J-S22039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    Appellee              :
                                          :
                    v.                    :
                                          :
DONALD L. LAMEY, SR.,                     :
                                          :
                     Appellant            :    No. 1249 MDA 2015

                Appeal from the Order Entered June 29, 2015,
               in the Court of Common Pleas of Centre County,
            Criminal Division, at No(s): CP-14-CR-0000842-1994

BEFORE:    MUNDY, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED MARCH 30, 2016

      Donald L. Lamey, Sr. (Appellant) appeals from the order entered on

June 29, 2015, which denied his motion to correct illegal sentence.        We

affirm.

      The background underlying this matter can be summarized as follows.

            On January 17, 1995, a jury convicted Appellant … of one
      hundred and ninety-five separate criminal offenses, including
      sixty-two counts of involuntary deviate sexual intercourse, forty-
      four counts of statutory rape, forty counts of aggravated
      indecent assault, seven counts of corruption of minors, forty
      counts of indecent assault, one count of incest, and one count of
      endangering the welfare of children. The convictions stem from
      Appellant’s sexual contact with his adolescent daughter and her
      minor friends. On June 9, 1995, the trial court sentenced
      Appellant to an aggregate of thirty-three and one-half to sixty-
      seven years in prison.

Commonwealth v. Lamey, 850 A.2d 10 (Pa. Super. 2004) (unpublished

memorandum at 1-2) (footnotes omitted).       Appellant timely filed a direct



*Retired Senior Judge assigned to the Superior Court.
J-S22039-16


appeal, and his judgment of sentence was affirmed by this Court on August

27, 1996. Commonwealth v. Lamey, 685 A.2d 1044 (Pa. Super. 1996)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal to our Supreme Court.1

      On June 26, 2015, Appellant filed a document entitled “Motion to

Modify and Correct Illegal Sentence Nunc Pro Tunc.”           In that motion,

Appellant argued that his aggregate sentence is illegal pursuant to the

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

S.Ct. 2151 (2013), which rendered unconstitutional 42 Pa.C.S. § 9718.

      On June 29, 2015, the trial court denied the motion by concluding that

Appellant is not entitled to relief because “no court has determined that the

constitutional right as developed in Alleyne and its Pennsylvania progeny is

to be applied retroactively.” Trial Court Opinion, 9/11/2015, at 2. Appellant

timely filed a notice of appeal. The trial court did not order Appellant to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), but did issue an opinion pursuant to Pa.R.A.P. 1925(a). In his brief

to this Court, Appellant asks us to consider the questions that follow.




1
  Thereafter, Appellant timely filed a PCRA petition, which the PCRA court
denied, and this Court affirmed. Commonwealth v. Lamey, 850 A.2d 10
(Pa. Super. 2004) (unpublished memorandum). Appellant filed a petition for
allowance of appeal, which our Supreme Court denied on August 31, 2004.
Commonwealth v. Lamey, 858 A.2d 109 (Pa. 2004).




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         1. Whether [Appellant’s] sentence is an illegal sentence, in light
         of Alleyne, in the line of Apprendi.[2]

         2.    Whether [Appellant’s] illegal sentence is requiring [sic]
         relief/re-sentencing.

         3. Whether [Appellant’s] sentence is unconstitutional under the
         6th and 14th Amendments of the United States Constitution.

Appellant’s Brief at 1 (unnecessary capitalization omitted).

         We first point out that the lower court should have treated Appellant’s

motion as a petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. “It is well-settled that the PCRA is intended to be

the sole means of achieving post-conviction relief…. Issues that are

cognizable under the PCRA must be raised in a timely PCRA petition[.]”

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013).                A

claim challenging the legality of a sentence is cognizable under the PCRA.

See Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000).

Accordingly, we will review Appellant’s appeal as being from the denial of a

PCRA petition.

         We set forth our well-settled standard of review.      Our standard of

review of the denial of a PCRA petition is limited to examining whether the

court’s rulings are supported by the evidence of record and free of legal

error.    Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super.

2010).

2
    Apprendi v. New Jersey, 530 U.S. 466 (2000).



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      Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).         For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).

“The PCRA’s time restrictions are jurisdictional in nature.”    Chester, 895

A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor

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

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

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

      This Court affirmed Appellant’s judgment of sentence on August 27,

1996. Appellant had 30 days to petition our Supreme Court for allowance of

appeal.     Pa.R.A.P. 1113(a).   He did not do so.   Thus, for purposes of the

PCRA, Appellant’s judgment became final on September 26, 1996.             He

therefore had until September 26, 1997, in order to file timely a PCRA

petition.

      Because Appellant untimely filed his PCRA petition in June of 2015, he

had the burden of pleading and offering to prove one of the following

exceptions:

      (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.

42 Pa.C.S. § 9545(b)(1).     Moreover, he was required to show that the

petition was “filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

     Even if Appellant had invoked one of the aforementioned exceptions in

his motion, namely subsection 9545(b)(1)(iii), he would not be entitled to

relief. This Court has held that “Alleyne will be applied to cases pending on

direct appeal when Alleyne was issued,” but does not apply retroactively

to cases on collateral review. Commonwealth v. Riggle, 119 A.3d 1058,

1064 (Pa. Super. 2015) (citing Commonwealth v. Newman, 99 A.3d 86

(Pa. Super. 2014)) (emphasis added); see also Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014) (noting that neither the Pennsylvania

Supreme Court nor the United States Supreme Court has declared that

Alleyne is to be applied retroactively to cases in which the judgment of

sentence has become final). Thus, reliance on Alleyne cannot overcome the

jurisdictional time limitations of the PCRA. Because the lower court lacked




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jurisdiction over Appellant’s motion, we conclude that the lower court did not

err by denying it.3

      Order affirmed.4

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/30/2016




3
   Based on the foregoing, we need not address Appellant’s substantive
issues on appeal.
4
  We recognize that our reasoning differs somewhat from the lower court;
however, “[i]t is well-settled … that we may affirm the PCRA court’s decision
on any basis.” Commonwealth v. Williams, 977 A.2d 1174, 1177 n.8 (Pa.
Super. 2009).


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