J-S04033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                    v.                     :
                                           :
DAVID FITZGERALD,                          :
                                           :
                  Appellant                :     No. 410 WDA 2015

               Appeal from the PCRA Order February 24, 2015
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0009654-2008

BEFORE:     BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED FEBRUARY 11, 2016

      David Fitzgerald (Appellant) appeals from the February 24, 2015 order

which dismissed his petition filed pursuant to the Post Conviction Relief Act

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

      In 2009, following attempted-homicide convictions, Appellant was

sentenced to two concurrent terms of 10 to 20 years of imprisonment. This

Court denied Appellant relief on direct appeal, and his judgment of sentence

became final in 2011 after our Supreme Court denied his petition for

allowance of appeal.     Commonwealth v. Fitzgerald, 24 A.3d 467 (Pa.

Super. 2011) (unpublished memorandum), appeal denied, 25 A.3d 327 (Pa.

2011).

      Appellant’s first, timely-filed PCRA petition resulted in no relief.

Appellant filed the petition that is the subject of the instant appeal on August


*Retired Senior Judge assigned to the Superior Court.
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20, 2013.1    Therein, he claimed that he is entitled to relief in the form of

resentencing because his sentence is illegal under Alleyne v. United

States, ––– U.S.    –––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding

that a fact which triggers the imposition of a mandatory minimum sentence

is an element of the crime and must, therefore, be determined beyond a

reasonable doubt by a jury). Amended PCRA Petition, 12/8/2014, at 3. See

also Motion for Post Conviction Collateral Relief, 8/20/2013, attached

Memorandum of Fact and Law at 4 (same).

      The PCRA court issued notice of its intent to dismiss the petition as

untimely filed without a hearing, to which Appellant filed a response in

opposition.    On February 24, 2014, the PCRA court entered an order

dismissing Appellant’s petition. Appellant timely filed a notice of appeal, and

both Appellant and the PCRA court complied with Pa.R.A.P. 1925.             On

appeal, Appellant claims, inter alia, that his petition was timely filed under

42 Pa.C.S. § 9545(b)(1)(iii). Appellant’s Brief at 3.

      The timeliness of a post-conviction petition is jurisdictional.     See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has




1
  This petition was stayed until the appeal from the dismissal of his first
PCRA petition was concluded in 2014.


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jurisdiction over the petition.   Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available.           42

Pa.C.S. § 9545(b) and (c).

      It is clear that Appellant’s 2013 petition is facially untimely: his

judgment of sentence became final in 2011. However, Appellant alleges that

his petition satisfies the following timeliness exception: “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. § 9545(b)(1)(iii).

      Appellant’s argument is unavailing. As this Court has explained,

            [e]ven assuming that Alleyne did announce a new
      constitutional right, neither our Supreme Court, nor the United
      States Supreme Court has held that Alleyne is to be applied
      retroactively to cases in which the judgment of sentence had
      become final. This is fatal to Appellant’s argument regarding the
      PCRA time-bar.

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




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      Accordingly, Appellant failed to establish the applicability of a

timeliness exception, and the PCRA court properly dismissed the petition for

lack of jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/11/2016




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