J-S34029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ZANE COLBERT

                            Appellant                   No. 1518 MDA 2014


                  Appeal from the PCRA Order August 7, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002357-1992
                            CP-22-CR-0002358-1992


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                    FILED JUNE 30, 2015

        Zane Colbert appeals pro se from the order entered August 7, 2014, in

the Court of Common Pleas of Dauphin County that dismissed his petition

filed pursuant to the Post Conviction Relief Act (PCRA) 1. Colbert claims the

PCRA court erred by dismissing his PCRA petition as untimely filed. Based

upon the following, we affirm.

        The PCRA court set forth the relevant procedural history in its opinion.

               In May 1992, Colbert was arrested and charged with two
        counts of Rape and Involuntary Deviate Sexual Intercourse. A
        jury trial was held which resulted in a guilty verdict on all counts.
        On May 16, 1994, Colbert was sentenced to an aggregate term
        of incarceration of not less than thirty-two (32) nor more than
        sixty four (64) years in a state correctional facility.          The
        Pennsylvania Superior Court affirmed his convictions and on July
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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     21, 1995, a petition for allowance of appeal was denied by the
     Pennsylvania Supreme Court.

           On April 3, 1996, [Colbert] filed his first PCRA Petition for
     which he was appointed counsel.           After counsel filed a
     supplemental Petition on December 18, 1996, this Court
     dismissed Colbert’s Petition without an evidentiary hearing on
     April 11, 1997. The PCRA Court’s dismissal was affirmed by the
     Pennsylvania Superior Court and the Pennsylvania Supreme
     Court denied [Colbert’s] petition for allowance of appeal on
     August 24, 1999.

            Since that time, [Colbert] has filed multiple pro se PCRA
     petitions none of which were granted.4 The instant PCRA, filed
     on June 23, 2014, is [Colbert’s] fifth PCRA Petition. On August
     5, 2014, the Commonwealth filed an Answer to Colbert’s
     Petition. This Court dismissed [Colbert’s] Petition without a
     hearing on August [7], 2014. On September 10, 2014, [Colbert]
     filed a Notice of Appeal with the Pennsylvania Superior Court.5
     _____________________
        4
           PCRA filed on 8/15/00 - denied and dismissed as
        untimely on 8/17/00.     Affirmed by Superior Court on
        9/9/02. PCRA file[d] on 5/7/03 - denied and dismissed as
        untimely on 6/2/03. PCRA filed on 12/26/07 - denied and
        dismissed as untimely on 3/24/08.
        5
         This Court notes that [Colbert] failed to serve the Notice
        of Appeal on the judge of the trial court as required by
        Pa.R.A.P. 906(a)(2).

PCRA Court Opinion, 12/02/2014, at 1-2 (some footnotes omitted).

     Our standard of review is as follows:

     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 decision is free of legal error. The
     PCRA court’s findings will not be disturbed unless there is no
     support for the findings in the certified record.

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

omitted).


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      It is undisputed that 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); Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013) (citation omitted).      This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of a petition. Hernandez, supra, 79 A.3d at 651.

      Generally, a PCRA petition must be filed within one year from the
      date a judgement becomes final. 42 Pa.C.S.A. § 9545(b)(1).
      There are three exceptions to this time requirement: (1)
      interference by government officials in the presentation of the
      claim; (2) newly discovered facts; and (3) an after-recognized
      constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i-iii). When a
      petitioner alleges and proves that one of these exceptions is
      met, the petition will be considered timely.                 See
      Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d
      780, 783 (Pa. 2000). A PCRA petition invoking one of these
      exceptions must “be filed within 60 days of the date the claims
      could have been presented.” Id. (quoting 42 Pa.C.S.A. §
      9545(b)(2)).     The timeliness requirement of the PCRA are
      jurisdictional in nature and, accordingly, a PCRA court cannot
      hear untimely petitions. Commonwealth v. Robinson, 575 Pa.
      500, 837 A.2d 1157, 1161 (Pa. 2003).

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa. Super. 2012).

      Colbert does not dispute that his present PCRA petition is facially

untimely. He claims, however, that his petition falls within two exceptions to

the PCRA’s time bar, namely, the newly discovered facts exception and the




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after-recognized      constitutional     right   exception.2   In   pleading   both

exceptions, Colbert relies on the United States Supreme Court’s decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013).3                   We conclude,

however, no relief is due.


