J-S57039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
WILLIAM E. DENIAL,                        :
                                          :
                 Appellant                :     No. 207 WDA 2016

                Appeal from the PCRA Order January 26, 2016
                 in the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001957-1993
                           CP-25-CR-0001958-1993

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

MEMORANDUM BY STRASSBURGER, J.:           FILED AUGUST 29, 2016

      William E. Denial (Appellant) appeals from the January 26, 2016 order

which dismissed his fifth petition filed pursuant to the Post Conviction Relief

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

      In 1994, following convictions for various crimes related to Appellant’s

sexual abuse of his children, Appellant was sentenced to an aggregate term

of nine and one half to 24 years of imprisonment, followed by ten years of

probation.   This Court denied Appellant relief on direct appeal, and his

judgment of sentence became final in 1996 after our Supreme Court denied

his petition for allowance of appeal. Commonwealth v. Denial, 663 A.2d

246 (Pa. Super. 1995) (unpublished memorandum), appeal denied, 670




*Retired Senior Judge assigned to the Superior Court.
J-S57039-16


A.2d 140 (Pa. 1995).         Appellant’s first four PCRA petitions resulted in no

relief.

          Appellant filed the petition that is the subject of the instant appeal on

August 13, 2015. Therein, he claimed that he is entitled to relief in the form

of resentencing because his sentence is illegal under Alleyne v. United

States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that a fact which

triggers the imposition of a mandatory minimum sentence is an element of

the crime and must, therefore, be determined beyond a reasonable doubt by

a jury), and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)

(applying Alleyne to hold that the mandatory minimum sentence found at

18 Pa.C.S. § 6317 (relating to drug activity in a school zone) is

unconstitutional). PCRA Petition, 8/13/2015, at ¶¶ 3, 5-7.

          The PCRA court issued notice of its intent to dismiss the petition as

untimely filed without a hearing, to which Appellant filed a response in

opposition.       On January 26, 2016, the PCRA court entered an order

dismissing Appellant’s petition. Appellant timely filed a notice of appeal, and

both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

          On appeal, Appellant claims, inter alia, that the PCRA court erred in

not applying the Alleyne decision retroactively.          Appellant’s Brief at 15.

However, before we may address Appellant’s substantive arguments, we

must determine whether his PCRA petition was filed timely.




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      The timeliness of a post-conviction petition is jurisdictional.        See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.   Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available.           42

Pa.C.S. § 9545(b).

      It is clear that Appellant’s 2015 petition is facially untimely: his

judgment of sentence became final in 1996.          However, Appellant alleged

that his petition satisfied the following timeliness exception: “‘the facts upon

which the claim is predicated were unknown to the Petitioner and could not

be ascertained by the exercise of due diligence.’” PCRA Petition, 8/13/2015,

at 1 (pages unnumbered) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)).

      “Our Courts have expressly rejected the notion that judicial decisions

can   be   considered   newly-discovered    facts   which   would   invoke    the

protections afforded by section 9545(b)(1)(ii).”            Commonwealth v.




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

Watts, 23 A.3d 980, 986 (Pa. 2011)).

      Nor does Appellant’s reliance upon Hopkins satisfy the newly-

recognized-constitutional-right timeliness exception found at 42 Pa.C.S.

§ 9545(b)(1)(iii),   as   the    Hopkins        Court   did   not   recognize   a   new

constitutional right, let alone hold that any such right applied retroactively;

rather, it merely applied Alleyne to hold that a particular mandatory

minimum     sentence      not   applied    to     Appellant   was    unconstitutional.1

Furthermore, our Supreme Court has held that Alleyne itself does not apply

retroactively   to   cases      on   collateral    review.      Commonwealth         v.

Washington, -- A.3d --, 2016 WL 3909088 (Pa. July 19, 2016).

      Thus, the Hopkins decision does not assist Appellant in establishing a

timeliness exception to the PCRA’s limitations, and the PCRA court properly

dismissed the petition for lack of jurisdiction.

      Order affirmed.




1
   However, while Appellant’s appeal was pending, our Supreme Court
decided Commonwealth v. Wolfe, 68 MAP 2015, 2016 WL 3388530 (Pa.
June 20, 2016), a case involving 42 Pa.C.S. § 9718, the statute under which
Appellant was sentenced. In Wolfe, the Court reaffirmed Hopkins and held
that Section 9718 “is irremediably unconstitutional on its face, non-
severable, and void” under Alleyne. See Wolfe, 2016 WL 3388530 at *10.
Nonetheless, Wolfe is unavailing to Appellant in establishing a PCRA
timeliness exception for the same reasons as Hopkins fails to do so.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016




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