J-S77042-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                      1   IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                          Appellee

                     v.

DAVID LEE GROVER, JR.,

                          Appellant                          No. 784 MDA 2016


                   Appeal from the PCRA Order April 28, 2016
              in the Court of Common Pleas of Huntingdon County
               Criminal Division at No.: CP- 31 -CR- 0000054 -2010

BEFORE:     PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED OCTOBER 24, 2016

        Appellant, David Lee Grover, Jr., appeals pro se from the order

dismissing his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541 -9546, as untimely. We affirm.

        The relevant facts and procedural history of this case are as follows.

On January 12, 2011, a       jury convicted Appellant of involuntary deviate
sexual intercourse (IDSI), statutory sexual assault, aggravated indecent

assault, corruption of minors, and indecent assault.' Appellant's conviction

stems from his sexual relationship with       a   then -fifteen -year -old girl, when he

was thirty -nine years old, over     a   four -month period. On May 19, 2011, the


*   Retired Senior Judge assigned to the Superior Court.

' 18 Pa.C.S.A. §§ 3123(a)(7), 3122.1, 3125(a)(8), 6301(a)(1), and
3126(a)(8), respectively.
J-S77042-16



trial court sentenced Appellant to an aggregate term of incarceration of not

less than ten        nor more than twenty        years.2     This Court affirmed the

judgment of sentence on April 9, 2012. (See Commonwealth v. Grover,
48 A.3d 471 (Pa. Super. 2012) (unpublished memorandum)). Appellant did

not file   a   petition for allowance of appeal with our Supreme Court.

       On October 22, 2012, Appellant filed a pro se               first   PCRA    petition.

Appointed counsel subsequently filed an amended petition, which the PCRA

court denied on January 21, 2015, following          a   hearing. A panel of this Court

affirmed       the   PCRA    court's   order   on   November      24,      2015.        (See

Commonwealth v. Grover, 134 A.3d 503                 (Pa. Super. 2015) (unpublished

memorandum)).

       Appellant filed the instant pro se petition on March 14, 2016.                     On

March 23, 2016, the PCRA court issued notice of its intent to dismiss the

petition without      a   hearing as untimely.      See Pa.R.CrimP. 907(1).             After

consideration of Appellant's pro se response, the PCRA court entered its

order dismissing the PCRA petition on April 28, 2016.                   Appellant timely

appealed.        Pursuant to the PCRA court's order, Appellant filed               a   timely




2 The record reflects that the court sentenced Appellant to the mandatory
minimum term of incarceration of ten years on the IDSI count. See 42
Pa.C.S.A. § 9718(a)(1) (providing mandatory minimum term of incarceration
for IDSI conviction); (see also Sentencing Order, 5/19/11, at unnumbered
page 2).


                                          -2
J-S77042-16



concise statement of errors complained of on appeal on June 14, 2016.3

See Pa.R.A.P. 1925(b).        The court entered an opinion on July 7, 2016,

stating that it lacked jurisdiction to consider the merits of the PCRA petition

because it was untimely and Appellant failed to plead or prove any exception

to the PCRA's timeliness requirement.            See Pa.R.A.P. 1925(a); (see also

PCRA Court Opinion,       7/07/16, at   3 -4).    The court also noted Appellant's

citation to Alleyne v. United States, 133 S.Ct. 2151            (2013),4 and   stated

that this decision does not provide him      a   basis for relief. (See PCRA Ct. Op.,

at 3).

         On appeal, Appellant raises the following questions     for our review:

         I. Whether the trial court erred in not correcting an illegal
         sentence that was rendered in violation of the Appellant's
         statutory limit for sentencing?

         II. Whether the trial court lacked subject matter jurisdiction from
         the face of the indictment when rendering a sentence outside of
         the indictment?




3 We deem Appellant's concise statement filed on the day it was dated rather
than on the day it was docketed (June 17, 2016), pursuant to the prisoner
mailbox rule. See Commonwealth v. Brandon, 51 A.3d 231, 234 n.5 (Pa.
Super. 2012).

4  In Alleyne, the United States Supreme Court held that under the Sixth
Amendment to the United States Constitution, a jury must find beyond a
reasonable doubt any facts that increase a mandatory minimum sentence.
See Alleyne, supra, at 2158. In Commonwealth v. Wolfe, 140 A.3d 651
(Pa. 2016), the Pennsylvania Supreme Court held "that Section 9718 is
irremediably unconstitutional on its face, non -severable, and void[,]" in light
of Alleyne. Wolfe, supra at 663.


