J-S09023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

VIDEL LAMONT LITTLE

                            Appellant                No. 1006 MDA 2015


                    Appeal from the Order March 17, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002212-2012
                            CP-22-CR-0004396-2012


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                      FILED FEBRUARY 05, 2016

        Videl Lamont Little appeals nunc pro tunc from the trial court’s order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA). 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        In June 2013, Little pled guilty under two docket numbers to robbery,1

conspiracy,2 firearms not to be carried without a license, 3 possession of a

firearm by a minor,4 resisting arrest,5 and escape.6 On June 6, 2013, Little

____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 903(c).
3
    18 Pa.C.S. § 6106(a)(1).
4
    18 Pa.C.S. § 6110.1(a).
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was sentenced on the first docket number to concurrent terms of

imprisonment of 5-10 years for the robbery conviction and 5-10 years for

the conspiracy conviction, a consecutive term of 2-4 years in prison on the

firearm without a license charge,7 and a 5-year probationary tail for the

firearm possession conviction.          On the second docket number, Little was

sentenced to 1-2 years’ imprisonment for the firearm without a license

charge to run consecutively to the sentence on the first docket, a concurrent

two-year probationary term for resisting arrest, and a two-year probationary

tail for escape.8       The court imposed mandatory minimum sentences on

Little’s robbery and criminal conspiracy convictions. See 42 Pa.C.S. § 9712

(mandatory sentencing for certain drug offenses when weapon present).

        On June 27, 2013, Little filed an unsuccessful post-sentence motion.

On August 5, 2013, the trial court amended its sentencing order,9 making
                       _______________________
(Footnote Continued)
5
    18 Pa.C.S. § 5104.
6
    18 Pa.C.S. § 5121.
7
  Little’s firearm without a license sentence was ordered to run consecutive
to the robbery sentence on the first docket number.
8
 Little’s firearm’s sentence on the second docket number was ordered to run
consecutively to the robbery sentence on the first docket number.
9
  The new sentence amended Little’s resisting arrest charge on the second
docket number to 1-2 years’ imprisonment, to run consecutively to his
sentence on the first docket number.       It also imposed two years of
supervision for each of Little’s sentences for firearm and escape on the
second docket number, which were ordered to run concurrently to one
another.



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Little’s aggregate sentence 8-16 years in state prison, to be followed by 5

years of supervision.

       On November 14, 2014, Little filed a pro se PCRA petition; the court

appointed PCRA counsel who filed an amended petition on his behalf alleging

that although Little’s petition was untimely filed and he did not meet the 60-

day time limit within which to invoke an exception to the PCRA time bar,10

he raised a non-waivable legality of sentence claim and was entitled to be

resentenced accordingly.           On March 17, 2015, the court issued its

Pa.R.Crim.P. 907 notice of intent to dismiss Little’s untimely petition, and, on

April 13, 2015, dismissed Little’s petition without an evidentiary hearing.

       On June 1, 2015, PCRA counsel filed a second PCRA petition alleging

her own ineffectiveness for failing to file a timely requested appeal from the

denial of Little’s first PCRA petition and seeking restoration of Little’s

appellate rights nunc pro tunc. See Commonwealth v. Lantzy, 736 A.2d

564 (Pa. 1999) (restoration of appeal rights exclusive remedy when counsel

fails to perfect appeal). On June 3, 2015, the trial court reinstated Little’s

appellate rights nunc pro tunc.11 This appeal follows.
____________________________________________


10
   Here, Alleyne v. United States, 133 S.Ct. 2151 (2013), was filed on
June 17, 2013, and Little’s pro se petition was filed almost 17 months later.
11
  Although the order states that Little’s “appellate rights are reinstated nunc
pro tunc,” it is clear that the parties and the court intended it to apply to his
collateral appeal rights, not his direct appeal rights as counsel acknowledged
that Little asked her to file an appeal from the dismissal of his PCRA petition
and that she failed to do so. See PCRA Petition, 6/1/15, at ¶10-11.



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         On appeal, Little presents the following issues for our consideration:

         (1)   Whether the case of Alleyne v. United States, 133 S.Ct.
               2151, 186 L.Ed 2d 314 (2013) can be applied
               retroactively?

