J-S78021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    THOMAS BROWN                               :
                                               :
                      Appellant                :   No. 648 WDA 2017

                   Appeal from the PCRA Order March 7, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0017179-2001


BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                FILED MARCH 27, 2018

        Appellant, Thomas Brown, appeals from the March 7, 2017 Order

dismissing Appellant’s third Petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. We affirm.

        On April 21, 2005, a jury convicted Appellant of Robbery and

Aggravated Assault1 in connection with the July 21, 2001 shooting of a

Pittsburgh jitney driver.2 On June 23, 2005, the court sentenced Appellant

to two concurrent terms of 8 to 20 years’ incarceration and ordered

Appellant to pay $6,000.00 in restitution. The court gave Appellant 1,224

days’ credit for time served. Appellant did not file a Post-Sentence Motion.

This Court affirmed Appellant’s Judgment of Sentence on June 20, 2006, and

____________________________________________


1   18 Pa.C.S. § 3701(a)(1) and 18 Pa.C.S. § 2702(a), respectively.
2   A jitney is an unlicensed taxi.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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on February 22, 2007, our Supreme Court denied Appellant’s Petition for

Allowance of Appeal.         See Commonwealth v. Neil McWilson A/K/A

Thomas Brown, No. 1290 WDA 2005 (Pa. Super. filed June 20, 2006)

(unpublished memorandum), appeal denied, 917 A.2d 313 (Pa. filed

February 22, 2007). His Judgment of Sentence, thus, became final on March

23, 2007.

       On June 13, 2007, Appellant filed his first PCRA Petition.   The PCRA

court dismissed this Petition on March 2, 2010, and this Court affirmed on

March 21, 2011.         See Commonwealth v. Brown, 26 A.3d 1200 (Pa.

Super. 2011) (unpublished memorandum). Appellant did not file a Petition

for Allowance of Appeal with the Pennsylvania Supreme Court.

       On June 8, 2016, Appellant filed a pro se “Petitioner’s Amendment,”

which the PCRA court treated as a second PCRA Petition. In his “Petitioner’s

Amendment” Appellant alleged that his sentence is illegal pursuant to

Alleyne v. United States, 570 U.S. 99 (2013)3 and Commonwealth v.

Wolfe, 121 A.3d 433 (Pa. 2015) (per curiam).         Petitioner’s Amendment,

6/8/16, at ¶¶ 2-4.       The PCRA court dismissed this Petition on August 30,

2016. Appellant did not seek appellate review of this Order.



____________________________________________


3 On June 17, 2013, the U.S. Supreme Court held in Alleyne, that, other
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory minimum must be submitted to a jury
and proved beyond a reasonable doubt. Alleyne, 750 U.S. at 114-15.



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         On December 28, 2016, Appellant filed the instant PCRA Petition, his

third.    In his Petition, Appellant again alleged that his sentence is illegal

pursuant to Alleyne, supra and Wolfe, supra. Petition, 12/28/16, at ¶¶ 2,

10, 12. On February 8, 2017, the PCRA court issued a Notice of Intent to

Dismiss Appellant’s PCRA Petition pursuant to Pa.R.Crim.P. 907 as untimely.

Appellant did not file a Response to this Notice. Thus, on March 7, 2017, the

court dismissed Appellant’s Petition.

         This timely appeal followed.   Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

         Appellant raises the following issue on appeal:

         [Appellant] was subjected to an illegal sentence on CC No.
         17179-2001[] because he was sentenced to the mandatory
         minimum under 42 Pa.C.S.[] § 9712. The facts needed to
         impose the mandatory minimum sentence were not found
         beyond a reasonable doubt[] by a factfinder, nor after notice and
         presentation of the evidence contrary to Commonwealth v.
         Thompson, 136 A.3d 178 (Pa. Super. 2016); Commonwealth
         v. Watley, 81 A.3d 108 (Pa. Super. 2013); and Alleyne v.
         United States, [ ] 133 S. Ct. [2151] (2013).

Appellant’s Brief at 3.

         We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine




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issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any Petition “including a second or subsequent

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

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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). The statutory exceptions to the timeliness provisions allow for

very limited circumstances to excuse the late filing of a petition; a petitioner

asserting an exception must file a petition within 60 days of the date the

claim could have been presented. See 42 Pa.C.S. § 9545(b)(1)-(2).

      Here, Appellant’s Judgment of Sentence became final on March 23,

2007, upon expiration of the time to file a Petition for Writ of Certiorari with

the U.S. Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13.

In order to be timely, Appellant must have submitted his PCRA Petition by

March 23, 2008. See 42 Pa.C.S. § 9545(b)(3). Appellant filed the instant


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PCRA on December 28, 2016, over 8 years after his Judgment of Sentence

became final. The PCRA court properly concluded that Appellant’s Petition is

facially untimely.

      Appellant attempts to invoke the timeliness exception under Section

9545(b)(1)(iii), alleging that his illegal sentence claim is based on a newly-

recognized constitutional right as provided in Alleyne, which he asserts is

retroactive in application. This attempt fails.

      As long as this Court has jurisdiction over the matter, a legality of

sentencing issue is reviewable and cannot be waived. Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).          However, a legality of

sentencing issue must be raised in a timely filed PCRA Petition over which

we have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto.”); Commonwealth v. Riggle,

119 A.3d 1058, 1064-67 (Pa. Super. 2015); Commonwealth v. Miller, 102

A.3d 988, 995-96 (Pa. Super. 2014) (explaining that the decision in Alleyne

does not invalidate a mandatory minimum sentence when presented in an

untimely PCRA Petition); Commonwealth v. Ruiz, 131 A.3d 54, 56 (Pa.

Super. 2015) (remanding for resentencing without mandatory minimum

where defendant was sentenced 12 days before Alleyne, his judgment of




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sentence was not final on the date Alleyne was decided, and the defendant

filed a timely PCRA Petition over which this Court had jurisdiction).

      Our Supreme Court has reiterated that Alleyne does not apply

retroactively on post-conviction collateral review. See Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016).

      Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely.     See

PCRA Ct. Op. at 3-5. We, thus, affirm the denial of PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2018




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