J-S75014-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                    v.

ANTHONY LEWIS STROTHER

                         Appellant                No. 1260 EDA 2016


                 Appeal from the PCRA Order March 4, 2016
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0000971-2013



BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                     FILED NOVEMBER 18, 2016

      Anthony Lewis Strother appeals from the March 4, 2016 order denying

his PCRA petition as untimely. We affirm.

      Appellant pled guilty to rape of an unconscious victim and sexual

assault on October 2, 2013, and was sentenced to six to twenty years

incarceration.   The facts giving rise to the charges are gleaned from the

affidavit of probable cause of Detective Kevin Cornish of the Bensalem

Township Police Department. On December 2, 2011, a female reported to

police that at approximately 6:00 a.m., Appellant penetrated her sexually

while she was sleeping.      When she realized what was happening, she

jumped up, alerted another resident of the apartment of what had occurred,

and went to the hospital.
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        Appellant was originally represented by the public defender’s office,

but due to a conflict of interest, outside counsel was appointed to assume

his defense on July 5, 2013.          Counsel was unsuccessful in dismissing the

charges based on Pa.R.Crim.P. 600.               Thereafter, on October 2, 2013,

following both a written and oral colloquy, Appellant pled guilty and was

sentenced to six to twenty years of imprisonment.1           He also was advised

that he would be required to register as a sex offender under SORNA, 42

Pa.C.S. § 9799, and the court ordered that he undergo a sexually violent

predator (“SVP”) assessment.

        Appellant filed a pro se motion to reconsider the sentence. The Clerk

of Courts forwarded the motion to counsel and notified Appellant that it was

doing so.     Counsel did not file a counseled motion or a direct appeal.

Following a hearing on January 24, 2014, Appellant was determined to be an

SVP.

        Appellant filed the within pro se PCRA petition on December 3, 2015

challenging the legality of his sentence under Alleyne v. United States,

133 S.Ct. 2151 (2013). Stuart Wilder, Esquire, was appointed as counsel.

The Commonwealth filed a motion to dismiss Appellant’s petition as time

barred, since more than one year had elapsed since judgment of sentence

became final and Appellant had not alleged or offered proof of a valid
____________________________________________


1
    The sentences merged on the two offenses.



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statutory exception under 42 Pa.C.S. § 9542(b). On February 2, 2016, the

PCRA court issued Rule 907 notice of its intent to dismiss the petition as

untimely.

      On February 11, 2016, Appellant filed a pro se objection to the

dismissal.   On February 25, 2016, counsel filed a no-merit letter seeking

leave to withdraw as counsel pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) ("Turner/Finley"), addressing the issues Appellant

submitted in his pro se petition. Counsel represented therein that Alleyne

was decided prior to the expiration of the time for Appellant to file a timely

PCRA petition, and thus, he could not plead that it changed the law, citing

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

represented that his review of the record did not reveal any further grounds

for relief due to the untimeliness of the petition. He forwarded a copy of his

no-merit letter and petition to Appellant.    On March 4, 2016, the court

dismissed Appellant’s PCRA petition as untimely and granted counsel’s

request to withdraw.

      Appellant timely filed the within pro se appeal raising one issue for our

review: “Did the trial Court err in not correcting an illegal sentence?”




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Appellant’s brief at iii.     Appellant claims that he was sentenced under a

mandatory minimum statute that is facially unconstitutional.2

       Our "standard of review of the denial of a PCRA petition is limited to

examining      whether      the   evidence       of   record    supports    the    court's

determination      and    whether      its     decision   is   free   of   legal   error."

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before

we may proceed to the merits of Appellant's contentions, however, we must

determine whether Appellant's PCRA petition was timely filed as that issue

implicates our jurisdiction.      Miller, supra. 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).

       Appellant’s judgment of sentence became final on November 1, 2013,

and, he had one year from that date to file a timely PCRA petition, or

November 1, 2014.3 Hence, the instant petition filed on December 3, 2015

____________________________________________


2
  The record does not support Appellant’s contention that he was sentenced
to a mandatory minimum sentence that would be implicated by Alleyne v.
United States, 133 S.Ct. 2151 (2013).
3
   In Commonwealth v. Schrader, 141 A.3d 558 (Pa.Super. 2016), this
Court recently held that judgment of sentence in a case in which defendant
pled guilty and waived a pre-sentence SVP determination does not become a
final and appealable judgment until after the SVP determination is made.
The record herein does not contain a waiver of a pre-sentence SVP
determination. However, even under Schrader, the within petition which
(Footnote Continued Next Page)


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is facially untimely.      We recognize that 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).        The petitioner has the

burden    of   pleading      and    proving      that   an   exception   is   applicable.

Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Appellant has not pled or proved a timeliness exception.                Moreover,

any attempt to rely upon Alleyne as the basis for the newly-recognized

constitutional right exception fails.            Our Supreme Court recently held in
                       _______________________
(Footnote Continued)

was filed on December 3, 2015, is untimely. Appellant was determined to be
an SVP on January 24, 2014, and his judgment of sentence would have
become final thirty days later on February 23, 2014, when he did not file a
direct appeal. Thus, Appellant’s petition filed more than year after February
23, 2015, was untimely.



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Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), that Alleyne

does not apply retroactively to attacks upon mandatory minimum sentences

advanced on collateral review. Finally, Appellant’s contention that an illegal

sentence cannot be waived and is always subject to review was rejected by

our Supreme Court in Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999) (recognizing that although legality of sentence is subject to review

within the PCRA, the claim must first satisfy the PCRA's time limit or one of

the exceptions); see also Commonwealth v. Jackson, 30 A.3d 516

(Pa.Super. 2011).

      Since Appellant’s PCRA petition was untimely filed, and no exception to

the time-bar was pled or proven, we affirm the trial court’s dismissal of

Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




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