J-S23007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

MICHAEL LEONARD RAZNY,

                          Appellant                   No. 3186 EDA 2016


             Appeal from the PCRA Order of September 23, 2016
                In the Court of Common Pleas of Pike County
             Criminal Division at No(s): CP-52-CR-0000110-2009


BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 21, 2017

      Appellant, Michael Leonard Razny, appeals from the order entered on

September 23, 2016, dismissing as untimely his petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         We

affirm.

      The PCRA court summarized the facts and procedural history of this

case as follows:

          On June 11, 2009, [Appellant] entered a guilty plea to one
          (1) count of robbery under 18 Pa.C.S.A. § 3701(a)(1)(ii)
          and one count of firearms not to be carried without a license
          under 18 Pa.C.S.A. § 6106(a).         The plea agreement
          included a minimum mandatory sentence of five (5) years[’]
          incarceration[, pursuant to 42 Pa.C.S.A. § 9712 (sentences
          for offenses committed with firearms),] due to the factual
          allegation that [Appellant] pointed a modified Mossberg
          shotgun at the victim.

          On August 27, 2009, [Appellant] was sentenced [] to a total
          aggregate sentence of incarceration in a state correctional
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        facility for a period of not less than ten and one half (10.5)
        years nor more than twenty-one (21) years. [Appellant]
        filed a motion for modification of sentence on September 8,
        2009, and [the trial] court denied [Appellant’s] motion on
        September 11, 2009.

        On March 3, 2016, [Appellant] filed a pro se PCRA petition
        and argued that his mandatory minimum sentence was
        unconstitutional based on the Supreme Court of
        Pennsylvania’s decision in Commonwealth v. Hopkins,
        [117 A.3d 247 (Pa. 2015), filed on June 15, 2015]. [The
        PCRA court] appointed [] PCRA counsel on March 4, 2016.
        An evidentiary hearing was held on August 5, 2016. [PCRA]
        counsel filed a motion to withdraw as counsel and no-merit
        letter on September 21, 2016. On September 23, 2016,
        [the PCRA court] entered an order which notified
        [Appellant] of the intention to dismiss his PCRA [petition,
        pursuant to Pa.R.A.P. 907]. The order also stated that
        [Appellant] was entitled to respond to the proposed
        dismissal within twenty (20) days of the order.

        [Appellant] did not file a response to [the PCRA court’s]
        order of September 23, 2016. However, on October 12,
        2016, [] Appellant filed a premature notice of appeal as to
        the order dated September 23, 2016. On October 14,
        2016, [the PCRA court] entered an order dismissing
        [Appellant’s petition] for [PCRA] relief and granting [PCRA
        counsel’s] motion to withdraw as counsel. On that same
        day, [the PCRA court] ordered [] Appellant [to] file a
        concise statement of [errors] complained of on appeal
        [pursuant to Pa.R.A.P. 1925(b)] within twenty-one (21)
        days from the date of the order.

PCRA Opinion, 11/23/2016, at 1-2 (unpaginated) (superfluous capitalization

omitted).

     The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on

November 23, 2016. As of the time of the filing of that opinion, Appellant

had not filed a Rule 1925(b) concise statement.    Thus, the PCRA court was




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“of the opinion that no issue [had] been preserved for appellate review.” Id.

at 2 (unpaginated).

      We review the denial of PCRA relief to determine whether the findings

of the PCRA court are supported by the record and free of legal error.

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citation

omitted).

