J-S48009-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

VAUGHN E. JAMES

                        Appellant                   No. 1012 WDA 2015


                 Appeal from the PCRA Order May 18, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000990-2011
                          CP-02-CR-0004395-2011
                          CP-02-CR-0015955-2008


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                           FILED AUGUST 19, 2016

      Vaughn E. James appeals from the May 18, 2015 order dismissing his

second PCRA petition. We affirm.

      This appeal encompasses three underlying criminal cases. At criminal

action 15955 of 2008, on March 15, 2011, Appellant tendered a negotiated

guilty plea. In exchange for a two to six year term, Appellant pled guilty to

one count each of possession of a controlled substance with intent to deliver

(“PWID), obstruction of justice, possession of marijuana, and resisting arrest

and two counts of possession of a controlled substance. On July 18, 2011,

at case number 990 of 2011, which was initiated by the Office of the

Attorney General of Pennsylvania, Appellant entered a negotiated guilty plea
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to two counts of corrupt organizations, thirteen counts of delivery of a

controlled substance (including cocaine, heroin, and marijuana), eight counts

of PWID, and one count each of conspiracy, prohibited sale or transfer of a

firearm, carrying an unlicensed firearm, and receiving stolen property. The

negotiated sentence in that case was eleven to twenty-two years of

incarceration followed by a probationary term of a maximum of three

months. There was also a five-year mandatory term of imprisonment that

was to be imposed in that action, but it had to run concurrently to the

above-described sentence.

      That same day, July 18, 2011, at action number 4395 of 2011,

Appellant pled guilty to two counts of PWID (cocaine) in return for imposition

of a mandatory minimum term and withdrawal of two other offenses. The

sentence at this matter was to be imposed concurrently with that at 990 of

2011. Appellant accepted the mandatory minimum sentences to protect his

girlfriend, his co-defendant, from a jail term.

      On July 18, 2011, Appellant was sentenced in all three cases in

accordance with the above-negotiated agreement with the exception that his

maximum sentence in the 2008 case was reduced as it was set at four

rather than six years.    In addition, the court granted the Commonwealth

restitution for the amount that it expended to purchase drugs pursuant to

controlled buys, which amounted to $14,440 in the 2011 cases and

$12,864.96 in the 2008 action.

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      Appellant did not file a direct appeal.        On March 2, 2012, Appellant

filed a timely pro se PCRA petition at all three docket numbers. Counsel was

appointed and filed a petition to withdraw pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc).         Counsel was allowed to withdraw and

PCRA relief was denied. Appellant filed a pro se notice of appeal and raised

numerous issues on appeal, including a claim that the restitution award was

improper. We agreed with that position on the basis that the imposition of

restitution violated the terms of the plea agreement. Upon remand, the trial

court struck all restitution.

      On April 14, 2015, Appellant filed his second petition seeking post-

conviction relief by arguing that his sentence was unconstitutional as it

included    application    of   mandatory     minimum     sentences     that    were

unconstitutional under Alleyne v. United States, 133 S.Ct. 2151 (2013).

In Alleyne, the United States Supreme Court held that any fact, other than

the existence of a prior conviction, that invokes application of a mandatory

minimum sentence must be submitted to a jury and proven beyond a

reasonable doubt.         Various mandatory minimum sentencing provisions,

including   the   one     applied   herein,   have    been   declared    void   and

unconstitutional under Alleyne, but the cases were direct appeals from

imposition of a judgment of sentence.

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      On April 22, 2015, the PCRA court herein issued notice of its intent to

dismiss the petition without a hearing, and, on May 19, 2015, it denied PCRA

relief. This pro se appeal followed. Appellant raises these positions for our

review:

      1. Is Appellant's sentence illegal and unconstitutional pursuant to
      recent decisions declaring 18 Pa.C.S.A. §7508 unconstitutional
      [under Alleyne, supra]?

      2. Since Appellant's sentence is unconstitutional is Appellant
      entitled to resentencing in that his sentence is illegal?

Appellant’s brief at 4.

