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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1       IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                             Appellee

                        v.

ALISTER CAMPBELL

                             Appellant                       No. 1324 MDA 2016


                  Appeal from the PCRA Order June 23, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003854-2002
                              CP-22-CR-0003855-2002
                              CP-22-CR-0003856-2002

BEFORE:     BOWES, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                                    FILED APRIL 06, 2017

        Alister Campbell appeals pro se from the order, entered in the Court of

Common Pleas of Dauphin County, which dismissed his second petition filed

pursuant to the Post Conviction Relief Act (PCRA) as untimely.'                  Upon

review, we affirm.

        Following   a   jury trial held October       6   through October 10, 2003,

Campbell was convicted of criminal homicide and related offenses.           He was

sentenced on December 5, 2003, to an aggregate term of 20 to 40 years'

imprisonment. Campbell filed        a    counseled direct appeal from his judgment




"   42 Pa.C.S. §§ 9541-9546.
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of sentence, which culminated in our Supreme Court denying allowance of

appeal on January 11, 2005.

        Thereafter, on November 14, 2005, Campbell filed              a   timely pro se first
PCRA    petition.    The PCRA court appointed counsel.             On July 11, 2006, the

court dismissed the first petition without         a   hearing, after providing notice of

its intent to do so pursuant to Pa.R.Crim.P. 907. Campbell filed an appeal in

this Court, which was dismissed for failure to file          a   brief.   On June 4, 2012,

Petitioner filed     a   "Motion to Correct Illegal Sentence Regarding Inadequate

Collateral and Trial Counsel." The trial court treated this motion as              a   second

PCRA    petition and dismissed it as untimely. Campbell did not file an appeal

of the dismissal of his second petition.

        Subsequently, on February 22, 2016, Defendant filed the instant pro

se PCRA petition.          The PCRA court denied Campbell's request for counsel.

After issuing    a   notice pursuant to Rule 907, the court dismissed the petition

on June 23, 2016.          Campbell   is   proceeding pro se on appeal.       He raises the

following issues, verbatim, for our review:

        1.   Whether the court erred in denying       [Campbell's] PCRA
             petition due to the change in law        as announced by
             Commonwealth v. Hopkins[, 117 A.3d 247 (Pa. 2015),] as
             newly stated constitutional law[,] to have all factors which
             would increase his sentence [be] proven beyond a reasonable
             doubt.
        2. Whether the federal court's      action[s] in similar cases have
             created a precedent that the state courts should follow,
             allow[ing] retroactiv[ity], or whether retroactive application
             was necessary when [Campbell] filed a timely post[-]
             conviction petition.


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Brief for Appellant, at 2.

         Our standard and scope of review regarding the denial of        a    PCRA

petition   is   well -settled.   We review the PCRA court's findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311            (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.   Id.
         In order to be considered timely,

         [a] PCRA petition, including a second or subsequent one, must
         be filed within one year of the date the petitioner's judgment of
         sentence became final, unless he pleads and proves one of the
         three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
         judgment becomes final at the conclusion of direct review by
         [the Pennsylvania Supreme] Court or the United States Supreme
         Court, or at the expiration of the time for seeking such review.
         42 Pa.C.S. § 9545(b)(3). The PCRA's timeliness requirements
         are jurisdictional; therefore, a court may not address the merits
         of the issues raised if the petition was not timely filed. The
         timeliness requirements apply to all PCRA petitions, regardless of
         the nature of the individual claims raised therein. The PCRA
         squarely places upon the petitioner the burden of proving an
         untimely petition fits within one of the three exceptions.
Commonwealth v. Jones,              54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

         The three statutory exceptions for an untimely petition under the PCRA

consist of the following:




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           (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)-(iii). Additionally,   a   petition invoking    a    timeliness

exception pursuant to the statute must "be filed within 60 days of the date

the claim could have been presented." 42 Pa.C.S.               §    9545(b)(2).

           Here, Campbell's petition for allowance of appeal in our Supreme Court

was denied on January 11, 2005. Thus, his sentence became final on April

11, 2005, upon the expiration of the ninety -day period for filing                      a   writ of
certiorari with the United States Supreme Court.                        See 42 Pa.C.S.           §

9545(b)(3); Sup. Ct.         R.   13.    Campbell therefore had until April 11, 2006, to

file   a    timely   PCRA    petition.      See 42 Pa.C.S.      §    9545(b)(1).        Because

Campbell did not file the instant PCRA petition until February 22, 2016, it is

patently untimely.

           Campbell argues that he has satisfied the timeliness exception in

section 9545(b)(1)(iii)           because     he   filed the instant     PCRA         petition in

anticipation of our decision in Commonwealth v. Ciccone,                              A.3d        I



2016 PA Super 283 (filed Dec. 13, 2016) (en banc), apparently with the

belief that this Court would hold that Alleyne v. United States, 133 S. Ct.

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2151 (2013),2 would apply retroactively in PCRA contexts such as this.

However, unfortunately for Campbell, in Ciccone, an en banc panel of this

court determined that the holding in Alleyne does not apply to situations

such as his. See Ciccone,          supra (Pennsylvania Supreme Court           has clearly

ruled in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), that

Alleyne       is   not retroactively applicable in PCRA context).            Accordingly,

Campbell fails to meet      a   timeliness exception and   is   entitled to no relief.3

        Order affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 4/6/2017




2   Alleyneheld that any fact increasing a mandatory minimum sentence for                 a
crime is an "element" of the crime that must be submitted to the jury.

3 Campbell's Application for Relief dated February 14, 2017, requesting
reconsideration of his second issue raised on appeal is denied, as we are
without jurisdiction to consider the issue, since the instant PCRA petition is
untimely. Jones, supra.


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