J-S40013-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                    v.

HINDOVEI SENESSIE-MIDDLETON

                          Appellant                 No. 2885 EDA 2015


               Appeal from the PCRA Order August 31, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0007175-2012


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 20, 2016

      Hindovei Senessie-Middleton appeals from the August 31, 2015 order

dismissing his second PCRA petition as untimely filed. We affirm.

      On May 25, 2012, Darby Borough police officers found Appellant in

possession of a Bersa Firestorm .380 caliber gun that had its serial number

obliterated. Police also recovered from Appellant’s shoes nine clear glassine

bags containing marijuana.      Appellant was charged with various offenses,

including persons not to possess firearms. 18 Pa.C.S. § 6105. On January

18, 2013, Appellant entered a negotiated guilty plea to that offense, a

second-degree    felony    carrying   a   maximum   sentence   of   ten   years

incarceration.   Appellant was sentenced that same day to the negotiated

term of imprisonment of five to ten years.          No mandatory minimum
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sentence was involved in Appellant’s sentencing; he received the statutorily-

authorized maximum sentence for a second-degree felony. The record also

establishes that Appellant’s prior record score was repeat felony offender so

that the sentence in question was also within the sentencing guidelines.

Appellant did not file a direct appeal.

      On August 4, 2014, Appellant filed a PCRA petition suggesting that he

was entitled to relief under Alleyne v. United States, 133 S.Ct. 2151

(2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000). In the latter

case, the United States Supreme Court held, “[A]ny fact (other than prior

conviction) that increases the maximum penalty for a crime must be charged

in an indictment, submitted to a jury, and proven beyond a reasonable

doubt.” Id. at 476 (quoting Jones v. United States, 526 U.S. 227, 243, n.

6 (1999)).    Alleyne applied the holding of Apprendi in the mandatory

minimum sentencing context. Under Alleyne, any fact, other than a prior

conviction, that results in the imposition of a mandatory minimum sentence

must be submitted to a jury and proven beyond a reasonable doubt.

      After Appellant filed his PCRA petition, counsel was appointed.

Counsel presented a petition to withdraw and no-merit letter pursuant to

Commonwealth         v.   Turner,     544   A.2d   927   (Pa.   1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). In

his no-merit letter, counsel concluded that the August 4, 2014 PCRA petition

was untimely.     On January 23, 2015, the trial court granted counsel’s

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application to withdraw and issued notice of its intent to dismiss the petition

without a hearing. The petition was dismissed on February 20, 2015.

        On July 29, 2015, Appellant filed a second pro se PCRA petition,

averring that he was sentenced pursuant to an invalid mandatory minimum

sentence.    Appellant invoked Commonwealth v. Hopkins, 117 A.3d 247

(Pa. 2015), wherein our Supreme Court, pursuant to Alleyne, struck down

the mandatory minimum sentencing provision contained in 18 Pa.C.S. §

6317.

        Appellant’s July 29, 2015 PCRA petition was dismissed on August 21,

2015, and this appeal followed.    Appellant raises one issue: “Whether the

PCRA court committed an error of law and abused its discretion when it

denied relief where the court had jurisdiction pursuant to 42 Pa.C.S. §

9545(b)(1)(ii), as the clarification/interpretation via Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015), dates back to the day of enactment.”

Appellant’s brief at 3. We first outline our standard of review:

            Under the applicable standard of review, we must determine
        whether the ruling of the PCRA court is supported by the record
        and is free of legal error. Commonwealth v. Marshall, 596 Pa.
        587, 947 A.2d 714, 719 (2008). The PCRA court's credibility
        determinations, when supported by the record, are binding on
        this Court. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d
        523, 532, 539 (2009). However, this Court applies a de novo
        standard of review to the PCRA court's legal conclusions.
        Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810
        (2007).




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Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). Accord

Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“If supported by

the record, the PCRA court's credibility determinations and factual findings

are binding on this Court; however, we apply a de novo standard of review

to the PCRA court's legal conclusions.”).

      Before we can address the merits of Appellant’s position, we must first

determine whether Appellant’s July 29, 2015 PCRA petition was timely filed

as that issue implicates our jurisdiction.   Commonwealth v. Miller, 102

A.3d 988 (Pa.Super. 2014).      If a PCRA petition is untimely, “neither this

Court nor the trial court has jurisdiction over the petition.” Id. at 992

(citation omitted); see Commonwealth v. Chester, 895 A.2d 520, 522

(Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the trial

court has jurisdiction over the petition. Without jurisdiction, we simply do

not have the legal authority to address the substantive claims.”).

      Any PCRA petition must be filed within one year of the date the

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1).    Accordingly, we initially

determine when Appellant’s judgment of sentence became final.               “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 time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not file a

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direct appeal from his January 18, 2013 judgment of sentence, it became

final on February 17, 2013. He had one year, or until February 17, 2014, to

file a timely PCRA petition, and his July 29, 2015 petition is untimely. There

are three exceptions to the one-year time bar of § 9545:

       (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

      (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. § 9545(b)(1)(i-iii). “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant invokes the newly-discovered facts exception.      He argues

that his PCRA petition is timely under § 9545(b)(1)(ii) due to “the Supreme

Court decision in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).”

Appellant’s brief at 7.   However, it is settled that “section 9545(b)(1)(ii)

applies only if the petitioner has uncovered facts that could not have been

ascertained through due diligence, and judicial determinations are not facts.”

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011).                Appellant’s



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invocation   of   the   newly-discovered   facts   exception   based   upon    the

dissemination of the Hopkins decision therefore fails.

      Appellant also argues that Alleyne and its progeny should be

retroactively applied, obstensibly maintaining that the newly-recognized

constitutional right exception of § 9545(b)(1)(iii) is applicable herein.       In

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

ruled that an Alleyne claim does not fall within § 9545(b)(1)(iii).           That

provision requires that the court announcing the new constitutional right

hold that its constitutional decision is to be applied retroactively. Neither the

United States Supreme Court nor our Supreme Court has ruled that Alleyne

is retroactive.    Likewise, none of the cases applying Alleyne has been

considered to apply retroactively to PCRA petitioners by the United States

Supreme Court or the Pennsylvania Supreme Court.           Thus, this petition is

not saved from untimeliness by a retroactivity analysis regarding Alleyne

and its progeny.

      So that Appellant will cease seeking relief under case law that

constantly emanates from this Court and our Supreme Court pursuant to

Alleyne, we stress the following to Appellant.       He is not entitled to relief

either under Alleyne or any of the case law applying it.         No mandatory

minimum sentence was applied herein. Appellant merely was sentenced to

the statutory maximum sentence permitted for a second-degree felony after




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he pled guilty to the elements of a crime that was graded as a second-

degree felony.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2016




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