J-S33008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

WILLIE MILES

                             Appellant                 No. 843 WDA 2015


                   Appeal from the PCRA Order April 14, 2015
      in the Court of Common Pleas of Allegheny County Criminal Division
                       at No(s): CP-02-CR-0003921-2011

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 17, 2016

        Appellant, Willie Miles, appeals pro se from the order of the Allegheny

County Court of Common Pleas dismissing his second Post Conviction Relief

Act1 (“PCRA”) petition, entitled “Motion to Vacate Illegal Sentence,”2 as



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    We note that

           [t]he PCRA provides:

              The action established in this subchapter shall be the
              sole means of obtaining collateral relief and
              encompasses all other common law and statutory
              remedies for the same purpose that exist when this
              subchapter takes effect, including habeas corpus and
              coram nobis. This subchapter is not intended to limit
              the availability of remedies in the trial court or on
              direct appeal from the judgment of sentence, to
              provide a means for raising issues waived in prior
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untimely. Appellant contends that his February 21, 2012 sentence following

his convictions of possession of a controlled substance with intent to deliver3

(“PWID”), possession of a controlled substance,4 and possession of drug

paraphernalia5 is illegal under Alleyne v. United States, 113 S. Ct. 2151

(2013).6 We affirm.

        Appellant was sentenced on February 21, 2012, to five to ten years’

imprisonment for PWID with no further penalty at the remaining counts. On

February 26, 2013, this Court affirmed the           judgment of sentence.

Commonwealth v. Miles, 446 WDA 2012 (unpublished memorandum) (Pa.



             proceedings or to provide relief from collateral
             consequences of a criminal conviction.

          42 [Pa.C.S.] § 9542. Accordingly, if the PCRA offers a
          remedy for an appellant’s claim, it is the sole avenue of
          relief  and   the    PCRA     time     limitations apply.
          Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
          2013).

Commonwealth v. Wyatt, 115 A.3d 876, 879 (Pa. Super. 2015). 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.” Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa. Super. 2011)
(citing 42 Pa.C.S. § 9542). Therefore, the PCRA court properly treated
Appellant’s “Motion to Vacate Illegal Sentence” as a PCRA petition. See
Wyatt, 115 A.3d at 879; Jackson, 30 A.3d at 518.
3
    35 P.S. § 780-113(a)(30).
4
    35 P.S. § 780-113(a)(16).
5
    35 P.S. § 780-113(a)(32).
6
    We note that Alleyne was decided on June 17, 2013.



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Super. Feb. 26, 2013). On March 26, 2013, Appellant filed a pro se PCRA

petition. Counsel was appointed and filed a motion to withdraw on June 17,

2013. The PCRA court granted the motion to withdraw. On July 24, 2013,

the PCRA petition was denied.       On March 23, 2015, Appellant filed the

instant pro se “Motion to Vacate Illegal Sentence.” On March 27, 2015, the

PCRA court filed a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.

On April 6, 2015, Appellant filed a “Written Response” to the Rule 907

notice.7   On April 14, 2015, the court dismissed the PCRA petition.     This

timely appeal followed.8    Appellant filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.

      Appellant raises the following issues for our review:

           1. Is Appellant’s sentence illegal and unconstitutional
           pursuant to recent decisions declaring 18 Pa.C.S.A. § 7508
           unconstitutional?


7
  We note that the written response was docketed on April 16, 2015.
Appellant’s certificate of service is dated April 6, 2015.
8
  In the instant case, the notice of appeal is docketed as filed on May 21,
2015, beyond the thirty day appeal period from the April 14, 2015, order.
See Pa.R.A.P. 903(a); Commonwealth v. Coolbaugh, 770 A.2d 788, 791
(Pa. Super. 2001) (noting “questions of jurisdiction may be raised sua
sponte”) (citation omitted). However, pro se Appellant is incarcerated. The
notice of appeal is dated by Appellant as having been served on May 12,
2015, and Appellant attached an envelope post-marked May 14, 2015. It is
well settled the “prisoner mailbox rule provides that a pro se prisoner’s
document is deemed filed on the date he delivers it to prison authorities for
mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011)
(citation omitted). Thus, we adopt May 12, 2015 as the date of filing and
conclude the present appeal is timely. See id. at 40.




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            2. Since Appellant’s sentence is unconstitutional is
            Appellant entitled to resentencing in that his sentence is
            illegal?

Appellant’s Brief at 4.

      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)

(citation omitted).

