J-S05035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MATTHEW D. WATKINS, III,

                            Appellant                  No. 740 MDA 2016


                 Appeal from the PCRA Order February 5, 2016
               in the Court of Common Pleas of Lycoming County
               Criminal Division at No.: CP-41-CR-0001965-2005


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED MARCH 01, 2017

        Appellant, Matthew D. Watkins, III, appeals pro se from the order

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

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        A previous panel of this Court set forth the factual and procedural

history of this case as follows.

        . . . [F]ollowing a jury trial on January 19, 2007, [Appellant] was
        convicted of one count each of Robbery, Criminal Conspiracy to
        commit Robbery, Theft by Unlawful Taking or Disposition,
        Receiving Stolen Property, Possessing Instruments of Crime, and
        Simple Assault,[1] stemming from the robbery of [his] place of
        employment, the Billtown Cab Company. On February 6, 2007,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3921(a), 3925(a), 907(b), and
2701(a)(3), respectively.
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       the trial court sentenced [Appellant] to an aggregate term of 12
       to 32 years [of] imprisonment, to be followed by 8 years [of]
       probation.[2]    Although [Appellant] initially pursued a direct
       appeal with this Court, on December 17, 2007, [he]
       subsequently filed a Praecipe to Withdraw his direct appeal,
       which this Court granted by order dated December [19], 2007.

              On January 8, 2008, [Appellant] filed his first [counseled]
       PCRA petition raising, inter alia, claims of ineffective assistance
       of counsel. Thereafter, [Appellant] filed amended PCRA petitions
       on April 3, 2008, and May 9, 2008, respectively. Following an
       evidentiary hearing, the PCRA court denied [Appellant’s] PCRA
       petition by order dated December 31, 2008. . . .

(Commonwealth           v.    Watkins,         No.   105   MDA   2009,   unpublished

memorandum at *1-2 (Pa. Super. filed Jan. 22, 2010)) (footnotes omitted).

This Court affirmed the court’s denial of Appellant’s PCRA petition on January

22, 2010. (See id. at *1). Our Supreme Court denied Appellant’s petition

for allowance of appeal on July 26, 2010.                  (See Commonwealth v.

Watkins, 999 A.2d 1246 (Pa. 2010)).

       Appellant filed the instant pro se PCRA petition on November 30,

2015,3 claiming that the mandatory minimum sentence imposed on him


____________________________________________


2
  Relevant to this appeal, prior to sentencing, the Commonwealth gave
notice of its intention to seek at least the mandatory minimum term of
incarceration under 42 Pa.C.S.A. § 9712 (providing mandatory minimum
sentence of five years for persons who visibly possess firearm during
commission of crime of violence, including robbery).       (See N.T. Trial,
1/19/07, at 55-56). The trial court sentenced Appellant to a minimum term
of six years’ incarceration on the robbery count. (See Sentencing Order,
2/06/07).
3
  We deem Appellant’s pro se PCRA petition and his notice of appeal
(referenced infra) filed on the day they were dated rather than on the day
(Footnote Continued Next Page)


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pursuant to 42 Pa.C.S.A. § 9712 is unconstitutional under Alleyne v.

United States, 133 S.Ct. 2151 (2013), and Commonwealth v. Hopkins,

117 A.3d 247 (Pa. 2015).4 On January 8, 2016, the court issued an opinion

and notice of its intent to dismiss the PCRA petition without a hearing as

untimely.    See Pa.R.Crim.P. 907(1).             Appellant did not respond.   On

February 5, 2016, the court entered its order dismissing Appellant’s PCRA

petition. This timely appeal followed.5

      Appellant raises the following issues for our review:

      I. Did the [PCRA] [c]ourt err in denying the [PCRA] [p]etition
      without a hearing by misapprehending the retrospective
      application in Commonwealth v. Hopkins, 117 A.3d 247 ([Pa.]
      2015) when its paradigm, Alleyne v. United States, 133 S.Ct.
      2151 (2013) created a “substantive rule,” which “the
      Constitution requires State Collateral Review Courts to give
      retroactive effect to that rule?”

      II. Did the [PCRA] [c]ourt err in denying the [PCRA] [p]etition
      when [Appellant] filed the instant [PCRA] [p]etition timely by
                       _______________________
(Footnote Continued)

they were docketed, pursuant to the prisoner mailbox rule.       See
Commonwealth v. Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012).
4
  In Alleyne, the United States Supreme Court held that under the Sixth
Amendment to the United States Constitution, a jury must find beyond a
reasonable doubt any facts that increase a mandatory minimum sentence.
See Alleyne, supra at 2158. In Hopkins, the Pennsylvania Supreme Court
held that 18 Pa.C.S.A. § 6317(a)—which imposes a mandatory minimum
sentence of two years’ incarceration on certain drug offenses—is
unconstitutional in light of Alleyne. See Hopkins, supra at 249, 262.
5
  Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on April 7, 2016. See Pa.R.A.P.
1925(b). The court entered an opinion on May 25, 2016, in which it relied
on its opinion filed on January 8, 2016. See Pa.R.A.P. 1925(a).



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      filing within sixty (60) days of learning of the Supreme Court of
      Pennsylvania’s decision in Commonwealth v. Hopkins, 117
      A.3d 247 ([Pa.] 2015)?

