J-S31037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOHN W. HINTON                            :
                                           :
                    Appellant              :    No. 1686 WDA 2018

           Appeal from the PCRA Order Entered October 30, 2018
   In the Court of Common Pleas of Somerset County Criminal Division at
                     No(s): CP-56-CR-0000661-2011


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED SEPTEMBER 24, 2019

      John W. Hinton appeals from the dismissal as untimely of his petition

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Hinton maintains that while his petition is facially untimely, he has satisfied at

least two of the time-bar exceptions of the PCRA. We affirm.

      The PCRA court aptly summarized the facts and procedural history of

this case as follows:

      On February 9, 2012, [Hinton] pleaded guilty to three counts of
      aggravated indecent assault of a child, 18 Pa.C.S.A. § 3125(b).
      [Hinton] sexually assaulted three children who were in his care
      and custody between May 2010 and July 2011. At the time of
      incidents, the victims were 4, 5, and 8 years of age. [Hinton] was
      sentenced on June 14, 2012, to inter alia, 10 to 20 years’
      incarceration in a State Correctional Institution for each of the
      three counts to which [Hinton] pleaded guilty. This [c]ourt ordered
      that [Hinton’s] sentences be served consecutively to one another,
      thereby creating an aggregate sentence of 30 to 60 years’
      incarceration in a State Correctional Institution.
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       [Hinton] did not file a post-sentence motion or direct appeal.

PCRA Ct. Op., filed 3/8/19, at 1. Hinton filed the instant petition on July 17,

2018, seeking relief under Alleyne v. United States, 133 S.Ct. 2151 (2013).

The court appointed counsel who filed a Turner/Finley letter and a motion

to withdraw as counsel.1 The court granted counsel’s motion and held a

Grazier hearing.2 The court then denied Hinton’s petition as untimely, and

also concluded that even if it were timely, Hinton would not be due relief under

Alleyne. This timely appeal followed.

       Hinton raises the following issues:

       1. Did the P.C.R.A. Court err in denying the Post Conviction Relief
          Act petition without a hearing by misapprehending the
          retrospective application in Commonwealth v. Hopkins, 117
          A.3d 247 ([Pa.] 2015)[,] when it’s [sic] paradigm, Alleyne v.
          United States, 133 S.Ct. 2151 (2013)[,] created a
          “substantive rule,” which “the Constitution requires State
          Collateral Review Courts to give retroactive effect to that rule?”

       2. Did the P.C.R.A. Court err in denying the Post Conviction Relief
          Act Petition without a hearing when Mr. Hinton filed the instant
          Post Conviction Relief Act Petition timely by filing within sixty
          (60) days of learning of the Supreme Court of Pennsylvania’s
          decision in Commonwealth v. Hopkins, 117 A.3d 247 ([Pa.]
          2015)?

       3. Did the P.C.R.A. Court err in denying the Post Conviction Relief
          Act Petition without a hearing when Mr. Hinton contends that
          through the Court’s inherent power, the P.C.R.A. Court always
          retains jurisdiction to correct his patently unconstitutional, and
          therefore illegal sentence?

____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Hinton’s Br. at 4 (proposed answered omitted).

       When reviewing the denial of PCRA relief, “[w]e must determine whether

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

Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super. 2018) (citations

omitted). We conclude the PCRA court properly dismissed Hinton’s PCRA

petition as untimely.

       A court lacks jurisdiction to address the merits of a PCRA petition filed

more than one year after the judgment of sentence becomes final unless the

petitioner pleads and proves at least one of three time-bar exceptions.

Commonwealth v. Pursell, 749 A.2d 911, 913-14 (Pa. 2000). “[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.”

Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (quoting 42

Pa.C.S.A. § 9545(b)(3)).

       Hinton’s judgment of sentence became final on July 16, 2012, when the

time to file a direct appeal with this Court expired.3 See Pa.R.A.P. 1113(a).

Thus, he had until July 16, 2013, to file a timely petition. The instant petition,

which Hinton filed five years after the deadline, is patently untimely and the
____________________________________________


3 The 30th day after sentencing was a Saturday. Therefore, Hinton had until
the following Monday to file a timely appeal. See Pa.R.A.P. 107 (making
Chapter 19 of Title 1 of Pennsylvania Consolidated Statutes applicable to the
Rules of Appellate Procedure); 1 Pa.C.S.A. § 1908 (“Whenever the last day of
any such period shall fall on Saturday or Sunday, . . . such day shall be omitted
from the computation”).

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PCRA court lacked jurisdiction to consider the petition unless Hinton pleaded

and proved at least one of the time-bar exceptions. See Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Hinton claims that he qualifies for two exceptions. First, Hinton contends

that he pleaded and proved the newly-recognized constitutional right

exception. See Hinton’s Br. at 9; see also 42 Pa.C.S.A. § 9545(b)(1)(iii). This

exception applies where either the United States Supreme Court or the

Pennsylvania Supreme Court has held that a newly-recognized constitutional

right applies retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(iii).

      Hinton maintains that “[he] must be afforded the constitutional right of

retroactive application of Alleyne, due to fact that the ‘new rule’ announced

is a ‘substantive rule,’ and therefore applies retroactively to cases on collateral

review.” Hinton’s Br. at 14. This claim fails as neither the United States

Supreme Court nor the Pennsylvania Supreme Court has held that Alleyne

applies retroactively. Indeed, our Supreme Court held just the opposite – that

Alleyne does not apply retroactively to cases on collateral review.

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Thus, the

newly-recognized constitutional right exception offers Hinton no relief.

      Second, Hinton claims that he has satisfied the newly-discovered fact

exception. This exception requires the petitioner to plead and prove that the

facts supporting the merits claim were unknown to the petitioner and the

petitioner could not have ascertained them with due diligence. 42 Pa.C.S.A. §

9545(b)(1)(ii). Hinton maintains that he “raises the ‘newly discovered fact’ of

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his sentence becoming illegal in light of the Supreme Court of Pennsylvania’s

decision in Commonwealth v. Hopkins, 117 A.3d 247 ([Pa. 2015]).”

Hinton’s Br. at 15.

      This argument also warrants no relief, for several reasons. First, court

decisions do not constitute “facts” for purposes of the newly-discovered fact

exception. See Commonwealth v. Kretchmar, 189 A.3d 459, 467

(Pa.Super. 2018) (stating judicial decisions do not constitute new facts under

Section 9545(b)(1)(ii)). Moreover, Hopkins has no application to Hinton’s

case. That case held a mandatory sentencing provision for delivering or

possessing a controlled substance in a drug free school zone, 18 Pa.C.S.A. §

6317, unconstitutional under Alleyne. See Hopkins, 117 A.3d at 258.

However, Hinton was not sentenced under Section 6317. The PCRA court did

not err in denying Hinton’s untimely PCRA petition. See Washington, 142

A.3d at 820.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2019




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