001273-2012;
                           CP-22-CR-0004931-2011

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 30, 2015

      Alvin E. Grandberry, III, (“Grandberry”) appeals, pro se, from the

Order dismissing his first Petition for relief pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On July 13, 2012, Grandberry entered a negotiated guilty plea to a

variety   of    crimes.   Pursuant   to   the   negotiated   plea   bargain,   the

Commonwealth recommended a prison sentence of seven to fourteen years.

The trial court accepted the negotiated plea on the same date and imposed

the agreed-upon sentence. Grandberry did not file a direct appeal.

      On August 5, 2014, Grandberry filed a pro se PCRA Petition.              The

PCRA court appointed Grandberry counsel, who subsequently filed a Petition
J-S38039-15


to withdraw as counsel pursuant to Turner/Finley.1           The PCRA court

granted counsel’s Petition to withdraw, and dismissed Grandberry’s PCRA

Petition due to untimely filing. Grandberry filed a timely Notice of Appeal.

      On appeal, Grandberry raises the following questions for our review:

      I. Was the mandatory minimum sentence imposed illegal as the
      trial judge determined whether the evidence triggered the
      deadly weapon enhancement[,] as opposed to a finding beyond
      a reasonable doubt by a jury, thereby violating [Grandberry’s]
      Sixth Amendment right to a determination of beyond a
      reasonable doubt?

      II. Should the decision in Alleyne v. United States[, 133 S.
      Ct. 2151 (2013)] be applied retroactively pursuant to the
      “substantive rule” regarding retroactivity announced in Teague
      v. Lane, 489 U.S. 288 (1989)?

Brief for Appellant at 7.

      “On appeal from the denial of PCRA relief, our standard of review calls

for us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error.” Commonwealth v. Nero, 58 A.3d 802, 805

(Pa. Super. 2012).

      Under the PCRA, a defendant must file any PCRA petition within one

year of the date that the judgment becomes final.                42 Pa.C.S.A.

§ 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 review.” Id. § 9545(b)(3).

1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


                                  -2-
J-S38039-15


      Here, the trial court sentenced Grandberry on July 13, 2012, and

Grandberry did not file a direct appeal.      Thus, Grandberry’s judgment of

sentence became final on August 13, 2012. See 42 Pa.C.S.A. § 9545(b)(3);

see also Pa.R.A.P. 903(a). Grandberry had until August 13, 2013, to file a

timely PCRA petition.     Therefore, Grandberry’s August 5, 2014 Petition is

facially untimely under the PCRA.

      However, in the event that the petition is not filed within the one-year

time frame, the PCRA provides three timeliness exceptions where (1) the

failure to raise the claim was the result of government interference; (2) the

facts of the new claim were unknown to the petitioner and could not have

been discovered with due diligence; or (3) the right asserted is a

constitutional right recognized by the United States Supreme Court or the

Pennsylvania Supreme Court after the time period provided in the section

and has been held to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Any PCRA petition invoking one of these exceptions shall be filed within sixty

days of the date the claim could have been presented. Id. § 9545(b)(2).

      Here, Grandberry claims that the United States Supreme Court’s

recent   decision   in   Alleyne   invokes   the   exception   at   42   Pa.C.S.A.

§ 9545(b)(1)(iii), a newly recognized constitutional right. Brief for Appellant

at 12. In Alleyne, the Court held that any fact that increases the sentence

for a given crime must be submitted to the jury and found beyond a

reasonable doubt. Alleyne, 133 S. Ct. at 2155. The Court reasoned that a



                                    -3-
J-S38039-15


Sixth Amendment violation occurs where these sentence-determinative facts

are not submitted to a jury. Id. at 2156. Grandberry argues that the trial

court enhanced his sentence at sentencing in violation of Alleyne. Brief for

Appellant at 10-14.

      Grandberry’s    PCRA    Petition    invoking   the    exception   at   section

9545(b)(1)(iii) was untimely.       Alleyne was decided on June 17, 2013.

Grandberry filed the PCRA Petition in August 2014, well over sixty days after

the date the claim could have been presented.                  See 42 Pa.C.S.A.

§ 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super.   2007)   (stating    that   “[w]ith   regard   to    an   after-recognized

constitutional right, this Court has held that the sixty-day period begins to

run upon the date of the underlying judicial decision.”).

      Even if Grandberry had properly invoked the exception at section

9545(b)(1)(iii), the rule established in Alleyne does not apply retroactively.

See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014)

(stating that neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held that Alleyne applies retroactively where the

judgment of sentence has become final); see also id. (stating that while

Alleyne claims go to the legality of the sentence, courts cannot review a

legality claim where it does not have jurisdiction). Grandberry failed to meet

the requirements of the third timeliness exception.         Thus, the PCRA court

properly dismissed Grandberry’s PCRA Petition.



                                    -4-
J-S38039-15


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2015




                          -5-