      III. Did the [PCRA] [c]ourt err in denying the [PCRA] [p]etition
      without a hearing when [Appellant] contends that through the
      [c]ourt’s inherent power, the [PCRA] [c]ourt always retains
      jurisdiction to correct [its] patently unconstitutional, and
      therefore illegal sentence?

(Appellant’s Brief, at 4).

      As an initial matter, we must address the timeliness of Appellant’s

PCRA petition.

            In reviewing an order denying post-conviction relief, we
      examine whether the trial court’s determination is supported by
      evidence of record and whether it is free of legal error. Where
      an issue presents a question of law, the appellate court’s
      standard of review is de novo, and its scope of review is plenary.
      ...

             The PCRA provides eligibility for relief in conjunction with
      cognizable claims, . . . and requires petitioners to comply with
      the timeliness restrictions. . . . [A] PCRA petition, including a
      second or subsequent petition, must be filed within one year of
      the date that judgment becomes final. A judgment becomes
      final for purposes of the PCRA 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 for seeking the review.

             It is well-settled that the PCRA’s time restrictions are
      jurisdictional in nature.      As such, this statutory time-bar
      implicates the court’s very power to adjudicate a controversy
      and prohibits a court from extending filing periods except as the
      statute permits.     Accordingly, 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
      by operation of one of the statutorily enumerated exceptions to
      the PCRA time-bar.




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             The exceptions to the PCRA time-bar are found in Section
      9545(b)(1)(i)–(iii) (relating to governmental interference, newly
      discovered facts, and newly recognized constitutional rights),
      and it is the petitioner’s burden to allege and prove that one of
      the timeliness exceptions applies. Whether a petitioner has
      carried his burden is a threshold inquiry that must be resolved
      prior to considering the merits of any claim. . . .

Commonwealth       v.   Robinson,    139   A.3d   178,   185–86   (Pa.     2016)

(quotation marks and citations omitted).

      In this case, Appellant’s judgment of sentence became final on

December 19, 2007, the date this Court permitted him to voluntarily

withdraw his direct appeal.    See 42 Pa.C.S.A. § 9545(b)(3).      Therefore,

Appellant had until December 19, 2008, to file a timely PCRA petition. See

id. at § 9545(b)(1).      Because Appellant filed the instant petition on

November 30, 2015, it is untimely on its face, and the PCRA court lacked

jurisdiction to review it unless he pleaded and proved one of the statutory

exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

            (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



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       this section and has been held by that court to             apply
       retroactively.

Id.

       Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] petition is determined to be untimely, and no exception has been

pled and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

       Here, Appellant invokes the newly recognized and retroactively applied

constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii) by reference

to Alleyne, and Hopkins, supra.            (See Appellant’s Brief, at 8-16).

Appellant argues that Alleyne created a new rule of constitutional law that

must be applied retroactively to his case on collateral review because he is

serving an invalid mandatory minimum sentence. (See id. at 8, 11, 15-16,

26).   However, as the Commonwealth noted, Alleyne is not applicable in

this case because Appellant is not serving a mandatory minimum sentence.

(See Commonwealth’s Brief, at 4-5; see also Sentencing Order, 2/06/07).

While the Commonwealth gave notice of its intent to seek at least the

mandatory minimum five-year sentence, the court did not impose this

sentence, and instead imposed a sentence above the mandatory minimum

term of incarceration.     (See N.T. Trial, 1/19/07, at 55-56; see also

Sentencing Order, 2/06/07).

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        Moreover,   “our        Supreme     Court   recently   filed    an   opinion     in

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) wherein it

addressed the retroactive effect of Alleyne and held ‘that Alleyne does not

apply    retroactively     to    cases    pending   on   collateral    review.   .   .   .’”

Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa. Super. 2016)

(internal citation formatting provided).          Therefore, Alleyne does not apply

to Appellant’s case for this reason as well.

        Finally, we address Appellant’s contention that his sentence imposed

pursuant to section 9712 is illegal under Alleyne and must be corrected

because “the [PCRA] [c]ourt and this . . . Court never relinquish their

jurisdiction to correct an illegal sentence and always retain the inherent

power to do so.”         (Appellant’s Brief, at 23; see id. at 21-26) (emphasis

omitted). This claim is meritless because, as discussed above, Appellant is

not serving a mandatory minimum sentence under section 9712 and, even if

he were, Alleyne does not apply retroactively to cases such as his on

collateral review. Furthermore, as previously noted, “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 by operation of one of

the statutorily enumerated exceptions to the PCRA time-bar.”                 Robinson,

supra at 185 (citation and quotation marks omitted). It is well-settled that

“[a]lthough legality of sentence is always subject to review within the PCRA,

claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.

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Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008) (citations omitted)

(emphasis added). Therefore, Appellant’s claims premised on Alleyne fail.

     In sum, Appellant’s petition is untimely and he has failed to plead or

prove the applicability of any of the three limited exceptions to the PCRA’s

jurisdictional time-bar. Therefore, we conclude that the PCRA court properly

dismissed Appellant’s PCRA petition without a hearing as untimely with no

exception to the time-bar pleaded or proven. See Robinson, supra at 185;

Jackson, supra at 519. Accordingly, we affirm the order of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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