      We first outline our standard of review:

          Under the applicable standard of review, we must determine
      whether the ruling of the PCRA court is supported by the record
      and is free of legal error. Commonwealth v. Marshall, 596 Pa.
      587, 947 A.2d 714, 719 (2008). The PCRA court's credibility
      determinations, when supported by the record, are binding on
      this Court. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d
      523, 532, 539 (2009). However, this Court applies a de novo
      standard of review to the PCRA court's legal conclusions.
      Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810
      (2007).

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). Accord

Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“If supported by

the record, the PCRA court's credibility determinations and factual findings

are binding on this Court; however, we apply a de novo standard of review

to the PCRA court's legal conclusions.”).

      Before we can address the merits of any of Appellant’s positions, we

must determine whether Appellant’s April 14, 2015 PCRA petition was timely

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filed as that issue implicates our jurisdiction.   Commonwealth v. Miller,

102 A.3d 988 (Pa.Super. 2014). If a PCRA petition is untimely, “neither this

Court nor the trial court has jurisdiction over the petition.” Id. at 992

(citation omitted); see Commonwealth v. Chester, 895 A.2d 520, 522

(Pa. 2006) (“[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.”).

      Any PCRA petition has to be filed within one year of the date the

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must

determine when Appellant’s judgment of sentence became final.               “A

judgment 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. § 9545(b)(3). In this case, since Appellant did not file a

direct appeal from his July 18, 2011 judgment of sentence, that sentence

became final thirty days later, or on August 17, 2011. Appellant had until

August 17, 2012, to file a timely PCRA petition, and his April 14, 2015

petition is untimely.

      There are three exceptions to the one-year time bar of § 9545: 1)

governmental officials interfered with presentation of the claim; 2) the facts

underlying the claim were unknown to the defendant and could not have

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been discovered by the exercise of due diligence; and 3) the right asserted

is a constitutional right that was recognized by our Supreme Court or the

United States Supreme Court after a defendant’s judgment of sentence

became final and the Supreme Court or the United States Supreme Court

has held that right to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i-iii). To

invoke   an   exception,   the    petitioner    must   plead   and    prove    it.

Commonwealth v.        Beasley,    741   A.2d    1258,   1261-62     (Pa.   1999)

(petitioner has burden to plead and prove exceptions).         In addition, any

exception must be raised within sixty days of the date the claim could have

been presented. 42 Pa.C.S. § 9545(b)(2).

      Herein, Appellant does not specifically invoke the newly-recognized

constitutional right exception to the PCRA time requirements.         He simply

notes that the mandatory minimum sentencing provision in question, as well

as others, have been struck down in their entirety as unconstitutional under

Alleyne and that his sentence is unconstitutional and illegal.          He also

observes that legality of sentence issues cannot be waived.

      Our Supreme Court recently ruled that Alleyne does not apply

retroactively to attacks upon mandatory minimum sentences advanced on

collateral review. Commonwealth v. Washington, 2016 WL 3909088 (Pa.

July 19, 2016). Under Washington, Appellant cannot, by means of a PCRA

petition, attack the validity of his sentence on the bases that it included




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imposition    of    mandatory   minimum    sentences   that    were   rendered

unconstitutional under Alleyne.

      Additionally, an attack to the legality of a sentence, even though non-

waivable, still must be brought pursuant to a timely PCRA petition. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (although legality

of sentence is always subject to review within PCRA, claims must still first

satisfy the PCRA’s time limits or a statutory exception).     Thus, Appellant’s

assertion that he is serving an illegal sentence fails to overcome the PCRA’s

time bar.

      Moreover, even to the extent that we treat Appellant’s citation to

Alleyne as leveling a basis to circumvent the time bar, his claim fails for

another reason.      Appellant failed to satisfy the threshold requirement of

asserting the statutory exception within sixty days of the date the claim

could be presented.      See 42 Pa.C.S. § 9545(b)(2).       The United States

Supreme Court decided Alleyne on June 17, 2013, and Appellant did not

filed his petition seeking relief under its provisions until April 14, 2015,

nearly two years after that case was decided. Appellant cannot obtain relief

under Alleyne under this untimely filed PCRA petition. Hence, we affirm the

denial of relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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