J-S54043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOHN CHARLES BENNINGHOFF                   :
                                               :
                      Appellant                :   No. 570 WDA 2017

                  Appeal from the Order Entered March 2, 2017
                 In the Court of Common Pleas of Mercer County
                     Criminal Division at No(s): 175 CR 1998


BEFORE:      OTT, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED OCTOBER 17, 2017

        Appellant, John Charles Benninghoff, appeals pro se from the order

entered in the Mercer County Court of Common Pleas dismissing his second

Post Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant claims

that his petition was timely filed in light of the Pennsylvania Supreme Court’s

decision in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). We affirm.

        For purposes of the instant appeal, the underlying facts and procedural

history of this case need not be reiterated in detail. It is sufficient to note

that in April 1998, Appellant pled guilty to one count of involuntary deviate

sexual intercourse and one count of aggravated indecent assault. On July 9,

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. § § 9541-9546.
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1998, the trial court sentenced Appellant to an aggregate sentence of ten

and a half to thirty years’ imprisonment. Appellant was sentenced above the

mandatory minimum sentence applicable at the time.       Appellant did not file

a direct appeal.

      Pro se Appellant filed the instant PCRA petition, his second, on March

2, 2017. The petition was couched as a motion to correct illegal sentence

wherein Appellant claimed his sentence was unlawful under Alleyne v.

United States, 133 S.Ct. 2151 (2013). The PCRA court denied the petition

without a hearing, and the instant appeal followed. Appellant and the PCRA

court both complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

         1. Did the [c]ourt err in denying Appellant’s PCRA Motion
         to Correct Illegal Sentence, pursuant to the holding in
         Commonwealth v. Washington, 142 A.3d 810 (PA.
         2016)[?]

         II. Whether [j]udgement of [s]entence should be vacated
         and remanded to [t]rial [c]ourt for resentencing[?]

Appellant’s Brief at 2.

      As a prefatory matter, we consider whether the PCRA court had

jurisdiction to entertain the underlying PCRA petition. Appellant argues the

court had jurisdiction to entertain his PCRA petition pursuant to the

Pennsylvania Supreme Court’s decision in Wolfe, which he contends renders




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his sentencing claim free of “ordinary waiver principals [sic].” 2 Appellant’s

Reply Brief at 1. No relief is due.

       On appellate review of a PCRA ruling, “we determine whether the

PCRA court’s ruling is supported by the record and free of legal error.”

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).

          We . . . turn to the time limits imposed by the PCRA, as
          they implicate our jurisdiction to address any and all of
          [a]ppellant’s claims. To be timely, a PCRA petition must
          be filed within one year of the date that the petitioner’s
          judgment of sentence became final, unless the petition
          alleges and the petitioner proves one or more of the
          following statutory exceptions:

              (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.
____________________________________________


2 In Wolfe, the “[a]ppeal was allowed to assess the validity of the Superior
Court’s sua sponte determination that a sentencing statute is facially
unconstitutional under Alleyne v. United States, [ ] 133 S.Ct. 2151, [ ]
(2013).” Wolfe, 140 A.3d at 653. This Court held that the ten year
mandatory minimum sentence for IDSI was facially unconstitutional. Id. at
655. The Pennsylvania Supreme Court affirmed the order of the Superior
Court. Id. at 663.




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        42 Pa.C.S. § 9545(b)(1).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). . . .

Id. at 719-20 (some citations omitted and emphasis added).

     Our Supreme Court

        has repeatedly stated that the PCRA timeliness
        requirements are jurisdictional in nature and, accordingly,
        a PCRA court cannot hear untimely PCRA petitions. In
        addition, we have noted that the PCRA confers no
        authority upon this Court to fashion ad hoc equitable
        exceptions to the PCRA time-bar in addition to those
        exceptions expressly delineated in the Act. We have also
        recognized     that    the PCRA’s    time   restriction  is
        constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

     “This Court has recognized that a new rule of constitutional law is

applied retroactively to cases on collateral review only if the United States

Supreme Court or our Supreme Court specifically holds it to be retroactively

applicable to those cases.” Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014) (citation omitted). In Commonwealth v. Washington,

142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court addressed the

issue of “whether the Supreme Court of the United States’ decision in

Alleyne . . . applies retroactively to attacks upon mandatory minimum


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sentences advanced on collateral review.”     Id. at 811.   The Washington

Court held that “Alleyne does not apply retroactively to cases pending on

collateral review, and that [the a]ppellant’s judgment of sentence, therefore,

is not illegal on account of Alleyne.” Id. at 820.

       In this case, Appellant was sentenced on July 9, 1998. He then had

thirty days to file a notice of appeal. See Pa.R.A.P. 903(a). He did not take

an appeal, and thus his judgment of sentence became final in August of

1998. Appellant then generally had one year to file a PCRA petition. See 42

Pa.C.S. § 9545(b)(1).    The instant petition was filed more than eighteen

years later in March of 2017. Therefore, Appellant’s petition is untimely on

its face, and he must plead and prove the applicability of one of the above-

stated timeliness exceptions to establish the jurisdiction necessary for a

review of his claim.

      Appellant fails to meet this burden. He seemingly attempts to argue

that our Supreme Court’s decision in Wolfe requires both his sentence to be

vacated and exempts his PCRA petition from the PCRA’s time restriction.

However, as discussed above, neither the United States Supreme Court nor

the Pennsylvania Supreme Court has held that Alleyne is to be applied

retroactively to cases pending on collateral review when Alleyne was

decided. See Washington, 142 A.3d at 820. Appellant’s citation to Wolfe

does not establish a timeliness exception; therefore, the PCRA court lacked

jurisdiction. See Robinson, 837 A.2d at 1161. We find the PCRA court’s


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order dismissing Appellant’s petition is supported by the record and free of

legal error.   See Marshall, 947 A.2d at 719.    Accordingly, we affirm the

order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




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