J-S08010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW ALLEN LAWTON                       :
                                               :
                       Appellant               :   No. 770 WDA 2019

              Appeal from the PCRA Order Entered April 25, 2019
      In the Court of Common Pleas of Potter County Criminal Division at
                       No(s): CP-53-CR-0000187-2010


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                                FILED MARCH 27, 2020

       Appellant, Matthew Allen Lawton, appeals pro se from the order entered

April 25, 2019, denying Appellant’s pro se second petition filed pursuant to

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

affirm.

       The record demonstrates that on September 10, 2012, a jury convicted

Appellant of rape of a child (4 counts), involuntary deviate sexual intercourse

with a child (4 counts), aggravated indecent assault of a child (4 counts),

indecent assault of a person less than 13 years of age (13 counts), and

corruption of minors (2 counts) in connection with his sexual assault of a

10-year-old child.1       On September 10, 2012, the trial court sentenced

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1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), and 6301(a)(1),
respectively.
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Appellant to an aggregate 20 to 40 years’ incarceration.2 This Court affirmed

Appellant’s judgment of sentence on February 21, 2014. Commonwealth v.

Lawton, 97 A.3d 810 (Pa. Super. 2014) (unpublished memorandum). Our

Supreme Court denied allocatur on August 26, 2014.                 Commonwealth v.

Lawton, 99 A.3d 76 (Pa. 2014). Appellant did not seek a writ of certiorari

from the Supreme Court of the United States.

        On February 15, 2015, Appellant filed pro se his first PCRA petition

asserting claims of ineffectiveness of trial counsel. The PCRA court appointed

Jarett R. Smith, Esq. (“Attorney Smith”) to represent Appellant.                 Attorney

Smith filed an amended PCRA petition on May 29, 2015. After a hearing on

the matter, the PCRA court denied Appellant’s PCRA petition.                 This Court

subsequently      affirmed    the   denial     of   Appellant’s   first   PCRA   petition.

Commonwealth v. Lawton, 159 A.3d 37 (Pa. Super. 2016) (unpublished

memorandum).        Our Supreme Court denied allocatur on January 9, 2018.

Commonwealth v. Lawton, 178 A.3d 734 (Pa. 2018).

        On February 1, 2018, Appellant filed pro se his second PCRA petition

asserting claims of ineffectiveness of PCRA counsel. The PCRA court provided

notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the PCRA petition

without an evidentiary hearing because the PCRA petition was untimely and

Appellant failed to invoke any of the exceptions to the PCRA jurisdictional

time-bar. Appellant filed pro se a response to the PCRA court’s notice of intent

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2   Order of Sentence, 9/11/12.

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to dismiss his PCRA petition. The PCRA court appointed Daniel A. Stefanides,

Esq. (“Attorney Stefanides”) to represent Appellant on his second PCRA

petition. On March 14, 2019, Attorney Stefanides filed a motion to withdraw

and a Turner/Finley3 no merit letter concluding that Appellant’s claims were

without merit. On March 19, 2019, the PCRA court provided a Rule 907 notice

of its intent to dismiss Appellant’s second PCRA petition within 20 days without

an evidentiary hearing. On April 9, 2019, Appellant filed pro se a response to

Attorney Stefanides’ Turner/Finley no merit letter. On April 25, 2019, the

PCRA court denied Appellant’s second PCRA petition as untimely and failing to

invoke an exception to the PCRA jurisdictional time-bar. The PCRA court also

granted Attorney Stefanides’ motion to withdraw. This appeal followed. 4

       Appellant raises the following issues for our review:

       1) Did []Appellant's first PCRA [c]ounsel[, Attorney Smith,]
       knowingly [commit] ineffective [assistance] of counsel?

       2) Did []Appellant's [f]irst PCRA [c]ounsel[, Attorney Smith,]
       knowingly violate the [equal] [r]ights [a]ct?5


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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4 The PCRA court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
complied. In lieu of filing a Rule 1925(a) opinion, the PCRA court relied on its
April 25, 2019 order and Attorney Stefanides’ Turner/Finley no merit letter
as setting forth the reasons for dismissing Appellant’s PCRA petition.

