J-S31005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERRY HIGGINS,

                            Appellant                No. 1531 MDA 2015


               Appeal from the PCRA Order Entered July 31, 2015
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000201-2011


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 10, 2016

       Appellant, Terry Higgins, appeals pro se from the order denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       A prior panel of this Court summarized the factual and procedural

history of this case as follows:

             On November 23, 2010, Harrisburg Detective Sean Cornick
       obtained a search warrant of Appellant’s residence following a
       controlled narcotics purchase of crack cocaine by a confidential
       informant and additional police surveillance. The following day,
       police executed the warrant and recovered 35.7 grams of
       cocaine, .1462 pounds of marijuana, digital scales, and other
       drug paraphernalia from Appellant’s residence.         Police also
       discovered Appellant’s identification, confirming his residence as
       the address subjected to the search.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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             The Commonwealth charged Appellant with [two counts of
      possession with intent to deliver controlled substances (“PWID”)
      and one count of possession of drug paraphernalia.]            On
      April 14, 2011, Appellant filed a motion to suppress, arguing the
      affidavit of probable cause attached to the application for the
      search warrant was based upon unreliable information from the
      confidential informant. The trial court denied relief by order
      entered on July 8, 2011. On April 18, 2012, the trial court held
      a bench trial and convicted Appellant of two counts of PWID and
      one count of possession of narcotics paraphernalia. On June 26,
      2012, the trial court sentenced Appellant to an aggregate term
      of five to 10 years of imprisonment, followed by six years of
      probation, plus fines and costs. [A] timely appeal followed.

Commonwealth v. Higgins, 1286 MDA 2012, 69 A.3d 1298 (Pa. Super.

filed March 20, 2013) (unpublished memorandum at 1-2).        On March 20,

2013, this Court affirmed Appellant’s judgment of sentence. Id. Appellant

filed a petition for allowance of appeal with the Pennsylvania Supreme Court,

which was denied on September 24, 2013. Commonwealth v. Higgins, 75

A.3d 1281 (Pa. 2013).

      On June 2, 2014, Appellant filed his first PCRA petition.           On

December 12, 2014, the PCRA court provided Appellant with notice of its

intent to dismiss his PCRA petition and entered a final order on January 27,

2015, dismissing Appellant’s PCRA petition.    Appellant did not appeal the

dismissal of the PCRA petition.

      On March 12, 2015, Appellant filed a motion with the court of common

pleas entitled, “Motion To Vacate Illegal Sentence.” The common pleas court




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treated this pleading as a second PCRA petition.1     On July 13, 2015, the

PCRA court provided Appellant notice of its intent to dismiss the petition and

dismissed Appellant’s petition by order entered July 31, 2015.      Appellant

filed his notice of appeal with this Court on August 25, 2015. Both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.

       Appellant presents the following issues for our review, which we

restate here verbatim:

            I.   WAS PETITIONER UNCONSTITUTIONALLY DENEID BY
       A STATE COURT, THE RETROACTIVE RELEIF AND APPLICATION
       OF U.S. SUPREME COURT DECISIONS, “UNITED STATES V.
       ALLEYNE, GREER, JOHNSON, SHAVERS, BOOKER; DENIED THE
       APPLICATION OF MARBURY V. MADISON, TESTA V. KATT; THE
       HARPER RULE PURSUANT TO ARTICLE VI. CLAUSE 2. “THE
       SUPREMACY CLAUSE,” NUNC PRO TUNC?

            II. WHETHER THE STATE COURT BY ITS REFUSAL TO
       APPLY THE DECISIONS ALLEYNE – APPRENDI, VIA THE
       SUPREMACY CLAUSE TO THE APPELLANT’S CASE NUNC PRO
       TUNC, WAS TANTAMOUNT TO A STATE COURT COMMITTING A
       UNCONSTITUTIONAL STRUCTURAL DEFECT?

____________________________________________


1
   The common pleas court properly deemed this motion a PCRA petition
because the motion sought relief cognizable under the PCRA. As we have
explained:

       The PCRA “provides for an action by which persons convicted of
       crimes they did not commit and persons serving illegal sentences
       may obtain collateral relief.” 42 Pa.C.S.A. § 9542. When an
       action is cognizable under the PCRA, the PCRA is the “sole
       means of obtaining collateral relief and encompasses all other
       common law and statutory remedies for the same purpose[.]”
       42 Pa.C.S.A. § 9542.

Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa. Super. 2011).



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            III.   WHETHER APPELLANT’S SENTENCE IS ILLEGAL?

Appellant’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000)). A judgment of sentence “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 the review.”              42 Pa.C.S.

§ 9545(b)(3).




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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. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         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 sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

       Our review of the record reflects that Appellant was sentenced on

June 26, 2012.       Appellant filed a direct appeal, and this Court affirmed

Appellant’s judgment of sentence on March 20, 2013.           Appellant filed a
____________________________________________


2
    The exceptions to the timeliness requirement are:

       (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), (ii), and (iii).




