J-S71028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                           Appellee

                      v.

TONY RUFUS RATCLIFF, III,

                           Appellant                       No. 703 WDA 2015


                 Appeal from the PCRA Order March 6, 2015
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001717-2009


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED DECEMBER 14, 2015

      Appellant, Tony Rufus Ratcliff, III, appeals pro se from the order

denying his second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      We summarize the history of this case as follows. On March 22, 2011,

a jury convicted Appellant of the crimes of possession with intent to deliver,

firearms   not   to   be   carried     without   a   license,   possession   of   drug

paraphernalia, and three counts of possession of a controlled substance.

The trial judge convicted Appellant of the summary offense of driving while

operating privileges are suspended.          On July 25, 2011, the trial court

sentenced Appellant to an aggregate term of incarceration of five to ten

years.   Among the sentences imposed by the trial court was a mandatory

term of incarceration of five to ten years for Appellant’s conviction of
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possession with intent to deliver.    Appellant filed post-sentence motions,

which the trial court denied.    Thereafter, this Court affirmed Appellant’s

judgment of sentence on July 25, 2012. Commonwealth v. Ratcliff, 1597

WDA 2011, 55 A.3d 148 (Pa. Super. 2012) (unpublished memorandum).

Appellant did not seek further review in the Pennsylvania Supreme Court.

      On October 24, 2012, Appellant filed his first PCRA petition, and the

PCRA court ultimately denied relief on June 4, 2013. This Court affirmed the

decision of the PCRA court on February 4, 2014.          Commonwealth v.

Ratcliff, 1050 WDA 2013, 97 A.3d 793 (Pa. Super. 2014) (unpublished

memorandum).

      On February 9, 2015, Appellant filed a writ of habeas corpus with the

court of common pleas arguing that the mandatory minimum sentence

imposed in his case is illegal pursuant to Alleyne v. United States, 133

S.Ct 2151 (2013). The court interpreted Appellant’s filing as a second PCRA

petition and, on March 9, 2015, filed a notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907. On April 10, 2015, the PCRA court dismissed Appellant’s

second PCRA petition. This timely appeal followed. Both Appellant and the

PCRA court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Did the trial court abuse its discretion by dismissing
      Appellant’s second Motion for Post Conviction Collateral Relief
      (originally titled as a Writ of Habeas Corpus) without a hearing,
      in light of recent decisions by the Pennsylvania Superior and
      Supreme Courts and the United States Supreme Court?


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            (a) Whether an illegal sentence is ever considered
            final?

            (b) Whether the trial court always has jurisdiction to
            correct an illegal sentence and must entertain such a
            request when same is presented to them?

            (c) Whether Appellant has invoked the exception to
            42 Pa.C.S.A. 9545(b)(1)(iii) in his second pro se
            PCRA petition, given the very limited access to legal
            materials as a result of his prolonged incarceration?

      2. Did the trial court impose an unconstitutional mandatory
      minimum sentence?

Appellant’s Brief at 4.

      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 determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      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). This time

requirement is mandatory and jurisdictional in nature, and it may not be

ignored in order to reach the merits of the petition.     Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “becomes

final at the conclusion of direct review, including discretionary review in the

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Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”            42 Pa.C.S. §

9545(b)(3).

       However, an 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(b)(1)(i), (ii),

and (iii), is met.1 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
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1
    The exceptions to the timeliness requirement are:

       (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

       (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)(i), (ii), and (iii).



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      Our review of the record reflects that the trial court imposed the

judgment of sentence on July 25, 2011.           This Court affirmed Appellant’s

judgment of sentence on July 25, 2012. Appellant did not seek review in the

Pennsylvania Supreme Court. Accordingly, Appellant’s judgment of sentence

became final on August 24, 2012, thirty days after this Court affirmed

Appellant’s judgment of sentence and the time for filing a petition for

allowance of appeal with the Pennsylvania Supreme Court expired.               42

Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).      Appellant did not file the instant

PCRA petition until February 9, 2015.      Thus, the instant PCRA petition is

patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

      Instantly,   Appellant   contends   that    Alleyne   established   a   new

constitutional right that applies retroactively under section 9545(b)(1)(iii).

However, Appellant failed to raise this exception in a timely manner.

Alleyne was decided on June 17, 2013. Appellant did not file the instant

PCRA petition until February 9, 2015, which was well over sixty days after

the date the claim could have been presented. Therefore, Appellant failed to


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

Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating

that “[w]ith regard to [a newly] recognized constitutional right, this Court

has held that the sixty-day period begins to run upon the date of the

underlying judicial decision.”).

       Further, this Court has held that even if Alleyne is interpreted as

enunciating a newly recognized constitutional right, such right is not

applicable retroactively to cases on PCRA review.         Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa. Super. 2014).         Specifically, the Court in

Miller stated the following:

             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. See also Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015)

(finding Alleyne is not entitled to retroactive effect in PCRA setting). 2 For



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2
  While we acknowledge that Appellant’s claim concerning Alleyne goes to
the legality of his sentence, we note that this Court has stated that
“although illegal sentencing issues cannot be waived, they still must be
presented in a timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d
462, 465 (Pa. Super. 2013).



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this reason as well, Appellant has failed to invoke an applicable timeliness

exception.

      In conclusion, because Appellant’s second PCRA petition was untimely

and no exceptions apply, the PCRA court lacked jurisdiction to address the

claims presented and grant relief.    See Commonwealth v. Fairiror, 809

A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction

to hear untimely petition).   Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.              See

Commonwealth        v.    Bennett,   930   A.2d   1264,    1267    (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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