J-S40028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                    v.

CURTIS L. SELF, SR.

                           Appellant               No. 3091 EDA 2015


             Appeal from the PCRA Order September 15, 2015
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0003439-2007
                                        CP-15-CR-0004336-2007
                                        CP-15-CR-0004337-2007
                                        CP-15-CR-0004338-2007
                                        CP-15-CR-0004339-2007

BEFORE: BOWES, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                    FILED SEPTEMBER 07, 2016


      Appellant, Curtis L. Self, Sr., files this counseled appeal from the

September 15, 2015, order dismissing his second petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, for lack of

jurisdiction. We affirm.

      The PCRA court summarized the pertinent factual and procedural

history of this case as follows:

         On January 5, 2009, Defendant pled guilty to 5 counts of
         Possession with Intent to deliver Cocaine, 35 P.S. § 780 -
         113-A-30 on Criminal Information Numbers CP-15-CR-
         0003439-2007,      CP-15-CR-0004336-2007,       CP-15-CR-
         0004337-2007; CP-15-CR-0004338-2007, and CP-15-CR-
         0004339-2007. Given the amount of cocaine sold by
         Defendant in these transactions, and the fact that each
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        sale was a subsequent drug delivery, the Commonwealth
        invoked the mandatory minimum of 5 years imprisonment
        on dockets 4336-07, 4337-07, 4338-07 and 4339-07. The
        2 year mandatory on 4339-07 for the drug sale within a
        school zone was waived, and a 7 year mandatory minimum
        was invoked on 3439-07 based on the weight of the drugs
        exceeding 100 grams. The court imposed an aggregate
        sentence of 17 to 34 years imprisonment.

                                    ***

        On January 28, 2010, the Superior Court affirmed the
        judgment of sentence and denied Defendant's motion for
        remand for resentencing. Commonwealth v. Curtis Self,
        616 EDA 2009. Defendant did not file a Petition for
        Allowance of Appeal. Therefore, Defendant's judgment of
        sentence became final on February 28, 2010, 30 days after
        the time period for seeking allocatur expired. See
        Pa.R.A.P. 1113(a); See also, Commonwealth v. Brown,
        943 A.2d 264 (Pa., 2008). Although Defendant timely filed
        his first PCRA petition on January 6, 2011, the trial court
        dismissed the petition on September 30, 2011. On appeal
        the Superior Court affirmed the dismissal of Defendant's
        first PCRA petition. Commonwealth v. Curtis Self, 2868
        EDA 2011 [Nov. 15, 2012; alloc. denied May 7, 2013].
        Defendant's second PCRA petition was filed on July 5,
        2013, three years and four months after his judgment of
        sentence became final.

PCRA Court Order, 9/15/15, at 2-4 n.1.

     Appellant’s second PCRA petition asserts ineffective assistance of his

direct appeal counsel. Appellant states that subsequent to his sentencing in

2009, he cooperated with the Chester County District Attorney’s Office in the

successful prosecution of Shamone Woods, who attempted to kill Appellant

in 2006. Appellant believed that the prosecutor in the matter informed him

and his direct appeal counsel that, in exchange, he would receive a new

sentencing hearing and a reduction in sentence, neither of which ultimately


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happened. Appellant argues that direct appeal counsel failed to pursue new

sentencing and/or sentence reduction on his behalf and that this constitutes

ineffective assistance of counsel. Second PCRA Petition, 7/5/13, at 2.

      After several intermittent filings, the PCRA court issued a Rule 907(1)

Notice of Intent to Dismiss Appellant’s petition on March 19, 2014.          The

PCRA court found Appellant’s argument lacked arguable merit because

Appellant’s   counsel   had   unsuccessfully    raised   Appellant’s   purported

cooperation with police regarding the attempt on his life at the time of his

sentencing. Notice of Intent to Dismiss, 3/19/14, at 11.

      The PCRA court also found that Appellant presented no evidence of

any promise or agreement that Appellant’s sentence would be reconsidered

in exchange for testimony against Mr. Woods.        Id. at 11-12. In addition,

the PCRA court said it would find that Appellant’s claims of cooperation with

police had been litigated in his first PCRA petition, which raised them in a

claim that the Commonwealth made misrepresentations to the trial court

under Brady v. Maryland, 373 A.2d 83 (1963), and that they therefore

could not be raised in a second petition. Notice of Intent to Dismiss at 11-

12, 14-15.

      Thereafter, according to the PCRA court, on April 7, 2014, Appellant

filed a pro se "Petition for Extension of Time to File Objections" to the court’s

Dismissal Notice, seeking more time than the 20 days granted by Criminal

Rule 907. By an order entered on April 15, 2014, the court granted the


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extension and directed Appellant to file his response by June 6, 2014. No

such substantive response was filed.     At that point, pursuant to Criminal

Rule 907, the PCRA court was empowered to dismiss the petition, grant

leave to file an amended petition, or direct that the proceedings continue. It

is unclear from the docket what happened next, but it appears the petition

was not dismissed at that time.

