J-S42028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JASON J. EMRA

                            Appellant                  No. 554 EDA 2015


                 Appeal from the PCRA Order February 9, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003952-2009


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

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

        Appellant, Jason J. Emra, appeals pro se1 from the February 9, 2015

order dismissing his first petition for relief filed pursuant to the Post

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

review, we affirm.

        On August 15, 2011, Appellant pled guilty to two counts of possession

with intent to deliver (PWID).2 That same day, the trial court imposed an

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  The PCRA court appointed counsel for Appellant, who later was granted
leave to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), and their progeny. Appellant does not challenge said withdrawal on
appeal.
2
    35 P.S. § 780-113(a)(30).
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aggregate sentence of eight to 16 years’ imprisonment, plus four years’

probation.    On September 9, 2011, the trial court resentenced Appellant

upon consideration of a timely post-sentence motion for modification filed by

the Commonwealth, although the relevant terms of the sentence remained

unchanged.

       Appellant did not file a notice of appeal with this Court. As a result,

Appellant’s judgment of sentence became final on October 11, 2011, when

the time to file a notice of appeal to this Court expired. 3 See 42 Pa.C.S.A.

§ 9545(b)(3) (stating, “a judgment becomes final 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[]”); Pa.R.A.P. 903(c) (stating, “[i]n a criminal case in

which no post-sentence motion has been filed, the notice of appeal shall be

filed within 30 days of the imposition of the judgment of sentence in open

court[]”). Therefore, Appellant had until October 11, 2012 to timely file a

PCRA petition.     See generally 42 Pa.C.S.A. § 9545(b)(1). Appellant filed

the instant PCRA petition on December 4, 2014; as a result, it was patently

untimely. Consequently, the PCRA court lacked jurisdiction to consider the
____________________________________________
3
   We observe that the 30th day fell on Sunday, October 9, 2011, and the
next day was a holiday, Columbus Day. When computing the 30-day filing
period “[if] the last day of any such period shall fall on Saturday or Sunday,
or on any day made a legal holiday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was on Tuesday, October 11, 2011.



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merits of Appellant’s PCRA petition unless one “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), [apply].”   Commonwealth v. Lawson, 90

A.3d 1, 5 (Pa. Super. 2014) (citation omitted).

       To the extent Appellant argues in his PCRA petition and appellate brief

that Alleyne v. United States, 133 S. Ct. 2151 (2013) satisfies the new

constitutional right exception to the time-bar under Section 9545(b)(1)(iii),

this Court has held it does not. Commonwealth v. Miller, 102 A.3d 988,

995 (Pa. Super. 2014).     In addition, our decisions in Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) and Commonwealth v.

Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc) only noted that Alleyne

applied retroactively to cases that were on direct appeal at the time Alleyne

was decided on June 17, 2013. Newman, supra at 90; Watley, supra at

117.    This Court has not held that Alleyne applies retroactively to

judgments of sentence already final when the Alleyne case was decided.

Even if this Court did conclude as such, Section 9545(b)(1)(iii) only permits

a time-bar exception when either our Supreme Court or the United States

Supreme Court holds a new constitutional right to be retroactive to cases on

collateral review.   See 42 Pa.C.S.A. § 9545(b)(1)(iii) (allowing 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[]”) (emphasis added).


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Therefore, the PCRA court correctly determined that it lacked jurisdiction to

address the merits of any of Appellant’s claims.4

       Based on the foregoing, we conclude the PCRA court correctly

dismissed Appellant’s PCRA petition as untimely.     Accordingly, the PCRA

court’s February 9, 2015 order is affirmed.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




____________________________________________
4
  Although Alleyne claims pertain to the legality of the sentence and are
generally non-waivable, this does not displace the requirements of the PCRA
time-bar. Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super.
2014), appeal denied, 101 A.3d 103 (Pa. 2014).



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