J-S34010-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

JERLION THORPE

                         Appellant                   No. 1938 EDA 2016


                Appeal from the PCRA Order May 20, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0604861-2001


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED JULY 14, 2017

      Jerlion Thorpe appeals from the order denying his PCRA petition as

untimely. We affirm.

      We previously set forth the facts underlying Appellant’s convictions as

follows.

      Appellant is the biological father of the victim, A.G., who was
      born on August 8, 1986. The victim testified at trial regarding
      multiple acts of sexual abuse Appellant committed upon her from
      1999 until 2001. The victim recounted that the abuse began
      when she was twelve years old and took place when she visited
      Appellant on the weekends at his home located on 42nd Street
      in Philadelphia.     There, Appellant would show the victim
      pornographic movies. He would then touch her breasts under
      her clothing and rub his penis against her vagina. She also
      testified that Appellant would put his penis between the lips of
      her vagina but not fully into her vagina. Appellant also rubbed
      his penis against her buttocks. Appellant also told the victim that
      if she ever told anyone about the abuse her mother would go to
      jail. Subsequently, Appellant moved in with the victim and her

* Retired Senior Judge specially assigned to the Superior Court.
J-S34010-17



      mother at their home on 740 South 15th Street. The victim
      revealed that the abuse continued. However, it occurred less
      than once a week.

      Later, Appellant moved out of the home on 15th Street to a
      residence located at 3912 Howland Street. The victim would visit
      Appellant there on the weekends. The victim testified that
      Appellant abused her during these visits. She also recalled that
      one time Appellant put his penis into her mouth. The victim also
      testified that she would rub Appellant’s back while he was naked
      and that he would rub her back while straddled on top of her.
      He would then ejaculate on her back and lick the sperm off of
      her.

      Appellant and her brother later moved into Appellant’s home on
      Howland Street. The abuse continued there. The victim tried to
      avoid the abuse by inviting friends over or staying overnight at a
      friend’s house. The victim testified that she never told her
      mother what was happening because she was afraid of what her
      mother might do to Appellant. In April of 2001, the victim told
      her mentor, Sandy Short, about the abuse. The victim spoke
      with DHS and Detective Dave Thomas of the Special Victims Unit
      about the abuse. The victim also told Detective Thomas that she
      kept a diary at her mother’s home. One entry, which the victim
      had scribbled out, was written in February 2000. This entry was
      made following an occasion in which Appellant forbid the victim
      to go to a friend’s house because he felt that he and the victim
      did not spend enough “quality” time together. The entry read,
      “When he tried to touch me before. F--k a quality time, you
      pervert.” The victim testified that she wondered why Appellant
      would say anything about quality time when he was abusing her.

Commonwealth v. Thorpe, 911 A.2d 187 (Pa.Super. 2006) (unpublished

memorandum), at 2-3.

      Appellant was charged with a litany of sexual crimes and proceeded to

a bench trial, after which he was convicted of sexual assault, incest, indecent

assault, endangering welfare of children, and corruption of minors. He was

sentenced to an aggregate term of seven to fourteen years incarceration.

                                     -2-
J-S34010-17



Following our decision on direct appeal, Appellant sought review with our

Supreme    Court,   which   denied   his   petition   on   February   28,   2007.

Commonwealth v. Thorpe, 918 A.2d 745 (Pa.Super. 2007). Appellant did

not seek review with the United States Supreme Court.

      Thereafter, Appellant unsuccessfully sought PCRA relief, and we

affirmed on appeal. Commonwealth v. Thorpe, 83 A.3d 1071 (Pa.Super.

2013). The instant petition was filed on August 3, 2015. The PCRA court

issued a notice of intent to dismiss, and, on May 20, 2016, dismissed the

petition as untimely. Appellant and the PCRA court complied with Pa.R.A.P.

1925, and the matter is ready for our review. Appellant presents two issues

for our consideration.

      1. Where Appellant has been determined to have been entitled
      to a first petition on prior petitions and becomes eligible to file
      another petition based upon newly discovered and or declared
      newly discovered evidence is he entitled as a matter of due
      process to first petition status on such petition entitled to a
      hearing and counsel?

      2. May the Commonwealth legislature suspend the state and or
      constitutional habeas corpus constitutional provisions?

Appellant’s brief at 4.

      It is well-settled that all PCRA petitions must be filed within one year

of the date a defendant’s judgment of sentence becomes final, unless an

exception applies. 42 Pa.C.S. § 9545(b)(1). The time-bar is jurisdictional in

nature; therefore, “when a PCRA petition is untimely, neither this Court nor

the trial court has jurisdiction over the petition.”        Commonwealth v.

