J-S50018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JAMES J. BURDEN

                         Appellant                     No. 2699 EDA 2014


                    Appeal from the Order July 23, 2014
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0007263-2007

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                           FILED OCTOBER 21, 2015

      Appellant, James J. Burden, appeals, pro se, from the July 23, 2014

order dismissing, as untimely, his second petition for relief filed pursuant to

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

careful review, we affirm.

      We summarize the relevant procedural history from the certified

record in this case as follows. On March 19, 2008, Appellant entered into an

open guilty plea to six counts of manufacture, delivery, or possession with

intent to deliver a controlled substance, five counts of dealing in unlawful

proceeds, and one count each of corrupt organizations (employee), criminal

conspiracy, criminal use of a communication facility, criminal attempt to

manufacture    or   deliver,   criminal   conspiracy   to   engage   in   corrupt
J-S50018-15


organizations, criminal conspiracy to aid, and possession of marijuana.1

Immediately thereafter, the trial court imposed an aggregate judgment of

sentence of 18½ to 50 years’ imprisonment. On March 27, 2008, Appellant

filed a timely post-sentence motion, which the trial court denied on August

11, 2008. Appellant did not appeal his sentence to this Court.

       On November 14, 2008, Appellant timely filed his first PCRA petition.

Appellant was appointed counsel, and the PCRA court conducted a hearing

on Appellant’s petition on July 21, 2009.        The next day, July 22, 2009,

Appellant agreed to withdraw his PCRA petition and motioned, instead, for

reconsideration of his sentence nunc pro tunc, to which the Commonwealth

agreed. Immediately thereafter, Appellant and the Commonwealth entered

into a negotiated guilty plea, under which the trial court vacated Appellant’s

March 19, 2008 judgment of sentence and resentenced Appellant to an

aggregate judgment of sentence of 12 to 28 years’ imprisonment, followed

by 12 years’ probation.        N.T., 7/22/09, at 3-12.   Appellant did not file a

timely post-sentence motion or a direct appeal to this Court.

       On August 20, 2009, Appellant did, however, file, pro se, an untimely

post-sentence motion to vacate or reconsider the fines, costs, and restitution

nunc pro tunc. See Pa.R.Crim.P. 720(A)(1) (providing that a post-sentence

____________________________________________


1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 5111(a)(1), 911(b)(3),
911(b)(4), 7512(a), 901(a), 903(a)(1), 903(a)(2), and 35 P.S. § 780-
113(a)(31), respectively.



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motion must be filed within ten days of the imposition of sentence).      The

trial court did not expressly grant nunc pro tunc relief before Appellant’s

sentence became final on August 21, 2009. Therefore, Appellant’s untimely

post-sentence motion did not toll the appeal period. See Commonwealth

v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (explaining that a post-

sentence motion nunc pro tunc filed within the 30-day appeal period may toll

the appeal period if the appellant properly requests nunc pro tunc relief, and

the trial court expressly permits the filing within the appeal period), citing

Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en

banc).      The trial court ultimately denied the post-sentence motion on

October 19, 2009. Appellant did not appeal that denial to this Court.

      On October 12, 2012, Appellant filed, pro se, a motion for modification

of sentence. The PCRA court treated it as Appellant’s first PCRA petition and

appointed counsel.    On November 1, 2013, following a hearing, the PCRA

court denied Appellant’s petition. On December 12, 2013, Appellant filed an

appeal to this Court, and this Court affirmed Appellant’s judgment of

sentence on June 24, 2014. Commonwealth v. Burden, 105 A.3d 43 (Pa.

Super. 2014) (unpublished memorandum). Appellant did not file a petition

for allowance of appeal with our Supreme Court.

      Thereafter, on July 14, 2014, Appellant filed, pro se, the instant PCRA

petition.   The PCRA court denied Appellant’s petition without a hearing on




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July 23, 2014.       On August 19, 2014, Appellant filed a timely notice of

appeal.2

       On appeal, Appellant raises the following five issues for our review.

              A. Whether the sentence in this case is illegal and
                 violates the Sixth Amendment to the United
                 States Constitution because the sentencing
                 [court] relied upon conduct not found by a [j]ury
                 or admitted in a plea?

