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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
RICHARD A. CANNON,                          :
                                            :
                          Appellant         :
                                            :     No. 1316 WDA 2015

                     Appeal from the Order August 12, 2015
        in the Court of Common Pleas of Mercer County Criminal Division
                        at No(s): CP-43-CR-0001003-2004

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED MARCH 1, 2016

        Appellant, Richard A. Cannon, appeals from the order of the Mercer

County Court of Common Pleas dismissing his second Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, petition as meritless.      Appellant

challenges his 2005 mandatory minimum sentences, imposed under 18

Pa.C.S. § 7508(a) (“Drug trafficking sentencing and penalties”), and asserts

those sentences are now unconstitutional in light of Alleyne v. United

States, 133 S. Ct 2151 (2013), and subsequent decisions by this Court.

See, e.g., Commonwealth v. Fennell, 105 A.3d 13, 18-20 (Pa. Super.

2014), appeal denied, 121 A.3d 494 (Pa. 2015). We affirm.




*
    Former Justice specially assigned to the Superior Court.
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      This Court previously summarized the relevant procedural history of

this appeal.

            On August 18, 2005, Appellant was convicted by a jury
         of seven counts of possession with intent to deliver
         controlled substances, 35 P.S. § 780-113(a)(30), seven
         counts of possession of controlled substances, 35 P.S. §
         780-113(a)(16), and six counts of use of a communication
         facility, 18 Pa.C.S.[ ] § 7512(a).          Appellant was
         subsequently sentenced to an aggregate term of twelve
         years to twenty-five years imprisonment[, which included
         several mandatory minimum sentences of five years’
         imprisonment based on 18 Pa.C.S. § 7508(a)(3)]. Trial
         counsel, William G. McConnell, Jr., Esquire, filed post-
         sentence motions on Appellant’s behalf, which included a
         claim that Appellant’s sentence should be reduced because
         the Commonwealth engaged in unlawful sentence
         entrapment. Appellant’s post-sentence motion was denied
         without hearing on October 26, 2005.

             On November 7, 2005, Appellant attempted to file a
         timely appeal of his judgment of sentence. The appeal
         was never filed or processed. As a result, Appellant filed a
         PCRA petition, and his direct appeal rights were reinstated
         nunc pro tunc. Appointed counsel, Randall T. Hetrick,
         Esquire, filed a notice of appeal and concise statement of
         errors complained of on appeal pursuant to Pa.R.[A].P.
         1925(b) for Appellant. On February 6, 2008, this Court
         denied the appeal, affirming Appellant’s judgment of
         sentence. [Commonwealth v. Cannon, 1975 WDA 2006
         (Pa. Super. Feb. 6, 2008)]. Appellant filed a petition for
         allowance of appeal with the Supreme Court, which was
         denied on October 14, 2008. [Commonwealth v.
         Cannon, 145 WAL 2008 (Pa. Oct. 14, 2008)].

             On December 30, 2009, PCRA counsel, Scott Coffey,
         Esquire, filed a PCRA petition on behalf of Appellant.
         Attorney Coffey then filed an amended PCRA petition on
         January 27, 2010, in which he raised a claim that
         “trial/sentencing/post sentencing counsel was [sic]
         ineffective for failing to raise a claim that the
         Commonwealth manipulated [Appellant’s] sentence by
         waiting until he had committed 7 drug transactions over a


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          four month period, resulting in an increase of the
          mandatory minimum sentences requested from 5 years to
          32 years (the actual mandatory minimum imposed was 12
          years).”

Commonwealth v. Cannon, 713 WDA 2010 (Pa. Super. Jan. 25, 2011)

(unpublished memorandum at 1-3).           On April 8, 2010, The PCRA Court

denied Appellant’s first PCRA petition following an evidentiary hearing. Id.

at 3.      This Court affirmed, and the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal.          Id. at 8; see also

Commonwealth v. Cannon, 598 WAL 2011 (Pa. Mar. 7, 2012)

        On July 27, 2015, Appellant filed the pro se “petition/motion to vacate

judgment of sentence—motion to set aside the mandatory minimum,” which

gives rise to this appeal.1 On August 12, 2015, the PCRA court entered a

memorandum opinion and order denying relief. The court concluded it was

“bound by stare decisis to follow” Commonwealth v. Riggle, 119 A.3d

1059 (Pa. Super. 2015), and find no relief was due because Alleyne and its

Pennsylvania progeny did not apply retroactively.        See Order, 8/12/15;

PCRA Ct. Op., 8/12/15, at 4 (unpaginated). Appellant timely filed a notice of

appeal and a court-ordered Pa.R.A.P. 1925(b) statement.

        Appellant, in his pro se brief, presents the following question for

review:    “Is   Appellant’s   mandatory    minimum    sentence    illegal   and

1
 Although Appellant’s filing was received and docketed by the court on June
29, 2015, the record contains an envelope bearing a postmark dated June
27th, which we adopt as the date of filing. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).



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unconstitutional   since   18   Pa.C.S.[   ]   §   7508   has   been   declared

unconstitutional by recent Superior Court decisions?” Appellant’s Brief at 5.

Appellant cites to Alleyne, refers to this Court’s decisions invalidating

mandatory minimum sentences, and asserts his sentences are similarly

subject to correction. See id. at 10-11. We are constrained to disagree.