                                        -3
J-S77042-16


         III. Whether the trial court erred in entering a civil judgement
         without a civil trial and /or without putting the Appellant on
         notice of civil proceedings?
(Appellant's Brief, at iii) (unnecessary capitalization                  omitted).5

    We       begin by discussing the timeliness of Appellant's instant                        PCRA

petition.

         .   .  Crucial to the determination of any PCRA appeal is the
                 .


         timeliness of the underlying petition.      Thus, we must first
         determine whether the instant PCRA petition was timely filed.
         The timeliness requirement for PCRA petitions is mandatory and
         jurisdictional in nature, and the court may not ignore it in order
         to reach the merits of the petition. The question of whether a
         petition is timely raises a question of law. Where the petitioner
         raises questions of law, our standard of review is de novo and
         our scope of review plenary.

                     A PCRA petition is   timely if it   is   "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, 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.A. § 9545(b)(3)...                     .




Commonwealth v. Brown,                     141 A.3d 491, 499 -500 (Pa. Super. 2016)

(case citations and some quotation marks omitted).

         In this case, Appellant's judgment of sentence became final on May 9,

2012, upon expiration of the time to file                     a   petition for allowance of appeal

with the Pennsylvania Supreme Court. See Pa.R.A.P. 903(a); 42 Pa.C.S.A.                          §

9545(b)(3). Because Appellant filed the instant petition on March 14, 2016,


5 The Commonwealth filed a letter with this Court stating that it is not filing
a brief because it is unsure what issue Appellant wants us to address. (See
Commonwealth's Letter, 8/31/16).


                                                 -4
J-S77042-16



it is untimely on its face, and the PCRA court lacked jurisdiction to review it

unless he pleaded and proved one of the statutory exceptions to the time -

bar. See 42 Pa.C.S.A.       §   9545(b)(1)(i)- (iii).
      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

             (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.

Id.
      Any petition invoking an exception must "be filed within [sixty] days of

the date the claim could have been presented."          Id. at   §   9545(b)(2). "If the
[PCRA] petition is determined to be untimely, and no exception has been

pled and proven, the petition must be dismissed without               a   hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition."   Commonwealth v. Jackson, 30 A.3d 516, 519                        (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).                       In

addition, "it   is   the petitioner's burden to allege and prove that one of the




                                            -5
J-S77042-16



timeliness exceptions applies."            Commonwealth v. Robinson, 139 A.3d
178, 186 (Pa. 2016) (citation omitted).

       Here, Appellant fails to acknowledge the untimeliness of his petition or

specifically argue          the   applicability     of   any    exception          to   the    PCRA's

jurisdictional time -bar. (See Appellant's Brief, at            1   -4). Therefore, Appellant

has not met his burden of proving his untimely petition fits within one of the

three limited exceptions to the time -bar. See Robinson, supra at 186.

       Moreover, to the extent Appellant attempts to invoke the newly

recognized and retroactively applied constitutional right exception at 42

Pa.C.S.A.   §   9545(b)(1)(iii) by reference to Alleyne, supra, (see Appellant's
brief, at 2 -3), it   is   well -settled that Alleyne does not invalidate               a   mandatory

minimum sentence when the claim               is raised in an        untimely PCRA petition.

See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

Further, "our Supreme Court recently filed an opinion in Commonwealth v.

Washington, 142 A.3d 810, 820                     (Pa.   2016) wherein it addressed the

retroactive effect of Alleyne and held 'that Alleyne does not apply

retroactively to cases pending on collateral review.                 .   .   .   " Commonwealth

v.   Whitehawk, 2016           WL 4473779, at        *4 (Pa. Super. filed Aug. 24, 2016)
(internal citation formatting provided).

       In   sum,      we     conclude that the           PCRA   court properly dismissed

Appellant's PCRA petition as untimely with no exception to the time -bar

pleaded or proven. See            Brown, supra at 499 -500. Accordingly, we affirm
the order of the PCRA court.

                                             -6
J- S77042 -16



      Order affirmed.



Judgment Entered.




J:seph    Seletyn,
         D.
Prothonotary


Date: 10/24/2016




                        -7