      Before examining the merits of Appellant’s claims, we consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition.    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).

            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
               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




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            (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)

(footnote omitted).

      Appellant was sentenced on February 21, 2012. This Court affirmed

his judgment of sentence on February 26, 2013.         Appellant did not seek

discretionary review in the Supreme Court of Pennsylvania.            Thus, his

judgment of sentence became final on March 28, 2013. See 42 Pa.C.S. §

9545(b)(3) (providing “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



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for seeking the review[ ]”). Appellant generally had until March 28, 2014, to

file his PCRA petition.   See 42 Pa.C.S. § 9545(b)(1).   Therefore, because

Appellant filed the instant PCRA petition on March 23, 2015,9 his petition is

untimely.10

      Appellant avers that he is serving an illegal sentence pursuant to

Alleyne,11 and therefore his sentence should be vacated. Appellant’s Brief

at 8, 11. He contends his mandatory minimum sentence is unconstitutional

under Alleyne. Id. at 8. We find no relief is due.

      In Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015), this

Court opined:

         [A]n Alleyne claim is a non-waivable challenge to the
         legality of sentence. Such a claim may be raised on direct
         appeal, or in a timely filed PCRA petition. See 42 Pa.C.S.
         § 9542 (“persons serving illegal sentences may obtain
         collateral relief”); Commonwealth v. Hockenberry, [ ]
         689 A.2d 283, 288 [(Pa. Super.] 1997) (“Issues relating to
         the legality of sentence cannot be waived and are
         cognizable under the PCRA”; addressing challenge to

9
   The PCRA court erroneously states that Appellant’s “Motion to Vacate
Illegal Sentence” was filed on December 22, 2014. See PCRA Ct. Op.,
11/3/15, at 2. The “Motion to Vacate Illegal Sentence” was filed with
Appellant’s Application to Proceed In Forma Pauperis on March 23, 2015.
The docket does not indicate any activity in the instant case in 2014.
10
   We note that Appellant does not argue that any of the timeliness
exceptions apply in the instant case. See Marshall, 947 A.2d at 719-20.
11
  The United States Supreme Court in Alleyne held that “[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.” Alleyne, 133 S. Ct. at
2155.




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        imposition of a mandatory minimum under 18 Pa.C.S. §
        7508(a)). Indeed, in [Commonwealth v.] Newman [99
        A.3d 86 (Pa. Super. 2014) (en banc)] the en banc panel
        recognized that Alleyne constituted a “new rule” that
        “applies to all criminal cases still pending on direct
        review.”     Newman, [ ] 99 A.3d at 90 (emphasis
        supplied), quoting Schriro v. Summerlin, [ ] 124 S. Ct.
        2519, [ ] (2004).

Id. at 60 (some emphasis added).12 Moreover,

        [i]t is also settled that Alleyne does not invalidate a
        mandatory minimum sentence when presented in an
        untimely PCRA petition. See Commonwealth v. Miller,
        102 A.3d 988 (Pa. Super. 2014). In concluding Alleyne
        does not satisfy the new retroactive constitutional right
        exception to the PCRA’s one year time bar, 42 Pa.C.S. §
        9545(b)(1)(iii), the Miller Court explained:

           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 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 to those cases.

        Id. at 995 (citations omitted) (emphasis supplied).
        Furthermore, this Court also recently declined to give
        Alleyne retroactive effect to cases on timely collateral

12
   This Court has determined that the following cases be considered by the
Court en banc: Commonwealth v. Aybar, 1224 MDA 2014,
Commonwealth v. Ciccone, 3114 EDA 2014, and Commonwealth v.
Haskins, 1815 MDA 2014. The en banc Court will address the issue of
“[w]hether the PCRA petitioner is entitled to relief when he raises, in a
timely PCRA petition, a claim that his sentence is illegal pursuant to
Alleyne . . . and Commonwealth v. Newman, 99 A. 3d 86 (Pa. Super.
2014) (en banc)”.




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         review when the defendant’s judgment of sentence was
         finalized before  Alleyne     was  decided.      See
         Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super.
         2015).

Id. at 58.

      Appellant’s judgment of sentence was final on March 28, 2013. Thus,

his PCRA petition, filed on March 23, 2015, is facially untimely.    Alleyne

does not apply retroactively to an untimely PCRA. See Ruiz, 131 A.3d at

60.   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.    Therefore, the PCRA court lacked jurisdiction to consider the

legality of Appellant’s sentence.   See Davis, 86 A.3d at 887.      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.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/17/2016




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