      On appeal, Appellant does not address the PCRA court’s determination

that his failure to file a Rule 1925(b) statement resulted in waiver of

appellate review of the dismissal of his PCRA petition. Our Supreme Court

has stated that our jurisprudence is clear and well-settled, and firmly

establishes that:

        Rule 1925(b) sets out a simple bright-line rule, which
        obligates an appellant to file and serve a Rule 1925(b)
        statement, when so ordered; any issues not raised in a Rule
        1925(b) statement will be deemed waived; the courts lack
        the authority to countenance deviations from the Rule's
        terms; the Rule's provisions are not subject to ad hoc
        exceptions or selective enforcement; appellants and their
        counsel are responsible for complying with the Rule's
        requirements; Rule 1925 violations may be raised by the
        appellate court sua sponte, and the Rule applies
        notwithstanding an appellee's request not to enforce it[.]
        […]In order to preserve their claims for appellate review,
        [a]ppellants must comply whenever the trial court orders
        them to file a [s]tatement of [errors] [c]omplained of on
        [a]ppeal pursuant to Pa.R.A.P. 1925. Any issues not raised
        in a Pa.R.A.P. 1925(b) statement will be deemed waived.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). “[A] pro se litigant

must comply with the procedural rules set forth in the Pennsylvania Rules of

[Appellate Procedure].” Commonwealth v. Freeland, 106 A.3d 768, 776


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(Pa. Super. 2014) (citation omitted).    Based upon all of the foregoing, we

conclude that Appellant waived all issues for appellate review.

      Had Appellant properly preserved his claims, however, we further

conclude that the PCRA court was without jurisdiction to entertain

Appellant’s untimely PCRA petition. We have previously determined:

        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. Generally,
        a PCRA petition must be filed within one year of the date
        the judgment of sentence becomes final unless the
        petitioner meets his burden to plead and prove one of the
        exceptions enumerated in 42 Pa.C.S.A. § 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. However, the PCRA limits the reach of the exceptions
        by providing that a petition invoking any of the exceptions
        must be filed within 60 days of the date the claim first could
        have been presented.

Commonwealth v. Walters, 135 A.3d 589, 591–592 (Pa. Super. 2016)

(internal citations and quotations omitted).

      Appellant’s current PCRA petition was filed over a year after his

judgment of sentence became final. A judgment of sentence becomes final

at the conclusion of direct review or when the time for seeking direct review

expires. See 42 Pa.C.S.A. § 9545(b)(3). When a timely post-sentence

motion is filed, an appellant has 30 days from the entry of the order deciding

the motion to file a notice of appeal. See Pa.R.Crim.P. 720(A)(2)(a). Thus,

Appellant had 30 days from September 11, 2009 to file a direct appeal with


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this Court. Appellant did not. Thus, upon expiration of the 30-day appeal

period, Appellant’s judgment of sentence became final on Monday, October

12, 2009. See 1 Pa.C.S.A § 1908 (“Whenever the last day of [a statutory]

period shall fall on [] Sunday [] such day shall be omitted from the

computation.”). Therefore, Appellant’s PCRA petition filed on March 3, 2016,

over six years later, was patently untimely.

       Pursuant to 42 Pa.C.S.A. § 9545(b)(1)(iii), Appellant claims that his

mandatory minimum sentence is illegal because 42 Pa.C.S.A. § 9712 is

unconstitutional based on the Supreme Court of Pennsylvania’s decision in

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)1 and the United

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

2151 (2013). Appellant’s Brief at 9, 11. However, in Commonwealth v.

Washington, 142 A.3d 810 (Pa. 2016), our Supreme Court, in specifically

examining Section 9712, held “that Alleyne does not apply retroactively to

cases pending on collateral review[.]”           Washington, 142 A.3d at 820.

Thus, Appellant cannot rely on Alleyne or its progeny as a newly recognized

constitutional right in the PCRA context. As such, we discern no error of law
____________________________________________


1
     Hopkins was a direct appeal challenge to the constitutionality and
severability of 18 Pa.C.S.A. § 6317(a) (imposing a mandatory minimum for
drug-free school zones). The procedural posture and mandatory minimum
sentencing statute are completely different from the instant case. We
declared Section 9712 unconstitutional in Commonwealth v. Valentine,
101 A.3d 801 (Pa. Super. 2014), after Appellant’s judgment of sentence
became final. Thus, in order to be entitled to relief, Appellant must establish
he is entitled to retroactive application of the law.



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by the PCRA court for dismissing Appellant’s PCRA petition for lack of

jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




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