      A year later, on June 15, 2015, Appellant, without leave of court, filed

a pro se "Amendment to Post-Conviction Relief Act Petition." In that filing,

he raised for the first time a challenge to the trial court's imposition of

mandatory minimum sentences under Alleyne v. United States, 133 S. Ct.

2151 (2013) (holding that facts that increase a mandatory minimum

sentence are elements of the offense and must be proven to the jury beyond

a reasonable doubt).

      The PCRA court ultimately dismissed Appellant’s second PCRA petition

for lack of jurisdiction, holding that the petition failed to meet the PCRA’s

jurisdictional filing deadlines.   The court’s September 15, 2015, order

observed that Appellant “has not alleged in his second Petition that he meets

an exception to the time-bar,” but added that Appellant’s June 15, 2015

“amendment” to his second PCRA petition “implicitly” invoked one of the

exceptions by seeking relief under the Alleyne decision. PCRA Court Order,

9/15/15, at 4.     The court interpreted the reference to Alleyne as an




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invocation of the PCRA time bar’s “newly recognized constitutional right”

exception under 42 Pa.C.S. § 9545(b)(1)(iii).

       The PCRA court held that both the July 5, 2013, PCRA petition and the

June 15, 2015, pro se amendment to that petition were untimely, as neither

were filed within 60 days of the date the claims set forth could have been

presented. See 42 Pa.C.S. § 9545(b)(2). PCRA Court Order, 9/15/15, at 4.

The court added that Appellant’s reliance on Alleyne did not trigger the

“new constitutional right” exception to the PCRA’s jurisdictional time bar

because Alleyne had not been held to apply retroactively. Id. at 5. The

court observed that illegal sentence claims under Alleyne are subject to the

same     jurisdictional   limitations   as    other   claims.    Id.   (quoting

Commonwealth v. Seskey, 86 A.3d 237, 241-42 (Pa. Super. 2014)).

       On this appeal, Appellant raises the following issues, as stated:

             1. Whether the PCRA Court erred when it found that
                the second PCRA petition was untimely?

             2. Whether [Commonwealth v. Hopkins, 117 A.3d
                247 (Pa. 2015),] is automatically retroactive to
                collateral review because it is the first
                interpretation by the State’s highest court of the
                constitutionality of criminal statutes authorizing
                the imposition of mandatory sentences on a class
                of criminal defendants?

             3. Whether     the   PCRA    Court  must    exercise
                jurisdiction to vacate a sentence that is illegal,
                unconstitutional, and void?

Appellant’s Brief at 1-2. In a December 10, 2015, Rule 1925 Opinion, the

Court variously referenced both its March 2014 Notice of Intent to Dismiss


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and its September 2015 Order, both of which provided the court’s

substantive explanations for its determinations. PCRA Ct. Op., 12/10/15.

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error.             The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-92 (Pa. Super. 2013) (internal citations omitted).

        As the PCRA court correctly held, the timeliness of a post-conviction

petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013). 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 is final unless the petition alleges, and the petitioner proves,

one of the three statutory exceptions to these time limitations set forth in

Section 9545(b)(1) of the statute.             See 42 Pa.C.S. § 9545(b).1    A PCRA

____________________________________________


1
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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

(Footnote Continued Next Page)


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petition invoking one of these statutory exceptions must “be filed within 60

days of the date the claims could have been presented.”         Hernandez, 79

A.3d at 651-52; see also 42 Pa.C.S. § 9545(b)(2). Any asserted exceptions

to the time limitations must be alleged in the petition to the PCRA court;

they may not be raised for the first time on appeal.        Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007).

      Appellant’s petition did not meet these requirements.        The petition,

filed on July 5, 2013, asserted that his direct appeal counsel was ineffective

for failure to pursue a sentence reduction based on Appellant’s purported

“cooperation” with law enforcement in another crime. But the PCRA court

found that Appellant’s trial-level counsel did raise that issue at sentencing,

and, in addition, that Appellant raised a variation on that same theme in his

first PCRA petition.      In the court’s words, the claims raised in Appellant’s

current petition “are nothing more than a new slant on the Brady claims

decided adversely to Appellant by [the] Superior Court in his first PCRA

appeal.” PCRA Op., 12/10/15, at 11. Generally, a defendant should wait to

raise claims of ineffective assistance of counsel until collateral review,

                       _______________________
(Footnote Continued)

      (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).



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Commonwealth v. Grant, 13 A.2d 726 (Pa. 2002), but Appellant has

pleaded no reason why he could not have raised his claim of ineffective

assistance of direct appeal counsel at the same time as he made his related

arguments in his first PCRA petition regarding sentence reduction for

cooperation with law enforcement. The claim therefore is time-barred and

the PCRA court correctly held that it lacked jurisdiction to hear it.