              B. Whether the [p]etition in this case was timely
                 filed pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i) and
                 (ii)?

              C. Whether under Teague v. Lane, 489 U.S. 288
                 (1989) and its progeny the United States
                 Supreme Court’s decision in Alleyne v. United
                 States, 133 U.S. 2151 (2013) should be applied
                 retroactively?

              D. Whether the [a]pplication of the [m]andatory
                 [p]rovision in sentencing, now determined to be
____________________________________________


2
  Although Appellant’s notice of appeal was docketed on August 21, 2014,
the envelope that the notice of appeal was mailed in is dated August 19,
2014. Under the prisoner mailbox rule, “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), appeal denied, 46 A.3d 715 (Pa. 2012). As a result, we deem
Appellant’s notice of appeal filed on August 19, 2014, and therefore timely.
See Pa.R.A.P. 903(a) (providing that a notice of appeal must be filed within
30 days). We further note that while the clerk of courts found his notice of
appeal defective, that has no effect on its timeliness. See Pa.R.A.P. 902
(providing that the “[f]ailure of an appellant to take any step other than the
timely filing of a notice of appeal does not affect the validity of the
appeal…[]”).     Appellant cured those defects on September 4, 2014.
Moreover, the PCRA court did not order Appellant to file a concise statement
of matters complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b), and the PCRA court authored an opinion on
January 7, 2015.



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                 unconstitutional, vitiates the sentence and
                 eliminates all question of waiver, timeliness and
                 due diligence as bars to the relief sought?

               E. Whether having declared the [m]andatory
                  provision relied upon herein illegal, allowing
                  Appellant to continue to suffer that sentence
                  constitutes cruel and unusual punishment in
                  violation of the Eighth Amendment to the United
                  States Constitution?

Appellant’s Brief at 3.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine    whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of 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.”          Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).            “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”             Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it

implicates     the   jurisdiction     of   this   Court   and   the   PCRA    court.

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

omitted).   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)

(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for

filing a PCRA petition is not subject to the doctrine of equitable tolling;

instead, the time for filing a PCRA petition can be extended only if the PCRA

permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014) (internal quotation marks and citation omitted), cert. denied, Ali v.

Pennsylvania, 135 S. Ct. 707 (2014).          This is to “accord finality to the

collateral review process.”   Commonwealth v. Watts, 23 A.3d 980, 983

(Pa. 2011) (citation omitted).      “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.A. § 9545(b)(1)(i), (ii), and (iii), are met.”      Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).           The PCRA

provides, in relevant part, as follows.


            § 9545. Jurisdiction and proceedings

                                          …

            (b) Time for filing petition.—

                  (1) Any petition under this subchapter,
                  including a second or subsequent petition, shall
                  be filed within one year of the date the

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                 judgment becomes final, unless the petition
                 alleges and the petitioner proves that:

                       (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.

                 (2) Any petition invoking an exception
                 provided in paragraph (1) shall be filed within
                 60 days of the date the claim could have been
                 presented.

                                     …

42 Pa.C.S.A. § 9545(b)(1)-(2).

     Here, Appellant was sentenced on July 22, 2009, and did not file a

direct appeal with this Court. As a result, Appellant’s judgment of sentence

became final on August 21, 2009, when the time for Appellant to file a notice

of appeal to this Court expired. See id. § 9545(b)(3) (stating, “a judgment

becomes final at the conclusion of direct review, including discretionary


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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[]”).

Accordingly, Appellant had until August 21, 2010 to file a timely PCRA

petition. See id. § 9545(b)(1) (providing that a PCRA petition must be filed

within one year of the judgment of sentence becoming final to be considered

timely).   Therefore, Appellant’s present July 14, 2014 petition was facially

untimely. See id. However, Appellant asserts that two time-bar exceptions

apply in this case.         Specifically, Appellant raises the governmental

interference and the newly discovered fact exceptions to the time-bar.

Appellant’s Brief at 9-10.     We conclude that Appellant’s alleged basis for

invoking these exceptions, the United States Supreme Court’s decision in

Alleyne, does not satisfy the requirements of either exception.