____________________________________________


2
  The relevant exceptions to the PCRA time bar are set forth in Section
9545(b)(1)(i)-(iii), as follows:

       (b) Time for filing petition

       (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:

          ****

          (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 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. § 9545(b)(1)(i)-(iii), (b)(2) (emphasis supplied).

3
  Colbert additionally relies on Commonwealth v. Hopkins (2015), in
which Colbert claims, the Pennsylvania Supreme Court held that Alleyne
applies retroactively to PCRA petitioners. Colbert’s PCRA Petition, 2/6/2014,
at 7. Colbert provides no citation to this decision. If Colbert is referring to
Commonwealth v. Hopkins, ___ A.3d ___ [98 MAP 2013] (Pa. June 15,
(Footnote Continued Next Page)


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      In Alleyne v. United States, 133 U.S. 2151 (2013), the United

States Supreme Court held “[a]ny fact that, by law, increases the penalty for

a crime is an ‘element’ that must be submitted to the jury and found beyond

a reasonable doubt.”        Id. at 2155. Applying this mandate, this Court has

held that Alleyne renders unconstitutional mandatory minimum sentencing

statutes that permit the trial court to increase a defendant’s minimum based

upon a preponderance of the evidence standard. See Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (finding 42 Pa.C.S. §

9712.1 unconstitutional).

      Here, after a jury convicted Colbert of two counts of rape and

involuntary deviate sexual intercourse, the trial court sentenced him to an

aggregate term of 32 to 64 years’ incarceration. Colbert claims the “fact of

whether or not [Colbert] actually had a gun should of [sic] been found by a

jury and not by a preponderance of evidence by trial Judge.” Colbert’s brief,

at 8. He alleges that his “sentence is unconstitutional and illegal.” Id.

      Colbert’s petition does not satisfy either of the PCRA exceptions for

newly discovered facts or an after-recognized constitutional right.         “Our

Courts have expressly rejected the notion that judicial decisions can be

considered newly-discovered facts which would invoke the protections

                       _______________________
(Footnote Continued)

2015), which was decided while Colbert’s appeal was pending before this
Court, we note that this decision does not address the issue of retroactive
application of Alleyne to a PCRA petition.



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afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d

759, 763 (Pa. Super. 2013) (citation omitted).              Therefore, Alleyne, a

judicial decision, is not a “fact” that satisfies Section 9545(b)(1)(ii).


       As the PCRA court correctly pointed out, a PCRA petitioner may not

rely upon the decision of the Supreme Court in Alleyne to avail himself of

the   exception     to   the   time    requirements   of   the   PCRA   codified   at

§ 9545(b)(1)(iii).       See PCRA Court Opinion, 12/2/2014, at 5, citing

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

panel of this Court concluded that Alleyne was an extension of the line of

cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), and

further:

       Even assuming that Alleyne did announce a new constitutional
       right, neither our 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 had
       become final. This is fatal to Appellant’s argument regarding the
       PCRA time-bar. 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 in those
       cases.    Therefore, Appellant has failed to satisfy the new
       constitutional right exception to the time bar.

Miller, 102 A.3d at 995 (citations omitted) (footnote omitted).4
____________________________________________


4
  In any event, it appears Colbert was sentenced pursuant to a deadly
weapon enhancement, not mandatory minimum.        See 204 Pa. Code
§ 303.10(a)(3)(i)-(ix). In deadly weapon enhancement cases, this Court
has held Alleyne has no application.

(Footnote Continued Next Page)


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      Because Colbert’s PCRA petition is time-barred, and he is unable to

demonstrate the applicability of a statutory exception to the timing

requirements of the Post Conviction Relief Act, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2015




                       _______________________
(Footnote Continued)

      The sentencing enhancements only direct a sentencing court to
      consider a different range of potential minimum sentences, while
      preserving a trial court’s discretion to fashion an individual
      sentence…. The enhancements do not bind a trial court to any
      particular sentencing floor, nor do they compel a trial court in
      any given case to impose a sentence higher than the court
      believes is warranted. They require only that a court consider a
      higher range of possible minimum sentences…. Thus, Alleyne
      has no application to the enhancements.

Commonwealth v. Ali, 112 A.3d 1210, 1225-1226 (Pa. Super. 2015).




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