J-S07040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

EDWARD GARDNER,

                           Appellant                   No. 817 MDA 2015


              Appeal from the PCRA Order April 14, 2015
          In the Court of Common Pleas of Lancaster County
          Criminal Division at No(s): CP-36-CR-2315-2012
                                      CP-36-CR-2319-2012
                                      CP-36-CR-2323-2012
BEFORE: BOWES, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 11, 2016

        Appellant, Edward Gardner, appeals pro se from the order of the

Lancaster County Court of Common Pleas dismissing his second Post

Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant contends his

July 30, 2013 sentence for possession with intent to deliver a controlled

substance2 is illegal under Alleyne v. United States, 133 S. Ct. 2151

(2013). We affirm.

        The following procedural history is relevant to this appeal. On July 30,

2013, Appellant entered into a negotiated plea agreement. N.T. Sentencing



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    35 P.S. § 780-113(a)(30).
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Hr’g, 7/30/13, at 2.      He was charged on three informations with three

violations of the Controlled Substance Act, specifically delivery of cocaine.

Id. at 3.    He was sentenced to five to ten years’ imprisonment on each

count to run concurrently.3 Id. at 2-3. He did not take a direct appeal.

      On October 14, 2014, Appellant filed a pro se PCRA petition.         On

October 15, 2014, counsel was appointed to represent Appellant.            On

November 21, 2014, counsel filed a motion to withdraw. On December 5,

2014, the PCRA court filed a Pa.R.Crim.P. 907 notice of intent to dismiss the

petition, providing Appellant with twenty days to file a response. Appellant

did not file a response and on January 2, 2015, the court dismissed the

PCRA petition. Appellant did not file a direct appeal.

      On March 27, 2015, pro se Appellant filed his second PCRA petition.

The PCRA court dismissed the petition as untimely on April 14, 2015. This

timely appeal followed.    Appellant filed a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal4 and the PCRA court filed a responsive

opinion.



3
  The sentence included the application of the mandatory minimum sentence
for delivery based upon the weight of the cocaine. See 18 Pa.C.S. § 7508.
4
  Appellant raised the following issues in his Rule 1925(b) statement,
reproduced verbatim:

           1. Did the trial court err and abused its discretion, when
           Petitioner suffers from mental incompetence which
           satisfies the time-bar requirements of 42 Pa.C.S.A. §
           9545(b)(1)(ii)?
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      Appellant raises the following issues, reproduced verbatim, for our

review:

          1.(a) Being that the Pennsylvania Constitution Article 1
          Section § 11 states one has a right to be heard did the
          Trial Court err in waiving Appellant’s PCRA without a
          hearing?

          (b) Being that a trial court never relinquish their
          jurisdiction to correct an illegal sentence, did the trial court
          err    in   not    correcting    [A]ppellant’s    now     illegal
          unconstitutional mandatory minimum sentence?

Appellant’s Brief at 6.5




          2. Did the trial court err and abused its discretion by
          denying Petitioner’s PCRA, because Alleyne is a
          retroactive case and applies to Petitioner as a substantive
          rule?

Appellant’s 1925(b) Concise Statement of Matters complained of, 5/7/15, at
1-2. Appellant did not raise issue number one in his brief and therefore it is
abandoned on appeal. See Commonwealth v. Dunphy, 20 A.3d 1215,
1218 n.2 (Pa. Super. 2011) (holding claims raised in Rule 1925(b) statement
but not identified in statement of questions presented or developed in
argument section of brief abandoned on appeal).
5
   We note Appellant “contends that Trial Courts never relinquish their
jurisdiction to correct an illegal sentence.” Appellant’s Brief at 9. However,
Appellant contradicts this averment in his brief and states “[a] challenge to
the legality of the sentence may be raised as a matter of right, is non-
waivable, and may be entertained so long as the reviewing Court has
jurisdiction.” Id. at 14-15. Appellant acknowledges that “Pennsylvania law
makes clear that when ‘a PCRA petition is untimely, neither this Court nor
the trial Court has jurisdiction over the petition.’ Commonwealth v.
Seskey, 86 A.3d 237, 241 (Pa. Super. 2014).” Id. at 18. Appellant again
cites Sesky for that proposition. Id. at 19. He states that “[a] challenge to
the legality of a sentence may be entertained as long as the reviewing Court
has jurisdiction.” Id. at 20.

