J-S74022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS LIPANI                              :
                                               :
                       Appellant               :   No. 1620 EDA 2019

               Appeal from the PCRA Order Entered May 1, 2019
      In the Court of Common Pleas of Carbon County Criminal Division at
                        No(s): CP-13-CR-0000261-1996


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 14, 2020

        Thomas Lipani (Appellant) appeals pro se from the order dismissing his

fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        A jury convicted Appellant of a multitude of sex crimes on October 7,

1998, and the trial court sentenced him to 19 to 38 years in prison on April

22, 1999. Appellant appealed to both the Pennsylvania Superior Court and

Pennsylvania Supreme Court, see Commonwealth v. Lipani, 2851 EDA

1999 (Pa. Super. May 15, 2000) (unpublished memorandum), appeal

denied, 407 MDA 2000 (Nov. 14, 2000), but did not seek further review;

thus, his judgment of sentence became final on February 12, 2001.          It is

undisputed that the underlying PCRA petition is untimely.

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      On appeal, Appellant raises three issues:

      1. Whether the PCRA Court erred when it held the claims in the
         December 1, 2016 Petition are previously litigated when the
         denial of the PCRA Court was never appealed to the
         Pennsylvania Superior Court.

      2. Whether the PCRA Court erred when it denied Appellant’s PCRA
         petition because the Pennsylvania Supreme Court has never
         specifically held that Commonwealth v. Resto, 179 A.3d 18
         (Pa. 2018) was retroactive, when Tyler v. Cain, 533 U.S. 652
         (2001) holds multiple holdings can render a new rule
         retroactive if the holdings in those cases necessarily dictate
         retroactively.

      3. Whether     Resto    held    that   Sec.   9718(a)(1)     was
         unconstitutional.

Appellant’s Brief at 2.

      In reviewing the denial of a PCRA petition, our review is limited to

examining whether the PCRA court’s findings are supported by the record and

free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.

2011). We view the findings of the PCRA court and the evidence of record in

the light most favorable to the prevailing party.   Id.   “The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court; however, we apply a de novo standard of review to the PCRA court’s

legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).

      Further, Pennsylvania law is unequivocal that no court has jurisdiction

to hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837


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A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within

one year of the date on which the petitioner’s judgment of sentence became

final, unless one of the three statutory exceptions applies:

       (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.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).1 If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

____________________________________________


1 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018, and now provides that a PCRA petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
apply only to claims arising one year before the effective date . . . or
thereafter.” Id.



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do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

       It is undisputed that Appellant filed the underlying PCRA petition on

January 28, 2019 and it is untimely.2 “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.’”     Monaco, 996 A.2d at 1079

(quoting 42 Pa.C.S.A. § 9545(b)(3)). We are without jurisdiction to decide

Appellant’s appeal unless he pled and proved one of the three timeliness

exceptions of Section 9545(b)(1). See Derrickson, 923 A.2d at 468.

       Appellant argues that his claim qualifies under the newly-recognized

constitutional right exception to the time bar set forth in 42 Pa.C.S.A. §

9545(b)(1)(iii). See generally Appellant’s PCRA Petition, 1/28/19, at 4-13;

Appellant’s Brief at 3-14. The essence of Appellant’s argument is that his

sentence is illegal under Alleyne v. United States, 570 U.S. 99, 133 S.Ct.

2151 (2013).      As the PCRA court noted, Appellant made this argument —

unsuccessfully — in a prior PCRA petition. See PCRA Court Opinion, 8/2/19,



____________________________________________


2  The PCRA court explained that Appellant “filed five separate petitions for
collateral relief pursuant to the [PCRA]: on November 2, 2001, March 27,
2009, February 4, 2010, December 1, 2016, and the instant pro se petition
filed on January 28, 2019. All four of [Appellant’s] previously filed PCRA
petitions were denied.” PCRA Court Opinion, 8/2/19, at 3.

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at 4.     However, in the underlying petition, Appellant makes the same

argument based on the Pennsylvania Supreme Court’s more recent decision

in Commonwealth v. Resto, 179 A.3d 18 (Pa. 2018). Appellant’s reliance

on Resto is unavailing because that case is not at all applicable. For example,

Resto involves the Commonwealth’s successful appeal from this Court’s

decision regarding the defendant’s direct appeal from his judgment of

sentence; that is, Resto was not favorable to the defendant, and does not

involve post-conviction collateral review. In addition, the Supreme Court in

Resto expressly held that the mandatory minimum sentencing provision for

conviction of rape of a child did not violate the Sixth Amendment’s prohibition

against judicial factfinding. Id.

        Instantly, Appellant is seeking post-conviction collateral relief beyond

the one-year time bar. While Alleyne applies retroactively to cases on direct

appeal when Alleyne was issued, Alleyne does not apply retroactively to

cases on PCRA review, and does not invalidate a mandatory minimum

sentence when presented in an untimely PCRA petition. See Commonwealth

v. Washington, 142 A.3d 810, 820 (Pa. 2016); see also Commonwealth

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


____________________________________________


3 In Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018), the Supreme
Court held that a petitioner serving an illegal sentence under Alleyne was not
barred from relief when the relief was sought in a timely petition for post-
conviction relief and the judgment of sentence was not final when the decision



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       Consistent with the foregoing, we agree with the PCRA court’s

conclusion that Appellant’s “judgment of sentence, which became final on

February 12, 2001, more than twelve years before Alleyne was decided, was

neither illegal when imposed or now.” PCRA Court Opinion, 8/2/19, at 11.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/20




____________________________________________


in Alleyne was announced; however, those circumstances are not present in
this case.



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