5A review of Appellant’s pro se brief demonstrates that Appellant’s claim is
based upon an alleged violation of the Americans with Disabilities Act, 42
U.S.C.A. §§ 12101-12213.

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      3) Did the [PCRA c]ourt know of the above acts?

      4) Did []Appellant's first PCRA [c]ounsel fail to act in the best
      [interest] of his [client] by failing to argue [an u]nconstitutional
      [m]andatory [m]inimum[ sentence claim], and lied to his [client]
      about it?

Appellant’s Brief at 2.

      In order to be timely filed, a PCRA petition, including second and

subsequent petitions, must be filed within one year of when an appellant’s

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “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 the time for seeking the review.”

42 Pa.C.S.A. § 9545(b)(3). Our Supreme Court has held that the PCRA’s time

restriction is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287,

292 (Pa. 2004).     In addition, our Supreme Court has instructed that the

timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely,

courts lack jurisdiction over the petition. Commonwealth v. Wharton, 886

A.2d 1120, 1124 (Pa. 2005); see also Commonwealth v. Callahan, 101

A.3d 118, 121 (Pa. Super. 2014) (holding courts do not have jurisdiction over

untimely PCRA petition).

      Here, the trial court sentenced appellant on September 10, 2012. This

Court affirmed the judgment of sentence on February 21, 2014. Our Supreme

Court denied review on August 26, 2014. Appellant did not seek discretionary

review with the Supreme Court of the United States.              Consequently,



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Appellant’s judgment of sentence became final on November 24, 2014,

90 days after the expiration of the time for seeking discretionary review with

the Supreme Court of the United States. U.S. Sup. Ct. R. 13(1) (stating, “[a]

petition for a writ of certiorari seeking review of a judgment of a lower state

court that is subject to discretionary review by the state court of last resort is

timely when it is filed with the Clerk within 90 days after entry of the order

denying discretionary review”); see also 42 Pa.C.S.A. § 9545(b)(3).

Therefore, Appellant’s second PCRA petition filed on February 1, 2018, more

than three years after his judgment of sentence became final, is patently

untimely.

       If a PCRA petition is untimely filed, the jurisdictional time-bar can only

be overcome if the petitioner alleges and proves one of the three statutory

exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.

Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions

to the one-year time-bar are as follows:         “(1) interference by government

officials in the presentation of the claim; (2) newly discovered facts; and (3)

an after-recognized constitutional right.” Commonwealth v. Brandon, 51

A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

A petition invoking an exception to the jurisdictional time-bar must be filed

within one year of the date that the claim could have been presented. 6 42

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6 We note that effective December 24, 2018, the time period in which to file
a petition invoking one of the three exceptions was extended from sixty days



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Pa.C.S.A. § 9545(b)(2). If appellant fails to invoke a valid exception to the

PCRA time-bar, courts are without jurisdiction to review the petition or provide

relief. Spotz, 171 A.3d at 676.

       A review of Appellant’s brief demonstrates that Appellant is attempting

to   assert   the    after-recognized     constitutional   right    exception   to   the

jurisdictional time-bar under Section 9545(b)(1)(iii).             Appellant’s Brief at

13-15. Appellant argues that his sentence was illegal under the United States

Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013)

and that the Alleyne decision applied to PCRA petitioners whose sentences

were not final when the decision was rendered. Appellant’s Brief at 14-15,

citing Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018).

       In order to invoke the exception under Section 9545(b)(1)(iii), the

petitioner must demonstrate that 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)(iii).     The Supreme Court of the United States “rendered the

Alleyne decision on June 17, 2013, and held that sentencing schemes which

predicated the imposition of a mandatory minimum sentence on a fact found

____________________________________________


to one year. 42 Pa.C.S.A. § 9545(b)(2). This amendment applies to claims
arising one year prior to the effective date of the amendment; arising
December 24, 2017, or later. Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
Because Appellant filed his second PCRA petition on February 1, 2018, this
amendment applies.