                                     -3-
J-S34010-17



Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation and quotation marks

omitted). Timeliness presents a question of law, which we review de novo

and our scope of review is plenary. Commonwealth v. Hudson, 156 A.3d

1194, 1197 (Pa.Super. 2017).

     Appellant’s conviction became final when his time period for seeking

review with the United States Supreme Court expired, 42 Pa.C.S. §

9545(b)(3), which was ninety days after our Supreme Court denied his

petition for allowance of appeal. U.S.Sup.Ct.R. 13(1). Thus, his sentence

became final on May 29, 2007.        Accordingly, the present petition was

patently untimely unless one of the PCRA exceptions applied.

     Herein, Appellant invoked § 9545(b)(1)(iii), which applies when a new

constitutional right has been recognized to apply retroactively by either the

Supreme Court of Pennsylvania or the United States.      Appellant’s petition

cited Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which applied

Alleyne v. United States, 133 S.Ct. 2151 (2013) (jury must find beyond a

reasonable doubt any facts that increase a mandatory minimum sentence).

Hopkins determined that this Commonwealth’s mandatory sentencing

statutes were not severable from the portions that are unconstitutional post-

Alleyne.      The   PCRA   court   dismissed   the   petition,   finding   that

Hopkins/Alleyne did not satisfy the exception.

     On appeal, Appellant’s argument assailing that conclusion is confusing

and unclear. Neither of his appellate issues directly mentions any exception

                                    -4-
J-S34010-17



to the time-bar; instead, Appellant broadly asserts that Pennsylvania’s entire

collateral relief scheme is unconstitutional, in that (1) it violates due process

by imposing a time limitation in which to seek collateral relief, and (2) the

legislature lacked the authority to eliminate the writ of habeas corpus by

enacting the PCRA and its attendant statutory requirements.                              He also

maintains that, since he was entitled to have the PCRA court hear the issue

on the merits, he was entitled to counsel as well.

       We first note that the PCRA court correctly determined that the actual

exception     pled    in   the   petition      did    not    create      jurisdiction.       See

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne does

not satisfy the § 9545(b)(1)(iii) exception).                Therefore, the PCRA court

correctly dismissed the petition.1

       To the extent Appellant now seeks to invoke alternative theories on

appeal justifying our consideration of the merits of his claims, those have

been waived.         “[E]xceptions to the time bar must be pled in the PCRA

petition,   and      may   not   be    raised        for   the   first   time    on      appeal.”

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super. 2007); see also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are

____________________________________________


1
  Additionally, it is unclear if Appellant was actually sentenced to a
mandatory minimum sentence; he claims his “conviction was
unconstitutional under Alleyne[.]” Appellant’s brief at 5 (emphasis added).
Alleyne has to do with sentences, not convictions.



                                            -5-
J-S34010-17



waived and cannot be raised for the first time on appeal).      Therefore, his

challenges to the collateral relief statutory scheme have been waived.

      Regardless, we note that, even if Appellant had properly presented

and preserved his constitutional claims, his precise arguments have been

rejected. Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998) (one-year

period satisfies due process as it affords enough time to prepare petition,

and the PCRA contains exceptions for misconduct, newly-discovered facts,

and constitutional changes).

      Additionally, the significance of the one-year time limit with respect to

his claim is unexplained, as Alleyne simply does not apply to him in any

event. Appellant has overlooked the dividing line between convictions that

were pending on direct review when a new constitutional rule of criminal

procedure has been announced, and those whose convictions were final

when the rule was announced.        “[A] new constitutional rule of criminal

procedure does not apply, as a general matter, to convictions that were final

when the new rule was announced.” Louisiana v. Montgomery, 136 S.Ct.

718 (2016). Finality is the key dividing line, and therefore even timely PCRA

petitioners are not entitled to Alleyne’s application.    Commonwealth v.

Ciccone, 152 A.3d 1004 (Pa.Super. 2016) (en banc).

      Thus, Appellant’s real objection has nothing to do with a limitation on

the ability to seek collateral relief but with the fact that his conviction was

final when Alleyne was issued. States are required to give retroactive effect

                                     -6-
J-S34010-17



only to new substantive rules.    Montgomery, supra at 729 (“The Court

now holds that when a new substantive rule of constitutional law controls

the outcome of a case, the Constitution requires state collateral review

courts to give retroactive effect to that rule.”). The word “substantive” has a

particular meaning in this context and Alleyne does not fall within its

definition.   Washington, supra.     Accordingly, Appellant’s challenges are

misplaced.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




                                     -7-
