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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
KEVIN LYLE REIS,                           :
                                           :
                         Appellant         :     No. 1293 EDA 2016

                  Appeal from the PCRA Order March 7, 2016
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000712-2010
                                          CP-39-CR-0000713-2010

BEFORE: DUBOW, SOLANO, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 24, 2017

        Appellant, Kevin Lyle Reis, appeals from the Order entered on March 7,

2016, in the Court of Common Pleas of Lehigh County dismissing as

untimely his second Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm on the

basis that Appellant’s PCRA Petition is untimely and this Court, thus, lacks

jurisdiction to review the Petition. 1



*
    Retired Senior Judge Assigned to the Superior Court.
1
  On May 4, 2016, this Court issued a Rule to Show Cause Order directing
Appellant to explain why the “appeal should not be quashed as having been
taken from a purported order of April 2, 2016, which is not entered upon the
appropriate docket of the lower court.” Rule to Show Cause Order, filed
5/4/16, at 1. Appellant responded that he “incorrectly stated the date of the
Final Order . . . as the same date of filing of the Notice of Appeal as a
typographical error.” Response to Rule to Show Cause, 5/23/16, at 1. This
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        Appellant   challenges   the   legality   of   the   sentence   imposed   in

connection with his convictions arising from his sexually abusing his 17-

year-old daughter on a weekly basis over the course of eight years, and

Appellant’s admission in a post-arrest interview that he kept multiple

firearms in his residence although he was a convicted felon.            On May 24,

2010, Appellant entered a guilty plea to one count each of Involuntary

Deviate Sexual Intercourse and Persons Not to Possess Firearms. 2                 On

December 21, 2010, the trial court sentenced Appellant to an aggregate

term of 10 to 20 years’ incarceration, and classified Appellant as a Sexually

Violent Predator.3

        Appellant filed a timely Notice of Appeal, but discontinued his direct

appeal on March 17, 2011.         On March 14, 2011, Appellant filed a Post-

Sentence Motion nunc pro tunc, which the trial court denied. Appellant filed

another Notice of Appeal on May 10, 2011. This Court dismissed Appellant’s

appeal, concluding that Appellant’s second Notice of Appeal was untimely.




Court issued an Order indicating the issue would be decided by this panel.
After considering Appellant’s response, we decline to quash the appeal.
2
    18 Pa.C.S. § 3123(a)(7) and 18 Pa.C.S. § 6105(a)(1), respectively.
3
  As this Court previously stated in our consideration of his direct appeal,
Appellant is not serving a sentence pursuant to any mandatory minimum
sentence provisions as part of the negotiated terms of his guilty plea. See
Commonwealth v. Reis, No. 1284 EDA 2011 (Pa. Super. filed December
29, 2011) (unpublished memorandum).




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Commonwealth v. Reis, No. 1284 EDA 2011 (Pa. Super. filed December

29, 2011) (unpublished memorandum).

      On August 14, 2013, the trial court granted Appellant’s first PCRA

Petition and permitted Appellant to file a Motion to Reconsider his sentence

nunc pro tunc within 10 days. Appellant filed a Motion to Reconsider nunc

pro tunc, which the trial court denied.

      On August 17, 2015, Appellant filed the instant PCRA Petition, his

second, claiming his sentence is illegal pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013).       After appointing counsel and providing

Notice to Appellant pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed

Appellant’s Petition as untimely on March 7, 2016.4

      Appellant filed a pro se Notice of Appeal on April 12, 2016.          Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents three issues for our review:

      I. Did the [PCRA] Court err in denying the instant [PCRA]
      Petition without a hearing when the “new rule” of law created by
      the United States Supreme Court in their plurality decision in
      Alleyne v. United States, 133 S.Ct. 2151 (2013) is a
      “substantive rule,” that by “constitutional requirement” must be
      [applied] retroactively in the instant case?

      II. Did the [PCRA] Court err in denying the [PCRA] Petition
      without a hearing when [Appellant] filed the instant [PCRA]
      Petition timely by filing within sixty (60) days of learning of the
      Supreme Court of Pennsylvania’s decision in Commonwealth v.
      Hopkins, 117 A.3d 247 ([Pa.] 2015)?

4
 The docket indicates that the clerk mailed Appellant a copy of the Order on
March 8, 2016.



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      III. Did the [PCRA] Court err in denying the [PCRA] Petition
      without a hearing when [Appellant] contends that through the
      Court’s inherent power, the [PCRA] Court always retains
      jurisdiction to correct his patently unconstitutional, and therefore
      illegal sentence?

Appellant’s Brief at 4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 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 at the expiration of time for seeking the review.”            42 Pa.C.S. §


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9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).

      Here, Appellant’s Judgment of Sentence became final on March 17,

2011, upon voluntarily discontinuing his first timely direct appeal to this

Court. See 42 Pa.C.S. § 9545(b)(3); Commonwealth v. McKeever, 947

A.2d 782, 785 (Pa. Super. 2008). In order to be timely, Appellant needed to

submit his PCRA Petition by March 17, 2012. Id. Appellant filed this PCRA

Petition on August 17, 2015, well after the one-year deadline.      The PCRA

court properly concluded that Appellant’s Petition is facially untimely. PCRA

Court Opinion, dated 6/14/16, at 2.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

      (b) Time for filing petition.

      (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:

            (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;




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            (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.

      (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. § 9545(b)(1)-(2).     See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).

      Here, in relying on Alleyne and Hopkins, supra, Appellant attempts

to invoke the timeliness exception under Section 9545(b)(1)(iii) to challenge

the legality of his sentence, averring that the court applied the mandatory

minimums provided in 42 Pa.C.S. §§ 9712 and 9718. As noted above, the

trial court did not, in fact, sentence Appellant to a mandatory minimum.

Accordingly, Alleyne and Hopkins have no relevance to the legality of

Appellant’s sentence.

      Moreover, even if Alleyne were applicable, this Court would have no

jurisdiction to review the claim. Although a legality of sentence claim cannot

be waived, it must be raised in a timely PCRA Petition. Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007); 42 Pa.C.S. § 9545(b)(2);

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality



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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”).

      The United States Supreme Court decided Alleyne on June 17, 2013.

In order to invoke the “constitutional right” exception under 42 Pa.C.S. §

9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days

of June 17, 2013.5 See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super. 2007) (stating that the 60-day period begins to run upon the date of

the underlying judicial decision).     Appellant filed this PCRA Petition on

August 17, 2015, well after 60 days of the Alleyne decision.

      Moreover, our Supreme Court has recently reiterated that Alleyne

does not apply retroactively on post-conviction collateral review.         See

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).

      Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely. See

PCRA Court Opinion at 1-3. We, thus, affirm the denial of PCRA relief.

      Order affirmed.


5
  This Court applied Alleyne in Hopkins, supra, on June 15, 2015.
However, this Court recently reiterated that “the Hopkins decision did not
announce a ‘new rule,’ [for purposes of 42 Pa.C.S. § 9545(b)(1)(iii)] but
rather simply assessed the validity of Section 6317 under Alleyne and
concluded that particular mandatory minimum sentencing statute was
unconstitutional.” Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa.
Super. 2016). Accordingly, Appellant’s reliance on Hopkins to calculate the
60-day period is misplaced.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




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