J   -S26010-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                           v.

JOSEPH E. BURCKHARD

                                Appellant                  No. 1622 MDA 2016


                  Appeal from the PCRA Order September 7, 2016
                  In the Court of Common Pleas of Centre County
                Criminal Division at No(s): CP-14-CR-0000953-1996


BEFORE:        BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                                 FILED AUGUST 01, 2017

        Joseph      E.   Burckhard appeals from the PCRA court's dismissal of his

third PCRA petition as untimely. We affirm.

        On June 4, 1997, a          jury convicted Appellant of fifty-four counts of
involuntary deviate sexual intercourse ("IDSI"), sixteen counts of indecent

assault, and one count of corruption of minors.           The convictions stemmed

from two years of sexual abuse Appellant perpetrated upon six -year -old

P.K., while the child was in Appellant's home and entrusted to the care of his

wife.    On July 29, 1997, the court sentenced him to five to ten years

imprisonment on each of seven of the IDSI counts, its stated intention being

to    impose    a    cumulative minimum sentence of thirty-five years and          a


cumulative maximum sentence of seventy years imprisonment. On each of


* Former Justice specially assigned to the Superior Court.
J   -S26010-17



the remaining forty-six IDSI counts, the court imposed the same five to ten

year term of imprisonment, but ran all of those sentences concurrently with

the thirty-five to seventy years. The applicability of           a   mandatory minimum

sentence of five to ten years imprisonment for sexual assault of                a   victim

under age sixteen was acknowledged, but the sentencing court exercised its

discretion to impose the mandatory sentences concurrently.                In addition, it

did not impose     a   sentence on the sixteen counts of indecent assault and one

count of corruption of minors, finding that these offenses merged with the

more serious offenses.

        This Court affirmed judgment of sentence on September 29, 2000, and

Appellant filed        his   first   PCRA     petition on April 12, 2001.       Following

appointment of counsel, an amended petition was filed and an evidentiary

hearing held.      PCRA      relief was denied on July 22, 2003.        Appellant filed   a


timely appeal, this Court affirmed, and the Supreme Court denied allowance

of appeal. Appellant filed           a   second PCRA petition on June 24, 2009, counsel

was appointed and the petition amended. After Appellant pled, but failed to

prove,   a   timeliness exception based on newly -discovered evidence, the PCRA

court dismissed the petition as untimely on November 5, 2010

        On July 1, 2015, Appellant filed the instant PCRA petition styled as

"Motion for Correction of Sentence," counsel was appointed, new counsel




                                                -2
J   -S26010-17



was appointed at Appellant's request, and the second lawyer filed                 a   motion

to withdraw and no -merit letter pursuant to             Turner/Finley.'      Counsel's

petition to withdraw was granted and the court served Rule 907 notice of its

intent to dismiss the petition as untimely.         Ultimately, the court dismissed

the within petition, stating that Appellant had failed to provide any reason

why Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2015), did

not render the petition untimely.

        Appellant timely filed this appeal and presents two issues for our

review:

             the lower court err in denying Appellants' P.C.R.A where
        1. Did
          Appellant challenged the legality of sentence pursuant to
          Alleyne?

        2. Did the lower court abuse its discretion in sentencing
          Appellant to an aggregated sentence of thirty-five to seventy
          years incarceration?

Appellant's brief at   3   (unnecessary capitalization omitted).

        Our standard of review from the denial of post -conviction relief "is

limited to examining whether the PCRA court's determination is supported by

the    evidence   of       record   and   whether   it   is   free   of   legal       error."

Commonwealth v. Watley, 153 A.3d 1034, 1039 (Pa.Super. 2016). We
"will not disturb findings that are supported by the record." Id. at 1040.



1 Commonwealth v. Turner, 544 A.2d 927 (Pa.                               1988),         and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).


                                          -3
J   -S26010-17



         Before   we    address    Appellant's   claims,   however,   we   must first

determine whether we have jurisdiction to entertain the within appeal.              A

PCRA     petition, including   a   second or subsequent petition, must be filed

within     one    year of the      date judgment       of sentence     became final.

Commonwealth v. Robinson, 139 A.3d 178                 (Pa. 2016).    The time -bar is

jurisdictional and implicates the power of the court to adjudicate the

controversy. Id.

         In this case, Appellant's judgment of sentence became final in

November 2001, when he did not seek allowance of appeal from this Court's

order affirming judgment of sentence. Thus, the within petition filed more

than fifteen years later is facially untimely.         However, we do review the

merits of issues raised in PCRA petitions filed beyond the one-year time bar

if the petitioner pleads and proves any one of the following statutorily

enumerated exceptions to the time -bar:

       (i) the failure to raise the claim 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

       (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.


                                          -4
J   -S26010-17



42 Pa.C.S.    §   9545(b)(1)(i)-(iii).    However, even if       a   petition pleads one of

these exceptions, we will not consider it unless the petition was "filed within

60 days of the date the claim could have been presented."                      42 Pa.C.S.   §


9545(b)(2).

        As the Commonwealth notes, Appellant does not address timeliness or

specifically invoke an exception to the time bar. He argues that his sentence

based on mandatory minimum sentencing provisions was illegal, and that he

is   entitled to relief based on the Supreme Court's decision in Alleyne v.

United States, 133 S.Ct. 2151, 2163 (2013), holding that "any fact that, by
law, increases the penalty for      a    crime must be treated as an element of the

offense, submitted to       a   jury, rather than        a   judge, and found beyond        a


reasonable doubt." Our High Court subsequently held in Commonwealth v.

Hopkins, 117 A.3d 247           (Pa. 2015),   that   a    two-year mandatory minimum

sentence for possession of controlled substances within                 a   drug -free school

zone was unconstitutional under Alleyne.

        In order to avail himself of the exception to the time bar for new

constitutional rights, Appellant was required to file            a   petition pleading and

proving the exception.          In his petition, as well as in his appellate brief,

Appellant failed to invoke any exception.                To the extent that his reliance

upon    Alleyne     and   Hopkins       can be construed as invoking the newly -

recognized constitutional right exception, we note that neither Alleyne nor

Hopkins was held by the respective courts to apply retroactively.

                                            - 5 -
J   -S26010-17



Furthermore, our High Court held      in   Washington, supra at 820, that
"Alleyne does not apply retroactively to cases pending   on collateral review."

        Since Appellant did not invoke or prove an exception to the time -bar

that would render his petition timely, we lack jurisdiction to consider his

claims on the merits.

        Order affirmed.



Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 8/1/2017




                                     -6
