J-S74043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDRE GREEN                                :
                                               :
                       Appellant               :   No. 1994 EDA 2019

            Appeal from the PCRA Order Entered November 29, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1007511-2005


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

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 17, 2020

        Appellant Andre Green appeals the order entered by the Court of

Common Pleas of Philadelphia County denying Appellant’s petition pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46 as untimely

filed. We affirm.

        In September 2006, Appellant was convicted at a bench trial of third-

degree murder, aggravated assault, recklessly endangering another person,

and possessing an instrument of crime. On November 28, 2006, the trial court

imposed an aggregate sentence of 25 to 50 years’ imprisonment. On February

15, 2008, this Court affirmed the judgment of sentence. Appellant did not file

a petition for allowance of appeal with the Supreme Court.




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      On July 31, 2008, Appellant filed his first PCRA petition. On February

20, 2013, appointed counsel sought to withdraw and filed a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). After the PCRA

court permitted counsel to withdraw, it issued notice of its intent to dismiss

the petition without a hearing pursuant to Pa.R.A.P. 907. On April 5, 2013,

the PCRA court denied Appellant’s petition. On February 25, 2015, this Court

affirmed the PCRA court’s order and on July 21, 2015, the Supreme Court

denied Appellant’s petition for allowance of appeal.

      On July 8, 2016, Appellant filed his second PCRA petition, asserting that

he was entitled to collateral relief based on newly discovered evidence

consisting of affidavits from two alleged witnesses to the relevant crimes.

After deeming the PCRA petition to be untimely, the PCRA court issued a Rule

907 notice to dismiss. On May 23, 2018, the PCRA court denied Appellant’s

second petition. While Appellant filed an appeal that was docketed at 2585

EDA 2018, this Court subsequently dismissed the appeal on April 3, 2019 as

Appellant failed to file a brief. Order, 4/3/19, at 1.

      On September 12, 2018, Appellant filed the instant PCRA petition, his

third, claiming that his sentence was illegal under Alleyne v. U.S., 570 U.S.

99 (2013). On October 17, 2018, the PCRA court filed a Rule 907 notice and

on November 29, 2018, dismissed the petition.

      On March 1, 2019, Appellant filed another PCRA petition, seeking the

reinstatement of his appellate rights nunc pro tunc as he had not received the

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PCRA court’s November 29, 2018 order dismissing his petition. On March 26,

2019, the PCRA court granted Appellant’s request.

       On May 10, 2019, Appellant filed yet another PCRA petition, in which he

claimed that he never received the PCRA court’s March 26, 2019 order

reinstating his appellate rights.       On June 26, 2019, the PCRA court again

granted Appellant the right to file a notice of appeal nunc pro tunc from the

PCRA court’s November 27, 2018 order denying his third PCRA petition.1

       As an initial matter, we must determine whether Appellant’s PCRA

petition was timely filed. It is well-established that “the PCRA's timeliness

requirements are jurisdictional in nature and must be strictly construed;

courts may not address the merits of the issues raised in a petition if it is not

timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super.

2016) (citations omitted). Generally, a PCRA petition “including a second or

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

sentence becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).



____________________________________________


1 In its July 25, 2019 opinion issued pursuant to Pa.R.A.P. 1925(b), the PCRA
court analyzes why Appellant’s second PCRA petition, filed on July 8, 2016,
was time-barred. However, as noted above, Appellant’s appeal of the
dismissal of his second PCRA petition was dismissed due to Appellant’s failure
to file a brief. In the instant appeal, we must analyze the PCRA court’s
dismissal of his third PCRA petition, filed on September 12, 2018, in which
Appellant challenges the legality of his sentence.

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      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of the three exceptions

enumerated in Sections 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s

inability to raise a claim as a result of governmental interference; (2) the

discovery of previously unknown facts or evidence that would have supported

a claim; or (3) a newly-recognized constitutional right that has been held to

apply retroactively by the Supreme Court of the United States or the Supreme

Court of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      As noted above, the trial court sentenced Appellant on November 28,

2006, this Court affirmed the judgment of sentence on February 15, 2008.

Appellant did not seek further review with the Pennsylvania Supreme Court.

As a result, Appellant’s judgment of sentence became final on March 17, 2008,

after the expiration of the thirty-day period in which he was allowed to file a

petition for allowance of appeal.    See Pa.R.A.P. 1113.      As such, Appellant

needed to file his PCRA petition by March 17, 2009. As Appellant filed the

instant petition on September 12, 2018, this petition is facially untimely.

      Appellant argues that his petition was timely filed as he alleges that

challenges to the legality of sentence can never be waived. Appellant’s Brief,

at 10. However, Appellant fails to recognize that this Court must first have

jurisdiction over his petition to review his challenge to the legality of sentence.

It is well-established that “a legality of sentencing issue must be raised in a

timely filed PCRA Petition over which we have jurisdiction.” Commonwealth

v. Olson, 179 A.3d 1134, 1137 (Pa.Super. 2018) (citing 42 Pa.C.S. §

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9545(b); Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223

(1999) (stating that “[a]lthough legality 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”)).

      Moreover, Appellant cannot invoke the timeliness exception under

Section 9545(b)(1)(iii) by alleging his sentencing claim is based on a newly

recognized constitutional right expressed in Alleyne. In Alleyne, the United

States Supreme Court held that “[a]ny fact that, by law, increases the penalty

for a crime is an ‘element’ that must be submitted to the jury and found

beyond a reasonable doubt.” Alleyne, 570 U.S. at 103, 133 S. Ct. at 2155.

      However, our Supreme Court held that Alleyne does not apply

retroactively to collateral attacks upon mandatory minimum sentences

advanced in PCRA proceedings. Commonwealth v. Washington, 636 Pa.

301, 316, 142 A.3d 810, 820 (2016). We also emphasize that this Court has

also rejected the argument that “that a mandatory sentencing statute

rendered illegal by Alleyne is void ab initio thereby rendering any sentence

imposed thereunder invalid.” Commonwealth v. Ciccone, 152 A.3d 1004,

1007–1008 (Pa.Super. 2016) (en banc).

      As noted above, Appellant’s direct appeal concluded when his sentence

became final in 2008. As our courts have held that Alleyne does not apply

retroactively to cases on collateral relief, Appellant is not entitled to relief.

Accordingly, as Appellant failed to plead and prove any of the timeliness




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exceptions provided in Section 9545, the PCRA court correctly dismissed

Appellant’s untimely petition, which it had no jurisdiction to review.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/20




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