J-S43001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BERNARD RANSOME,

                        Appellant                  No. 3538 EDA 2014


            Appeal from the PCRA Order of November 14, 2014
             In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-0003279-1997


BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 11, 2015

      Appellant, Bernard Ransome, appeals from an order entered on

November 14, 2014 in the Criminal Division of the Court of Common Pleas of

Lehigh County that dismissed as untimely his fifth petition filed pursuant to

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

affirm.

      The historical and factual history of this matter is as follows.    On

September 18, 1997, Appellant and others entered a residence with

firearms, held the residents captive, and inflicted bodily injury on the

residents by pistol whipping, punching, and kicking them and, ultimately,

burning them with a hot steam iron and pouring cleaning fluid on their

wounds. Appellant and his accomplices stole more than $7,000.00 from the

residence, along with cocaine having a street value of approximately
J-S43001-15



$20,000.00.      On July 27, 1999, Appellant pled guilty to three counts of

robbery, criminal conspiracy, and unlawful restraint.      On September 27,

1999, the court sentenced defendant to an aggregate term of 19¾ to 70

years’ imprisonment.        Thereafter, Appellant moved to withdraw his guilty

plea and to reconsider his sentence. On November 23, 1999, after an oral

colloquy, the court permitted Appellant to withdraw his motion to withdraw

his guilty plea. On February 22, 2000, the court granted Appellant’s motion

to reconsider and vacated its September 27, 1999 sentence.         Following a

hearing, the court, on July 17, 2000, re-sentenced Appellant to an aggregate

term of 19¾ to 70 years’ incarceration.1 Appellant again filed a motion to

modify his sentence, which the court denied on August 4, 2000. Appellant

did not appeal his judgment of sentence.

       Between July 25, 2001 and April 20, 2010, Appellant filed four

petitions for collateral relief before the trial court. In each case, the court

dismissed Appellant’s petitions and no relief was awarded on appeal.

       On October 10, 2014, Appellant filed the instant PCRA petition.

Pursuant to Pa.R.Crim.P. 907, the PCRA court issued notice on October 24,

2014 of its intent to dismiss Appellant’s claim.      On November 14, 2014,

Appellant filed a response to the court’s Rule 907 notice. That same day,
____________________________________________


1
  The trial court based Appellant’s sentence, at least in part, on 42 Pa.C.S.A.
§ 9712.1, which imposes a mandatory minimum sentence based on a
judicial finding that the defendant possessed a firearm within close proximity
to drugs.



                                           -2-
J-S43001-15



the PCRA court dismissed Appellant’s petition as untimely.          This timely

appeal followed.2

       Appellant’s brief raises the following question for our review:

       Did the [PCRA] court err in denying [Appellant’s] PCRA petition?

Appellant’s Brief at 3.

       Appellant argues that he properly invoked an exception to the PCRA’s

one-year time-bar by filing his petition within 60 days of the decision of this

Court in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en

banc). Appellant’s Brief at 5 (“[Appellant’s] current appeal is the result of

the latest ruling in [Newman]”); PCRA Petition, 10/10/14 (attaching this

Court’s en banc opinion in Newman); Appellant’s Response to Rule 907

Notice, 11/14/14 (citing Newman as basis for invoking exception found at

42 Pa.C.S.A. § 9545(b)(1)(iii)). In Newman, this Court held that § 9712.1,

which enhances a defendant's minimum sentence based upon a finding by

the trial court that the defendant possessed a firearm in close proximity to

drugs, violated a defendant’s right to a jury trial, as interpreted in the United

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.

2151 (U.S. 2013).        We conclude that the PCRA court correctly dismissed

Appellant’s petition as untimely.