     It is well settled that the PCRA

        provides for an action by which persons convicted of
        crimes they did not commit and persons serving illegal
        sentences may obtain collateral relief. The action
        established in this subchapter shall be the sole means of
        obtaining collateral relief and encompasses all other
        common law and statutory remedies for the same purpose
        that exist when this subchapter takes effect, including
        habeas corpus and coram nobis.

42 Pa.C.S. § 9542; see also 42 Pa.C.S. § 6503(b) (“Where a person is

restrained by virtue of sentence after conviction for a criminal offense, the

writ of habeas corpus shall not be available if a remedy may be had by post-

conviction hearing proceedings authorized by law.”).       Pennsylvania courts

must “evaluate any post-conviction petition under the Post Conviction Relief

Act (PCRA), regardless of the title of the document filed.” Williams v. Erie

Cnty. Dist. Attorney’s Office, 848 A.2d 967, 969 (Pa. Super. 2004)

(citation omitted); accord Commonwealth v. Rivera, 802 A.3d 629, 633

(Pa. Super. 2002).

     Appellant’s present claim for relief from the application of a mandatory

minimum sentence is cognizable under the PCRA. Cf. Commonwealth v.

Ford, 947 A.2d 1251, 1252-53 (Pa. Super. 2008); Commonwealth v.


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Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Therefore, his instant pro se

“petition/motion” must be regarded as a PCRA petition, his second.        See

Williams, 848 A.2d at 969; Rivera, 802 A.3d at 633.

      Consequently, our standard of review is as follows. “[W]e examine

whether the PCRA court’s determination is supported by the record and free

of legal error.”   Miller, 102 A.3d at 992 (citations and quotation marks

omitted).   “[T]his Court may affirm the decision of the PCRA Court if it is

correct on any basis.” Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.

Super. 2000); see also Commonwealth v. Callahan, 101 A.3d 118, 121

(Pa. Super. 2014) (noting this Court may raise question of timeliness under

PCRA sua sponte).

            Pennsylvania law makes clear that when “a PCRA
         petition is untimely, neither this Court nor the trial court
         has jurisdiction over the petition.” . . . [“A]n untimely
         petition may be received when the petition alleges, and the
         petitioner proves, that any of the three limited exceptions
         to the time for filing the petition, set forth at 42 Pa.C.S.A.
         § 9545(b)(1)(i), (ii), and (iii), are met.”         The PCRA
         provides, in relevant part, as follows.

                                  *    *    *

            (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


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                  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.

                (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.

Miller, 102 A.3d at 993 (quoting 42 Pa.C.S. § 9545(b)(1)(i)-(iii), (2)).

      Section   9545(b)(1)(ii)   codifies   the   “previously   unknown    facts”

exception. To invoke that provision,

         the petitioner must establish that: 1) the facts upon which
         the claim was predicated were unknown and 2) could not
         have been ascertained by the exercise of due diligence. If
         the petitioner alleges and proves these two components,
         then the PCRA court has jurisdiction over the claim under
         this subsection.

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citation

omitted) (emphasis added).       However, judicial decisions do not constitute

facts for the purposes of Section 9545(b)(1)(ii).     See id.   Thus, the mere

discovery of recent case law will not provide a basis for asserting a PCRA

timeliness exception. See id.



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      Section 9545(b)(1)(iii) establishes a timeliness exception for newly

recognized constitutional rights. To assert the exception, “a petitioner must

prove that there is a ‘new’ constitutional right and that the right ‘has

been held’ by that court to apply retroactively.”         Miller, 102 A.3d at

994 (citation omitted) (emphasis added).

      In Miller, this Court concluded Alleyne does not establish a timeliness

exception under Section 9545(b)(1)(iii).       Id. at 995.     We reasoned,

“[N]either our Supreme Court, nor the United States Supreme Court has

held that Alleyne is to be applied retroactively to cases in which the

judgment of sentence had become final.” Id.

      Instantly, Appellant’s judgment of sentence became final on January

12, 2009,2 and he had until January 12, 2010, to file a facially timely PCRA

petition. See 42 Pa.C.S. § 9545(b)(1), (3). Therefore, he was required to

plead and prove a timeliness exception under 42 Pa.C.S. § 9545(b) to

establish jurisdiction over his July 27, 2015 motion/petition.3 This he did not

do.   Accordingly, this Court must affirm the PCRA court’s dismissal of


2
  As noted above, this Court affirmed the judgment of sentence on February
6, 2008, and the Pennsylvania Supreme Court denied allowance of appeal on
October 14, 2008. Appellant did not petition the United States Supreme
Court for writ of certiorari in his direct appeal. We emphasize Appellant’s
conviction became final before the United States Supreme Court decided
Alleyne on June 17, 2013. See Commonwealth v. Ruiz, ___ A.3d ___,
___, 2015 WL 9632089 (Pa. Super. Dec. 30, 2015).
3
   Moreover, Appellant’s petition was not filed by August 16, 2013, the
sixtieth day after Alleyne was decided. See 42 Pa.C.S. § 9545(b)(2).



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Appellant’s second PCRA petition.     See Callahan, 101 A.3d at 121;

Hutchins, 760 A.2d at 55.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: March 1, 2016




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