       To escape this result, Appellant relies on Commonwealth v. Lark,

746 A.2d 585 (Pa. 2000), in which the Supreme Court of Pennsylvania held

that a new PCRA petition may not be filed while an appeal from an earlier

PCRA petition is pending.         Appellant argues that, under Lark, a pending

PCRA petition “’tolls’ the PCRA time clock until appeals have been exhausted,

and the record has been sent back to the trial court.” Appellant’s Br. at 4

(emphasis deleted).

       Appellant claims that his first PCRA petition was filed 54 days before

the PCRA time deadline for filing that petition.2 According to Appellant, Lark

entitles him to make use of those 54 days to file a second PCRA petition in

which he can make any additional PCRA argument that he could have made

when he filed his first petition, so long as he files that second petition within

54 days after the close of appellate proceedings on the first petition. Thus,
____________________________________________


2
       According to Appellant, the judgment became final when this Court
affirmed on February 28, 2010. Under the PCRA, Appellant had one year
within which to file his first PCRA petition, but he instead filed it 54 days
earlier, on January 6, 2011.



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Appellant contends that because he filed his second PCRA petition less than

54 days after appellate proceedings in his first PCRA appeal ended, his

second PCRA petition was timely filed.3

       Neither Lark nor any other decision cited by Appellant supports this

novel argument, and we reject it. In Lark, the petitioner sought to file a

new PCRA petition based on facts that were not known to him and could not

have been discovered prior to or during the time his earlier petition was

pending on appeal. Thus, the new petition was based on the “new evidence”

exception to the PCRA’s time deadlines in Section 9545(b)(1)(ii) of the

statute. The Court in Lark held that any petition raising that new ground for

relief would be premature until the proceedings on the prior petition were

completed, and it therefore tolled the time for filing the new petition until

completion of that earlier proceeding.         But Lark did not hold that a claim

that could have been filed earlier, and was otherwise time-barred under the

statute, could be filed late just because an earlier PCRA petition in which

that claim could have been (but was not) raised remained on appeal.

       Rather than Lark, the controlling precedent here is Commonwealth

v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008), in which the petitioner sought to

bring a new claim that was found untimely because it did not qualify under
____________________________________________


3
      Appellant contends that proceedings on his first PCRA petition ended
on June 6, 2013 (30 days after the May 7, 2013 denial of allocatur by the
Supreme Court). Appellant filed his second petition 29 days later, on July 5,
2013.



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any of the exceptions to the PCRA’s time bar in 42 Pa.C.S. § 9545(b)(1).

Specifically, the subsequent petition in Abu-Jamal did little more than

reiterate the claims in his prior petitions and did not posit truly new evidence

or facts “unknown to the petitioner [that] could not have been ascertained

by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii). Accordingly,

the new petition was time-barred, despite its filing after proceedings on an

earlier petition were completed.

       Here, as in Abu-Jamal, Appellant’s petition does not present new

evidence or facts sufficient to meet any of the exceptions set forth in Section

9545(b)(1). Appellant argues that his June 2015 pro se “amendment” to the

petition4 in which he cited Alleyne was sufficient to meet the timeliness

exception     applicable    to   a   “new      constitutional   rule”   under   Section

9545(b)(1)(iii).    But that exception applies only if “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) (emphasis added). As the PCRA court explained

in its September 15, 2015 order, Alleyne has not been held to be

retroactively applicable to cases where a judgment of sentence has already
____________________________________________


4
  The PCRA court noted that this “amendment” was not filed with leave of
court and was itself untimely. It therefore would be insufficient to meet the
statute’s jurisdictional requirements even if it had raised a valid exception
under Section 9545(b)(1).



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become final. PCRA Order, 9/15/15, at 4 (citing Commonwealth v. Miller,

102 A.3d 988 (Pa. Super. 2014)). Indeed, after the PCRA court issued its

order,   the    Supreme      Court    of    Pennsylvania,     in   Commonwealth         v.

Washington, 2016 WL 3909088 (Pa. July 19, 2016), confirmed that

“Alleyne does not apply retroactively to cases pending on collateral review.”

Id. at *7.

       In his brief, Appellant also relies on Commonwealth v. Hopkins, 117

A.3d 247 (Pa. 2015), which declared Pennsylvania mandatory minimum

sentencing statutes unconstitutional.                But Appellant notes in his brief,

Hopkins “was based on Alleyne,” Appellant’s Br. at 10.                    Like Alleyne,

Hopkins has not been held to apply retroactively, and, in light of Miller and

Washington, Appellant’s invocation of Hopkins therefore does not compel

a different result. Thus, Appellant may not assert a claim based on Alleyne

or Hopkins and may not invoke a new constitutional rule under those

decisions to excuse the untimeliness of his petition.

       The PCRA court thus correctly held that it had no jurisdiction over this

untimely pro se amendment to Appellant’s second PCRA petition and that

this   lack    of   jurisdiction   also    precluded     consideration   of   any   claims

challenging the legality of Appellant’s sentence. Accordingly, the PCRA court

correctly dismissed Appellant’s latest PCRA petition. We therefore affirm the

PCRA court’s order denying Appellant post-conviction relief.

       Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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