J-S39036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
MAURICE JERMAINE HAGWOOD,                 :
                                          :
                  Appellant               :           No. 199 EDA 2015

           Appeal from the Order entered on December 10, 2014
           in the Court of Common Pleas of Montgomery County,
               Criminal Division, No. CP-46-CR-0003130-2006

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JULY 07, 2015

      Maurice Jermaine Hagwood (“Hagwood”) appeals from the Order

dismissing his Petition for habeas corpus ad subjiciendum (“Petition”).1 We

affirm.

      In 2007, a jury convicted Hagwood on counts of possession with intent

to deliver, possession of a controlled substance for personal use, persons not

1
  It is well-settled that any petition filed after the judgment of sentence
becomes final will be treated as a petition filed pursuant to the Post
Conviction    Relief   Act   (“PCRA”),     42    Pa.C.S.A.    §§   9541-9546.
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). Further,
the PCRA subsumes the remedy of habeas corpus where the PCRA provides
a remedy for the claim. See Commonwealth v. Turner, 80 A.3d 754, 770
(Pa. 2013); 42 Pa.C.S.A. § 9542 (providing that “[t]he action established in
this subchapter shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exists when this subchapter takes effect, including habeas
corpus.”). In his Petition, Hagwood challenges the legality of his sentence
and ineffective assistance of counsel. Because Hagwood filed his Petition
after his judgment of sentence became final, and the PCRA provides a
remedy for his claims, the Petition is properly treated as a PCRA Petition.
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to possess a firearm, and firearms not to be carried without a license.2 The

trial court sentenced Hagwood to an aggregate prison term of ten years and

fifteen days to twenty years and thirty days.       This Court affirmed the

judgment of sentence, after which the Pennsylvania Supreme Court denied

the allowance of appeal.    See Commonwealth v. Hagwood, 976 A.2d

1203 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 990

A.2d 728 (Pa. 2010).

      In February 2011, Hagwood filed his first PCRA Petition which the

PCRA court denied. This Court affirmed the PCRA court’s denial.          See

Commonwealth v. Hagwood, 55 A.3d 148 (Pa. Super. 2012) (unpublished

memorandum).

      In 2012, Hagwood filed a Motion for reconsideration/reduction of

sentence, which the PCRA court treated as Hagwood’s second PCRA Petition.

The PCRA court denied the Petition.

      Hagwood filed the instant Petition in October 2014. The PCRA court

addressed the Petition under the PCRA, and dismissed the Petition as

untimely.

      Our standard of review regarding a PCRA court’s dismissal of a PCRA

petition is whether the PCRA court’s decision is supported by the evidence of

record and is free of legal error. Commonwealth v. Garcia, 23 A.3d 1059,

1061 (Pa. Super. 2011).

2
  The jury initially deadlocked on the firearms charges. As a result, a second
jury trial was held, after which Hagwood was found guilty.


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      Initially, we observe that all PCRA petitions, including second or

subsequent petitions, must be filed within one year of the defendant’s

judgment of sentence becoming final.          42 Pa.C.S.A. § 9545(b)(1).       “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

review.”    Id. § 9545(b)(3).       The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.           Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      In this case, Hagwood’s judgment of sentence became final on May 26,

2010, after the time to seek review with the United States Supreme Court

had expired. See Sup. Ct. R. 13 (allowing ninety days to petition for a writ

of certiorari). Accordingly, Hagwood had until May 26, 2011, to file a timely

PCRA petition.    Thus, Hagwood’s October 2014 Petition is facially untimely

under the PCRA.

      However, Pennsylvania courts may consider an untimely petition

where the defendant can explicitly plead and prove one of three exceptions

set forth in the PCRA as follows:

      (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;



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        (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.A. § 9545(b)(1). Additionally, any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

        Here, Hagwood invokes the newly recognized constitutional right

exception, under section 9545(b)(1)(iii). Brief for Appellant at 9. Hagwood

argues that the United States Supreme Court’s decision in Alleyne v.

United States, 133 S. Ct. 2151 (2013), rendered his sentence illegal. Brief

for Appellant at 14. The Alleyne Court held that any fact that increases the

mandatory minimum sentence for a crime is an element that must be

submitted to the jury and found beyond a reasonable doubt. Alleyne, 133

S. Ct. at 2155, 2163.

        Here, Hagwood failed to file his Petition within 60 days of the date on

which      the   Supreme   Court   issued   the   Alleyne    decision.     See

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (stating

that to fulfill the 60-day requirement, defendants need to file their petitions

within 60 days from the date of the court’s decision). Moreover, Alleyne is

not retroactive to cases where the judgment of sentence was final.         See



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Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating

that neither the Pennsylvania Supreme Court nor the United States Supreme

Court has held that Alleyne is to be applied retroactively to cases in which

the judgment of sentence has become final); see also id. (stating that while

Alleyne raises a legality of sentence challenge, courts cannot review a

legality claim where it does not have jurisdiction). Thus, Hagwood’s Petition

fails to satisfy the statutory exception at section § 9545(b)(1)(iii).3

      Hagwood also argues that his Petition was timely since the United

States Supreme Court published Alleyne during the pendency of his federal

habeas corpus Petition. However, this assertion does not trigger any of the

statutory exceptions to the PCRA timeliness requirements.           Additionally,

Hagwood’s claims regarding ineffective assistance of counsel do not

implicate any timeliness exceptions.     See Commonwealth v. Breakiron,

781 A.2d 94, 97 (Pa. 2001). Accordingly, the PCRA court properly dismissed

the Petition.

      Order affirmed.




3
   Hagwood asserts he is entitled to relief under Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa. Super. 2014), Commonwealth v. Munday,
78 A.3d 661, 666 (Pa. Super. 2013), and Commonwealth v. Whatley, 81
A.3d 108, 116 (Pa. Super. 2013). Brief for Appellant at 14-16. However,
these decisions were not decided by the Pennsylvania Supreme Court or the
United States Supreme Court, and did not announce a new constitutional
right that applies retroactively as required by section § 9545(b)(1)(iii).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2015




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