      First, in order to meet the statutory requirements of the governmental

interference exception, “[the] [a]ppellant [is] required to plead and prove

that his failure to raise the claim previously was the result of interference by

government officials with the presentation of the claim [or claims] in

violation of the Constitution or laws of this Commonwealth or the

Constitution or laws of the United States….” Commonwealth v. Chester,

895 A.2d 520, 523 (Pa. 2006) (internal quotation marks and citation

omitted; emphasis in original).

      In   his   brief,   Appellant   attempts   to   invoke   the   governmental

interference exception based on Alleyne with the following argument.


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            The evidence which the instant petition rests [on]
            was within the knowledge and control of the
            sentencing [c]ourt, specifically, that the facts relied
            upon in imposing the mandatory provision at
            sentencing were judicially found and unavailable to
            Appellant   until   Alleyne      was    decided    and
            subsequently clarified by the Blair County Court of
            Common Pleas.

Appellant’s Brief at 9.        Appellant’s argument does not fit into the

governmental    interference    exception.   Appellant   did   not    plead   any

affirmative interference by a government official that prevented him from

bringing a claim that his mandatory minimum sentence was unconstitutional.

Instead, Appellant had knowledge of the facts the sentencing court relied

upon in imposing the sentence because those facts were available to him

prior to his plea, at the time of his plea, and at the sentencing hearing when

the sentencing court disclosed the basis for its sentencing decision in open

court. Moreover, the Alleyne decision was announced in the course of the

normal judicial process; Appellant does not allege that a government official

interfered with his ability to discover Alleyne or bring a claim based on

Alleyne.    Therefore, Appellant has failed to plead a proper claim of

governmental interference, and his PCRA petition is untimely on this basis.

See Chester, supra.

      Likewise, our Supreme Court has previously described a petitioner’s

burden under the newly discovered evidence exception as follows.

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the petitioner
            must establish that: 1) “the facts upon which the

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              claim was predicated were unknown” and 2) “could
              not have been ascertained by the exercise of due
              diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
              added).

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in

original).

       Similar to his governmental interference claim, Appellant alleges that

the Alleyne decision constitutes a newly discovered fact. Appellant’s Brief

at 10. It is well settled, however, that a judicial decision is not a “fact” for

purposes of satisfying the newly discovered facts exception to the PCRA

time-bar. Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011); accord

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013). Accordingly, as Alleyne is not a fact, and

Appellant has not pled or proven any other newly discovered facts that

would meet the time-bar exception in Section 9545(b)(1)(ii), his PCRA

petition is untimely on this basis.3 See Watts, supra.

____________________________________________


3
  We note that Appellant does not invoke the time-bar exception in Section
9545(b)(1)(iii), the newly recognized constitutional right exception. Even if
he did, his claim would fail because this court has held that Alleyne does
not satisfy the new constitutional right exception to the time-bar.
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
Moreover, neither our Supreme Court nor the United States Supreme Court
has held that Alleyne is retroactive to cases on collateral review. See 42
Pa.C.S.A. § 9545(b)(1)(iii) (providing a time-bar exception for “a
constitutional right that was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania … and has been held by that
court to apply retroactively[]”).




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J-S50018-15


       Based on the foregoing, the PCRA court properly denied Appellant’s

second PCRA petition because it was untimely filed.4 Accordingly, we affirm

the PCRA court’s July 23, 2014 order.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2015




____________________________________________


4
  Even if Appellant were able to overcome the PCRA time-bar, his claim
would fail because this Court has held that Alleyne does not apply
retroactively on collateral review to judgments of sentence that became final
before Alleyne was announced. Commonwealth v. Riggle, --- A.3d ---,
2015 WL 4094427, at *4-6 (Pa. Super. 2015) (noting Alleyne applies
retroactively to cases pending on direct appeal, but concluding that Alleyne
did not announce a substantive or watershed constitutional procedural rule,
and therefore, is not entitled to retroactive application in the PCRA setting).
As Appellant’s sentence became final on August 21, 2009, before Alleyne
was announced on June 17, 2013, he is not entitled to the retroactive
application of Alleyne on collateral review. See id. at *6.



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