J-S24032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMEY C. ROBERTSON

                            Appellant                No. 921 MDA 2015


                   Appeal from the PCRA Order April 21, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001791-2002


BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED MAY 13, 2016

        Appellant, Jamey C. Robertson, appeals from the order entered in the

Lebanon County Court of Common Pleas, dismissing his serial petition filed

under the Post Conviction Relief Act (“PCRA”).1         We affirm and deny

Appellant’s open pro se motion for “equal rights under the law.”

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

On October 17, 1999, Appellant entered a pizza shop, demanded money,

and repeatedly stabbed an employee. A jury convicted Appellant on August

7, 2003, of criminal attempt—homicide, aggravated assault, robbery,

possessing an instrument of crime, and recklessly endangering another

person.     The court sentenced Appellant on September 17, 2003, to an
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
J-S24032-16


aggregate term of thirty to sixty years’ imprisonment. This Court affirmed

the judgment of sentence on April 26, 2005.         See Commonwealth v.

Robertson, 874 A.2d 1200 (Pa.Super. 2005).

      Appellant timely filed his first PCRA petition pro se on April 28, 2006.

The PCRA court appointed counsel, who filed several amended petitions. A

hearing was held on October 9, 2007, and the PCRA court denied Appellant’s

petition on June 30, 2008. This Court affirmed on September 16, 2009, and

our Supreme Court denied allowance of appeal on April 12, 2010.          See

Commonwealth v. Robertson, 986 A.2d 1263 (Pa.Super. 2009), appeal

denied, 606 Pa. 648, 992 A.2d 888 (2010).

      On March 9, 2015, Appellant filed pro se the current PCRA petition.

The PCRA court issued Rule 907 notice on March 26, 2015, and dismissed

Appellant’s petition on April 21, 2015.    Appellant timely filed on May 18,

2015, a pro se notice of appeal. On June 4, 2015, the PCRA court ordered

Appellant to file a Rule 1925(b) statement. Appellant failed to comply with

the PCRA court’s order, and instead filed a pro se request to withdraw his

current PCRA petition. The PCRA court entered an order on June 30, 2015,

which deemed all of Appellant’s issues waived for failure to comply with the

Rule 1925(b) order.

      Appellant raises the following issue for our review:

         THE [PCRA] COURT’S DENIAL OF [APPELLANT’S] 2ND PCRA
         CLAIMS REQUESTING RESENTENCING, MODIFICATION
         AND RECONSIDERATION OF THE SENTENCE, IS IN ERROR.

(Appellant’s Brief at 6).
                                     -2-
J-S24032-16


      As a preliminary matter, we must determine whether Appellant timely

filed his PCRA petition.      Commonwealth v. Harris, 972 A.2d 1196

(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003).   The most recent amendments to the PCRA, effective January 16,

1996, provide that a PCRA petition, including a second or subsequent

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

becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830

A.2d 1273 (Pa.Super. 2003). A judgment is deemed 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).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.    42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

          (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


                                      -3-
J-S24032-16


          (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.A. § 9545(b)(1)(i)-(iii).            Additionally, a petitioner asserting a

timeliness exception must file a petition within sixty (60) days of the date

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such,

when a PCRA petition is not filed within one year of the expiration of direct

review, or not eligible for one of the three limited exceptions, or entitled to

one of the exceptions, but not filed within 60 days of the date that the claim

could have been first brought, the trial court has no power to address the

substantive merits of a petitioner’s PCRA claims.”              Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

       Instantly, Appellant’s judgment of sentence became final on May 26,

2005. Appellant filed his current petition on March 9, 2015, almost 10 years

later; thus, the petition is patently untimely.               See 42 Pa.C.S.A. §

9545(b)(1). Appellant attempts to invoke Sections 9545(b)(1)(ii) and (iii),

contending the court failed to consider mitigating factors and imposed a

sentence outside the guidelines,2 which is illegal pursuant to the United

States Supreme Court’s decision in Alleyne v. United States, ___ U.S.


____________________________________________


2
   See Commonwealth v. Wrecks, 934 A.2d 1287 (Pa.Super. 2007)
(stating challenges to discretionary aspects of sentencing are not cognizable
under PCRA).


                                           -4-
J-S24032-16


___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any fact increasing

mandatory minimum sentence for crime is considered element of crime to be

submitted to fact-finder and found beyond reasonable doubt).           See 42

Pa.C.S.A. § 9545(b)(1)(iii).     Nevertheless, Alleyne is not implicated in

Appellant’s sentence, as the court did not impose any mandatory minimums.

Thus, the PCRA court properly dismissed Appellant’s petition.

     Moreover, “to preserve their claims for appellate review, appellants

must comply whenever the [PCRA] court orders them to file a Statement of

[Errors] Complained of on Appeal pursuant to [Rule] 1925. Any issues not

raised   in    a   [Rule]   1925(b)   statement   will   be   deemed   waived.”

Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005)

(quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309

(1998)).      Here, Appellant failed to comply with the PCRA court’s Rule

1925(b) order. Therefore, Appellant’s claim would be waived in any event.

See id. Accordingly, we affirm the PCRA court’s order and deny Appellant’s

pro se motion.

     Order affirmed; Appellant’s pro se motion is denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016

                                      -5-