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by the sentencing court, by a preponderance of the evidence, were

unconstitutional.” DiMatteo, 177 A.3d at 185.

     [A]n issue pertaining to Alleyne goes to the legality of the
     sentence. See Commonwealth v. Newman, 99 A.3d 86, 90
     (Pa. Super. 2014) (en banc) (stating, “a challenge to a sentence
     premised upon Alleyne likewise implicates the legality of the
     sentence and cannot be waived on appeal”). It is generally true
     that “this Court is endowed with the ability to consider an issue of
     illegality of sentence sua sponte.” Commonwealth v. Orellana,
     86 A.3d 877, 883 n.7 (Pa. Super. 2014) (citation omitted).
     However, in order for this Court to review a legality of sentence
     claim, there must be a basis for our jurisdiction to engage in such
     review. See Commonwealth v. Borovichka, 18 A.3d 1242,
     1254 [n.8] (Pa. Super. 2011) (stating, “a challenge to the legality
     of a sentence may be entertained as long as the reviewing court
     has jurisdiction”) (citation omitted).

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

original brackets omitted). The decision in Alleyne “sets forth a new rule of

constitutional law” that does not apply retroactively to cases on collateral

review.   Commonwealth v. Washington, 142 A.3d 810, 818, 820 (Pa.

2016).

     In cases where the Alleyne decision was rendered before the judgment

of sentence became final, Alleyne’s application would not be retroactive and

the legality of the sentence could be reviewed if the PCRA petition is timely.

DiMatteo, 177 A.3d at 192 (reasoning that “if the judgment of sentence was

not final [at the time when the Alleyne decision was rendered], then [the

Alleyne decision’s] application is not truly ‘retroactive’”). “[T]hough not

technically waivable, a legality [of sentence] claim may nevertheless be lost

should it be raised in an untimely PCRA petition for which no time-bar

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exception applies, thus depriving the court of jurisdiction over the claim.”

Miller, 102 A.3d at 996 (original quotation marks and ellipses omitted), citing

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014). “[A] claim

of ineffective assistance of counsel does not save an otherwise untimely

[PCRA] petition for review on the merits” Commonwealth v. Ross, 140 A.3d

55, 60 n.4 (Pa. Super. 2016), citing Commonwealth v. Fahy, 737 A.2d 214

(Pa. 1999), (original quotation marks omitted), appeal denied, 165 A.3d 908

(Pa. 2017).

      Here, Appellant’s judgment of sentence did not become final until after

the decision in Alleyne. Therefore, the application of the Alleyne decision in

the case sub judice would not be viewed as being retroactively applied.

However, we may only review the merits of Appellant’s illegal sentence claim

in a timely PCRA petition or an untimely PCRA petition properly invoking one

of the three narrow statutory exceptions to the one-year time-bar under

Section 9545(b)(1).

      The     decision in   Alleyne, although   recognizing a   new    rule   of

constitutional law, does not provide an exception to the PCRA jurisdiction

time-bar under Section 9545(b)(1)(iii) because the new rule of constitutional

law was not declared to apply retroactively.       Therefore, the decision in

Alleyne did not announce an after-recognized constitutional right within the

meaning of Section 9545(b)(1)(iii). Furthermore, raising a challenge to the

legality of Appellant’s sentence under Alleyne within a claim of ineffective

assistance of PCRA counsel in an patently untimely PCRA petition does not

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invoke an exception to the PCRA jurisdiction time-bar under Section

9545(b)(1)(iii).   Therefore, the PCRA court properly dismissed Appellant’s

PCRA petition as untimely and without exception.

      Consequently, the PCRA court lacked jurisdiction to review Appellant’s

PCRA petition, and we may not review the petition on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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