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petition for allowance of appeal which was denied on September 24, 2013.

Appellant did not file a petition for writ of certiorari.

       Accordingly, Appellant’s judgment of sentence became final on

December 23, 2013, when the time for seeking certiorari from the United

States Supreme Court expired.3            See 42 Pa.C.S. § 9545(b)(3) (providing

that “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 the

review.”).    Therefore, Appellant had to file the current PCRA petition by

December 23, 2014, in order for it to be timely. Appellant did not file the

instant PCRA petition, his second, until March 12, 2015. Thus, Appellant’s

instant PCRA petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted.     42 Pa.C.S. § 9545(b)(2).           This is true despite the fact that

Appellant’s petition presents a challenge to the legality of his sentence. See
____________________________________________


3
   Appellant had ninety days from the date of the Pennsylvania Supreme
Court’s decision on direct appeal to file a petition for a writ of certiorari with
the United States Supreme Court. Commonwealth v. Hackett, 956 A.2d
978, 980 n.4 (Pa. 2008); United States Supreme Court Rule 13.



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Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)

(“Although 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.”).

      Although much of his pro se brief is rambling and incoherent, Appellant

appears to be invoking the time-bar exception under section 9545(b)(1)(iii).

Throughout his brief, Appellant maintains that his sentence is illegal and

argues that the “[m]andatory [m]inimum [s]entence, . . . ‘that was lawful at

the time of [s]entencing, that is nonetheless illegal now, and must be

vacated.’”    Appellant’s Brief at 9.   Appellant makes several references

throughout his brief to “Alleyne v. United States, 133 S.Ct. 2151, 2155

(2013)” and “Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).” Id. at 8-

18.   Appellant maintains that “his sentence is illegal and needs to be

corrected pursuant to Apprendi, Alleyne and Newman.” Id. at 8. Appellant

further argues that “Alleyne and its progeny are now to be applicable

retroactively to correct a Unconstitutional Structual Errors, [sic] as now

complained of.    Namely, His Mandatory Minimum/Maximum Sentencing.”

Id.   Thus, Appellant’s argument may be characterized as an attempt to

assert the “new constitutional right” exception to the PCRA time-bar based

on Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United

States, 133 S.Ct. 2151 (2013); and Commonwealth v. Newman, 99 A.3d

86 (Pa. Super. 2014).


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     This Court has explained the rulings and impact of the cases

referenced by Appellant as follows:

     In Alleyne, the Supreme Court held that the constitutional jury
     trial right requires any fact, other than a prior conviction, that
     triggers a mandatory minimum sentence to be proven beyond a
     reasonable doubt before the finder of fact.        Alleyne is an
     application of the Court’s prior pronouncement in Apprendi v.
     New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
     (2000), which ruled that any fact that increases a maximum
     sentence must be found by the factfinder beyond a reasonable
     doubt or admitted by the defendant during his guilty plea. In
     Alleyne, the United States Supreme Court expressly overruled
     Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
     L.Ed.2d 524 (2002), which held that a fact that involves a
     mandatory minimum sentence does not implicate jury trial
     rights.     Alleyne also implicitly abrogated McMillan v.
     Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67
     (1986), which withstood an Apprendi attack in the Harris
     decision.

          In   Commonwealth v. Newman,                99  A.3d   86
     (Pa.Super.2014) (relying upon Commonwealth v. Watley, 81
     A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that
     Alleyne will be applied to cases pending on direct appeal when
     Alleyne was issued.

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)

(emphasis added).

     As stated, Alleyne was decided on June 17, 2013. Alleyne, 133 S.Ct.

at 2151. Appellant’s judgment of sentence was imposed on June 26, 2012,

and became final on December 23, 2013.         Thus, Appellant’s case was

pending on direct appeal when Alleyne was decided.         In fact, because

Appellant’s judgment of sentence was not final until December 23, 2013, he

had until December 23, 2014, to timely file a PCRA petition raising this


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issue.     Although Appellant’s first PCRA petition was timely filed, neither

Appellant in his initial pro se PCRA petition, nor subsequently-appointed

counsel4 raised the Alleyne issue.             Appellant did not raise this issue until

doing so in his instant petition filed March 12, 2015. Because Alleyne was

decided before expiration of Appellant’s direct appeal or collateral review

rights, Appellant cannot now succeed on his claim that this is a newly

recognized constitutional right pursuant to 42 Pa.C.S. § 9545(b)(1)(iii).

Therefore, Appellant’s petition remains time-barred.

         Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.         See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).        Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.                     See

Commonwealth           v.   Bennett,      930      A.2d   1264,   1267    (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).
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4
   We note that counsel was appointed and after seeking and receiving
several continuations to file a supplemental PCRA petition, filed a motion to
withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988)(en banc). Counsel did not raise the Alleyne issue in his
Turner/Finley letter.      The PCRA court granted counsel permission to
withdraw and dismissed Appellant’s first PCRA petition finding that Appellant
was not entitled to collateral relief. Order, 12/12/14, at 1.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




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