____________________________________________


2
  Both Appellant and the PCRA court have complied with the procedures set
forth in Pa.R.A.P. 1925.



                                           -3-
J-S43001-15


      We “review an order granting or denying PCRA relief to determine

whether the PCRA court’s decision is supported by evidence of record and

whether its decision is free from legal error.”   Commonwealth v. Liebel,

825 A.2d 630, 632 (Pa. 2003).

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.   This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).           Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to determine at the outset the timeliness of a petition before

we consider the underlying claims.    Commonwealth v. Yarris, 731 A.2d

581, 586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.            See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the

                                     -4-
J-S43001-15


         PCRA timing mandate, th[e Court could] consider the issue
         sua sponte, as it is a threshold question implicating our
         subject matter jurisdiction and ability to grant the requested
         relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).                   The

PCRA’s timeliness rules apply even to claims, such as Appellant’s, that

implicate the legality of a sentence. See Commonwealth v. Jackson, 30

A.3d 516, 521-522 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa.

2012); Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007)

(where petitioner files untimely PCRA petition raising legality of sentence

claim, jurisdictional limits of PCRA render claim incapable of review); Fahy,

supra at 223 (claims challenging legality of sentence are subject to review

within PCRA, but must first satisfy PCRA's time limits).

       Since Appellant did not file a direct appeal in the case at bar, his

judgment of sentence became final on September 5, 2000, when the 30-day

period for seeking review expired.3            See Pa.R.A.P. 903(a); 42 Pa.C.S.A.

§ 9545(b)(3). Appellant then had until Wednesday, September 5, 2001 to

file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b). As Appellant did not file

the instant petition until October 10, 2014, his petition is manifestly

untimely and the burden fell upon him to plead and prove that one of the
____________________________________________


3
  The trial court denied Appellant’s motion for reconsideration on Friday,
August 4, 2000. Using that date, Appellant’s 30-day direct appeal period
expired on Sunday, September 3, 2000. In addition, Monday, September 4,
2000 was Labor Day, a legal holiday.         Hence, under our rules of
construction, Appellant’s judgment of sentence became final on Tuesday,
September 5, 2000. 1 Pa.C.S.A. § 1908 (computation of time).



                                           -5-
J-S43001-15



enumerated exceptions to the one-year time-bar applied to his case. See

42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,

1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the

one-year time-bar, the PCRA demands that the petitioner properly plead all

required elements of the relied-upon exception).

     Here, Appellant claims to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

        (1) Any petition under this subchapter, 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 that:

           (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.

                                     ...

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

42 Pa.C.S.A. § 9545(b).

     In construing § 9545(b)(1)(iii), our Supreme Court has explained:

        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

                                    -6-
J-S43001-15


         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.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted).

       Appellant’s reliance on this Court’s decision in Newman to invoke the

timeliness exception found at § 9545(b)(1)(iii) is unavailing. This Court has

previously held that, “the language of section 9545(b)(1)(iii) does not

contemplate that a decision of this Court [] may provide the basis for an

exception to the time-bar.”         Commonwealth v. Brandon, 51 A.3d 231,

235 (Pa. Super. 2012).4          Because Appellant did not properly invoke the

timeliness exception found at § 9545(b)(1)(iii), his petition for collateral

relief was untimely and the PCRA court did not err in dismissing his claims.

Accordingly, we affirm.
____________________________________________


4
  More recently, this Court held that while Alleyne, the United States
Supreme Court decision cited in Newman as the basis for invalidating
§ 9712.1, constitutes a new constitutional rule, that case is not entitled to
retroactive application in the collateral review setting. Commonwealth v.
Riggle, 2015 WL 4094427, *5 - *7 (Pa. Super. 2015); see also
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (neither
Pennsylvania Supreme Court nor United States Supreme Court has declared
that Alleyne should be applied retroactively to cases in which the judgment
of sentence has become final). Hence, even if Appellant cited Alleyne as
the basis for invoking the newly recognized constitutional right exception to
the PCRA’s time-bar (which he did not), he would not be entitled to relief.



                                           -7-
J-S43001-15


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




                          -8-