         (2)   Whether the appellant is serving an illegal sentence?

         The standard of review of an order denying a PCRA petition is whether

that determination is supported by the evidence of record and 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.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

         Before we address the merits of Little’s claims on appeal, we must

determine whether his PCRA was timely filed. Generally, a petition for PCRA

relief, including a second or subsequent petition, must be filed within one

year of the date the judgment is final. See 42 Pa.C.S. § 9545(b)(3); see

also Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997). There

are, however, exceptions to the time requirement, set forth at 42 Pa.C.S. §

9545(b).       Where the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition is met, the petition will be

considered      timely.    Id.    These   exceptions   include   interference     by

government officials in the presentation of the claim, after-discovered facts

or evidence, and an after-recognized constitutional right.          42 Pa.C.S. §

9545(b)(1)(ii)-(iii). A PCRA petition invoking one of these exceptions must

“be filed within 60 days of the date the claims could have been presented.”



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Id. at (b)(2). The timeliness requirements of the PCRA are jurisdictional in

nature and, accordingly, a PCRA court cannot hear untimely petitions.

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

     Instantly, Little filed his PCRA petition on November 14, 2014. Little’s

judgment of sentence became final for purposes of the PCRA on September

5, 2013, after the time expired for him to file a direct appeal from his

amended sentence.      Accordingly, Little’s petition is facially untimely.

However, we must determine whether Little has pled and proven an

exception to the PCRA time bar.

     Instantly, Little does not allege any section 9545(b)(1) exception.

Rather, his illegal sentence claim is predicated upon the holding of the

United States Supreme Court decision in Alleyne v United States.           In

Alleyne, the Supreme Court held that “facts that increase mandatory

minimum sentences must be submitted to the jury” and must be found

beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. A challenge to a

sentence premised upon Alleyne implicates the legality of the sentence.

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).

Moreover, while 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. See 42 Pa.C.S. § 9543(a)(2)(vii).




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       Despite     the    fact    that    section   9712.1     has   been     declared

unconstitutional,12 Little is not entitled to relief in his untimely PCRA petition.

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

defendant also filed an untimely PCRA petition raising the claim that his

mandatory minimum sentence was illegal. To overcome the untimeliness of

his petition, the defendant unsuccessfully argued that Alleyne announced a

new    constitutional    right   under     the   PCRA   that   applies   retroactively.

Additionally, the Court found meritless the defendant’s allegation that his

illegal sentence claim was not waivable on appeal where “in order for th[e]

Court to review a legality of sentence claim, there must be a basis for [its]

jurisdiction.” Id. at 995. Finally, the Court held that Alleyne is not to be

applied retroactively to cases in which the judgment of sentence had become

final. Id.

       Similar to the defendant in Miller, Little raises a legality of sentence

claim predicated on the holding of Alleyne and an unconstitutional

____________________________________________


12
   In Newman, supra, our Court relied on the dictates of Alleyne and
found that the improper sentencing practice under section 9712.1 was not
severable, and, therefore, that the statute is unconstitutional. In Newman,
the defendant had been convicted of various drug offenses and was
sentenced pursuant to the mandatory minimum; defendant’s judgment of
sentence was affirmed on appeal. Five days later the Alleyne decision was
rendered. On en banc reargument, our Court found that Alleyne applied
retroactively to cases still pending on direct appeal when Alleyne was
handed down. Moreover, our Court found that defendant had not waived his
challenge to his mandatory minimum sentence where the claim implicated
the legality of his sentence.



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mandatory minimum statute.            Because Little’s petition is facially untimely,

because he does not allege and prove an exception to the timeliness

requirements of the PCRA, and because Alleyne does not apply retroactively

to cases on collateral review, Miller, supra,13 he is not entitled to relief.

Therefore, the trial court properly concluded that Little’s PCRA petition

should be dismissed. Johnston, supra.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




____________________________________________


13
    Although Alleyne was decided prior to Little’s judgment of sentence
becoming final, he is not entitled to relief because his case is not still
pending on direct review and, most importantly, his petition was untimely
filed, thus divesting the trial court of jurisdiction. Newman, supra; Miller,
supra.




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