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          When analyzing the dismissal of a PCRA petition, “an appellate court’s

scope of review is limited by the PCRA’s parameters; since most PCRA

appeals involve mixed questions of fact and law, the standard of review is

whether the PCRA court’s findings are supported by the record and free of

legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).

          As a prefatory matter, we consider whether the instant PCRA petition

is timely.     The timeliness of a PCRA petition is a threshold question that

implicates the jurisdiction of a court to consider the merits of the relief

requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).

Although a legality of sentence claim cannot be “waived,” the claim must be

presented in a timely PCRA petition to obtain post-conviction collateral

relief.     Seskey, 86 A.3d at 241.         “The PCRA’s time restrictions are

jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this

Court nor the trial court has jurisdiction over the petition.              Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Id.

                   We . . . turn to the time limits imposed by the PCRA,
            as they implicate our jurisdiction to address any and all of
            [an a]ppellant’s claims. To be timely, a PCRA petition
            must be filed within one year of the date that the
            petitioner’s judgment of sentence became final, unless the
            petition alleges and the petitioner proves one or more of
            the following statutory exceptions:

               (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


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                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).

              We emphasize that it is the petitioner who bears the
           burden to allege and prove that one of the timeliness
           exceptions applies. In addition, a petition invoking any of
           the timeliness exceptions must be filed within 60 days of
           the date the claim first could have been presented. 42
           Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
           day requirement of Section 9545(b) if he or she fails to
           explain why, with the exercise of due diligence, the claim
           could not have been filed earlier.

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some

citations omitted).

         “[A]n 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]   are   met.”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014). Our Supreme

Court has stated:

           This Court has repeatedly stated that the PCRA timeliness
           requirements are jurisdictional in nature and, accordingly,
           a PCRA court cannot hear untimely PCRA petitions. In
           addition, we have noted that the PCRA confers no
           authority upon this Court to fashion ad hoc equitable

                                           -5-
J-S07040-16


         exceptions to the PCRA time-bar in addition to those
         exceptions expressly delineated in the Act. We have also
         recognized     that    the PCRA’s    time  restriction is
         constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

      Finally, we note:

         A PCRA hearing is not a matter of right, and the PCRA
         court may decline to hold a hearing if there is no genuine
         issue concerning any material fact and the defendant is not
         entitled to relief as a matter of law.

Commonwealth v. Morrison, 878 A.2d 102, 109 (Pa. Super. 2005) (en

banc).

      Appellant was sentenced on July 30, 2013. He did not take a direct

appeal, and thus his judgment of sentence became final thirty days

thereafter, on August 29, 2013.      See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.

903(a). Appellant then generally had one year to file a PCRA petition. See

42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one

year of date judgment becomes final).        Because Appellant filed his PCRA

petition on March 27, 2015, it is petition is patently untimely.

      Therefore, we review whether his petition alleges and proves a

timeliness exception.     See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Marshall, 947

A.2d at 719-20; Lawson, 90 A.3d at 5.          Appellant avers his sentence is

unconstitutional based upon Alleyne.        Appellant’s Brief at 11.   He claims

that “the ‘new rule’ of law established by Alleyne directly applies to [his]


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claim of an illegal sentence . . . .” Id.   Alleyne was decided on June 17,

2013.    The instant PCRA petition was filed on March 27, 2015.    Appellant

failed to meet the timeliness requirement of 42 Pa.C.S. § 9545(b)(2).

        Appellant did not plead and prove any exception to the PCRA’s

timeliness requirement.   See Marshall, 947 A.2d at 719-20; Lawson, 90

A.3d at 5.    The PCRA court did not err in dismissing his PCRA petition as

untimely.    See Pitts, 981 A.2d at 878; Marshall, 947 A.2d at 719-20.

Thus, the court lacked jurisdiction to consider the legality of Appellant’s

sentence. See Davis, 86 A.3d at 887; Seskey, 86 A.3d at 241.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/2016




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