J-S77021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JUBAN L. DURHAM,

                            Appellant                  No. 391 MDA 2016


               Appeal from the PCRA Order of January 27, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002221-2012


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J:                         FILED DECEMBER 13, 2016

        Appellant, Juban L. Durham, appeals pro se from the order entered on

January 27, 2016, which dismissed his first petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On July 9, 2013, Appellant pleaded guilty at docket number CP-22-CR-

0002221-2012, to possession of a controlled substance with intent to deliver

(“PWID”) and possession of drug paraphernalia.1        That day, the trial court

sentenced Appellant to serve a term of four to ten years in prison for his

PWID conviction. Appellant did not file a notice of appeal from his judgment

of sentence.



____________________________________________


1
    35 P.S. § 780-113(a)(30) and (32), respectively.



*Retired Senior Judge assigned to the Superior Court.
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       On April 22, 2015 – or, almost two years after Appellant was

sentenced – Appellant filed a pro se PCRA petition.       Within this petition,

Appellant claimed that his sentence was illegal, as he was sentenced under a

mandatory minimum sentencing statute that was rendered unconstitutional

by Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013).2



____________________________________________


2
   Appellant claimed that he was sentenced              under    18   Pa.C.S.A.
§ 7508(a)(3)(ii), which states in relevant part:

         A person who is convicted of violating section [35 P.S.
         § 780-113(a)(30)] . . . where the controlled substance is
         coca leaves . . . shall, upon conviction, be sentenced to a
         mandatory minimum term of imprisonment and a fine as set
         forth in this subsection:

                                           ...

              (ii) when the aggregate weight of the compound or
              mixture containing the substance involved is at least ten
              grams and less than 100 grams; three years in prison
              and a fine of $15,000 or such larger amount as is
              sufficient to exhaust the assets utilized in and the
              proceeds from the illegal activity. . . .

18 Pa.C.S.A. § 7508(a)(3)(ii).

There is no evidence that the Commonwealth provided Appellant with pre-
sentencing notice that it intended to proceed under the mandatory minimum
sentencing statute.      See 18 Pa.C.S.A. § 7508(b).       Further, during
sentencing, the Commonwealth explicitly declared that it was “waiving any
mandatories” and the trial court never stated that it was imposing a
mandatory minimum sentence. N.T. Sentencing Hearing, 7/9/13, at 4-5.
Nevertheless, Appellant’s Sentencing Guideline Form states that Appellant
received   a    mandatory     minimum     sentence   under  18    Pa.C.S.A.
§ 7508(a)(3)(ii). See Sentencing Guideline Form at 1.



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      Since this was Appellant’s first PCRA petition, the PCRA court

appointed counsel to represent Appellant.    However, on August 31, 2015,

appointed counsel filed a petition to withdraw pursuant to Commonwealth

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

A.2d 213 (Pa. Super. 1988) (en banc).        Appointed counsel argued that

Appellant’s PCRA petition lacked arguable merit, as it was untimely and no

exception to the PCRA’s one-year time-bar applied.          See Petition to

Withdraw, 8/31/15, at 1-2.

      On November 23, 2015, the PCRA court granted counsel’s petition to

withdraw and provided Appellant with notice that it intended to dismiss

Appellant’s PCRA petition in 20 days, without holding a hearing. On January

27, 2016, the PCRA court finally dismissed Appellant’s PCRA petition and

Appellant filed a timely notice of appeal.   We now affirm the dismissal of

Appellant’s untimely PCRA petition.

      “As a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.”    Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014).

      Before this Court can address the substance of Appellant’s claim, we

must determine if this petition is timely.

        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final.    A judgment of sentence becomes final at
        the conclusion of direct review . . . or at the expiration of
        time for seeking review.

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                                      ...

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition,
        set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
        met. A petition invoking one of these exceptions must be
        filed within [60] days of the date the claim could first have
        been presented. In order to be entitled to the exceptions to
        the PCRA’s one-year filing deadline, the petitioner must
        plead and prove specific facts that demonstrate his claim
        was raised within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some

internal citations omitted) (internal quotations omitted).

      In the present case, the PCRA court found Appellant’s petition to be

untimely filed. Trial Court Order, 1/27/16, at 1. We agree.

      Appellant’s judgment of sentence became final on August 9, 2013,

which was 31 days after Appellant was sentenced in open court and the time

for filing a notice of appeal to this Court expired. See Pa.R.A.P. 903(a); 42

Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States . . . , or at the expiration of time for seeking the review”).

The PCRA explicitly requires that a petition be filed “within one year of the

date the judgment becomes final[.]”      42 Pa.C.S. § 9545(b)(1).     As such,

Appellant was required to file his PCRA petition by August 9, 2014. Since

Appellant did not file the current PCRA petition until April 22, 2015,

Appellant’s petition is patently untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

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J-S77021-16


one-year time-bar applied to his case.     See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements

of the relied-upon exception).

     Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

                                     ...

           (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.

                                     ...

        (2) 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.A. § 9545(b).

     As our Supreme Court explained:

        Subsection (iii) of Section 9545(b)(1) has two requirements.
        First, it provides that 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 provided in this section. Second, it provides that
        the right “has been held” by “that court” to apply
        retroactively. Thus, a petitioner must prove that there is a


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J-S77021-16


          “new” constitutional right and that the right “has been held”
          by that court to apply retroactively. The language “has
          been held” is in the past tense. These words mean that the
          action has already occurred, i.e., “that court” has already
          held the new constitutional right to be retroactive to cases
          on collateral review. By employing the past tense in writing
          this provision, the legislature clearly intended that the right
          was already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted). Moreover, since the plain statutory language

of section 9545 demands that the PCRA petition “allege” all elements of the

statutory exception, it is clear that – to properly invoke the “newly

recognized constitutional right” exception – the petitioner must plead each of

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

        Within Appellant’s PCRA petition, Appellant claims that his sentence is

illegal because he was sentenced to a mandatory minimum term of

incarceration under 18 Pa.C.S.A. § 7508 and, in Alleyne, the United States

Supreme Court effectively rendered Section 7508 unconstitutional.

        This claim immediately fails, as Appellant did not raise his Alleyne

claim “within 60 days of the date the claim could have been presented.” 42

Pa.C.S.A. § 9545(b)(2). Rather, the first time Appellant raised his Alleyne

claim was in his April 22, 2015 PCRA Petition – which was almost two years

after the United States Supreme Court decided Alleyne.3          Thus, Appellant
____________________________________________


3
    The United States Supreme Court decided Alleyne on June 17, 2013.




                                           -6-
J-S77021-16



failed to properly plead the newly-recognized constitutional right exception

to the PCRA’s one-year time-bar. See Commonwealth v. Boyd, 923 A.2d

513, 517 (Pa. Super. 2007) (“[w]ith regard to [the newly-]recognized

constitutional right [exception], . . . the [60-]day period begins to run upon

the date of the underlying judicial decision”).

       Since Appellant did not attempt to plead any other exception to the

time-bar, we conclude that Appellant’s petition is time-barred and that our

“courts are without jurisdiction to offer [Appellant] any form of relief.”4

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

Therefore, we affirm the PCRA court’s order dismissing Appellant’s PCRA

petition without a hearing.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016


____________________________________________


4
  To the extent Appellant claims that his illegal sentencing claim is non-
waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[a]lthough 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. Fahy, 737 A.2d 214, 223
(Pa. 1999) (emphasis added).



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