J-S05039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY DARNELL SMITH, JR.,

                            Appellant                No. 1314 MDA 2015


                  Appeal from the Order Entered April 22, 2015
               in the Court of Common Pleas of Lycoming County
               Criminal Division at Nos.: CP-41-CR-0000746-2011
                            CP-41-CR-0000859-2012
                            CP-41-CR-0000929-2012


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

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 04, 2016

        Appellant, Anthony Darnell Smith, Jr., appeals pro se from the order

denying his third petition filed pursuant to the Post Conviction Relief Act

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

        On December 21, 2012, Appellant entered a negotiated plea at docket

numbers 858-2012, 859-2012, and 929-2012 to one count each of

possession with intent to deliver a controlled substance, aggravated assault,

and cruelty to animals; and three counts of possession of a firearm



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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prohibited.1      The charges arose from Appellant’s sale of marijuana,

commission of a robbery, and shooting of both a person and a dog.           On

February 4, 2013, the trial court sentenced Appellant pursuant to the plea

agreement’s terms to not less than ten nor more than twenty years’

incarceration, followed by ten years’ probation.         The court also revoked

Appellant’s parole at docket number 746-2011 and sentenced him to a term

of not less than one nor more than two years’ incarceration, to be served

consecutive to the sentence imposed pursuant to the negotiated plea.        No

post-trial motions or direct appeal were filed.

       On June 5, 2013, Appellant filed a first PCRA petition pro se. On June

13, 2013, the court appointed counsel.           On September 17, 2013, counsel

filed a Turner/Finley2 no-merit letter. On September 20, 2013, the court

issued a Rule 907 notice of its intent to dismiss the petition.            See

Pa.R.Crim.P. 907(1). Appellant did not respond. On October 30, 2013, the

court dismissed the petition, and granted counsel leave to withdraw.3

____________________________________________


1
 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 2702(a)(4), 5511(a)(2.1)(i)(A),
and 6105(a)(1), respectively.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
 The Prothonotary failed to forward a copy of the October 30, 2013 order to
Appellant. Therefore, on May 6, 2014, the PCRA court granted him the
opportunity to file an appeal nunc pro tunc within sixty days. Appellant filed
an untimely appeal, which this Court quashed per curiam on October 28,
2014.



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       On December 16, 2013, Appellant filed a second PCRA petition pro se

raising the same issues as those presented in his first petition.                  On

December 23, 2013, the court again appointed counsel, and, on April 17,

2014, counsel filed a Turner/Finley no-merit letter. On May 6, 2014, the

PCRA     court    vacated     its   order      appointing   counsel,   dismissed   the

Turner/Finley letter as moot, and dismissed Appellant’s second PCRA

petition.

       On March 18, 2015, Appellant filed a third PCRA petition pro se. On

March 24, 2015, the court entered a Rule 907 notice, and, on April 22, 2015,

it dismissed Appellant’s petition as untimely. Appellant timely appealed.4

       Appellant raises one issue for our review: “Did the [PCRA] court err in

not correcting an illegal sentence?” (Appellant’s Brief, at 2).

       Before we are able to consider the merits of Appellant’s claim on

appeal, we must determine whether the PCRA court properly determined

____________________________________________


4
  The deadline for filing the notice of appeal was May 22, 2015, the Friday
before Memorial Day weekend. The notice is dated May 17, 2015, the
certified record does not contain an official postmark, and the document was
docketed on May 26, 2015, the Tuesday after the holiday. However,
because Appellant is incarcerated, we will consider his notice of appeal
timely pursuant to the prisoner mailbox rule. See Commonwealth v.
Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (declining to quash appeal
for untimeliness where appellant necessarily would have had to mail his
notice from prison prior to deadline, although filed by court after it); see
also Pa.R.A.P. 121(a) (“A pro se filing submitted by a prisoner incarcerated
in a correctional facility is deemed filed as of the date it is delivered to the
prison authorities for purposes of mailing or placed in the institutional
mailbox[.]”).



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that his petition was untimely, and that therefore it did not have jurisdiction

to decide its merits.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We grant great deference to
      the factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

      Here, the PCRA court found Appellant’s third PCRA petition was

untimely and he failed to plead and prove any exception to the PCRA time-

bar. (See Order, 3/24/15). We agree.

      It is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.             42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.       The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.


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Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      In the case sub judice, Appellant’s judgment of sentence became final

on March 6, 2013, at the expiration of the time for him to seek review of his

judgment of sentence in this Court. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. §

9545(b)(3). Therefore, he had one year from that date to file a petition for

collateral relief unless he pleaded and proved that a timing exception

applied. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Hence, Appellant’s current

petition, filed on March 18, 2015, is untimely on its face and we will only

review its merits if he pleads and proves one of the statutory exceptions to

the time-bar.

      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right. See id. When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the   three   exceptions   to   the   PCRA   timing   requirements.   See

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If

the 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


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petition.”) (citation omitted).      Also, a PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

       Here, Appellant attempts to claim the applicability of the newly-

discovered constitutional right exception. (See Appellant’s Brief, at 5); see

also 42 Pa.C.S.A. § 9545(b)(1)(iii). Specifically, he alleges that the United

States Supreme Court’s reasoning in Alleyne v. United States, 133 S.Ct.

2151 (2013), should be applied retroactively to his case.5 (See Appellant’s

Brief, at 5-8). However, this claim is unavailing because Appellant has failed

to plead and prove the applicability of Section 9545(b)(1)(iii).

       It is well-settled that:

             Subsection (iii) of Section 9545[(b)(1)] has two
       requirements. First, it provides that the right asserted is a
       constitutional right that was recognized by the Supreme Court of
       the United States or th[e Pennsylvania Supreme C]ourt after the
       time provided in this section. Second, it provides that the right
       “has been held” by “that court” to apply retroactively. Thus, a
       petitioner must prove that there is a “new” constitutional
       right and that the right “has been held” by that court to
       apply retroactively . . . to cases on collateral review.

Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011)

(citation omitted) (emphasis in original).

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5
  The Supreme Court decided Alleyne on June 17, 2013. Appellant filed the
instant petition nearly two years later, on March 18, 2015, thus violating the
sixty-day requirement of 42 Pa.C.S.A. § 9545(b)(2). See 42 Pa.C.S.A. §
9545(b)(2).




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     In Alleyne, the Supreme Court of the United States held that “facts

that increase mandatory minimum sentences must be submitted to the jury”

and must be found beyond a reasonable doubt.       Alleyne, supra at 2163.

“The Alleyne decision, therefore, renders those Pennsylvania mandatory

minimum sentencing statutes that do not pertain to prior convictions

constitutionally infirm insofar as they permit a judge to automatically

increase a defendant’s sentence based on a preponderance of the evidence

standard.”    Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.

2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014) (footnote omitted).

     As a preliminary matter, we observe that there is nothing in the record

to suggest that Appellant was serving a mandatory sentence.       Appellant

pleaded guilty to six charges pursuant to a negotiated guilty plea, and

received the agreed-upon sentence of not less than ten nor more than

twenty years’ incarceration. (See N.T. Guilty Plea Hearing, 12/21/12, at 3-

4, 11-12; N.T. Sentencing, 2/04/13, at 2-6). He also received a consecutive

term of not less than one nor more than two years’ incarceration for a

probation violation. (See N.T. Sentencing, 2/04/13, at 10). Therefore, the

holding of Alleyne does not apply to Appellant’s case.

     Moreover, in considering whether Alleyne provides an exception to

the PCRA time-bar, this Court has observed that:

           Even assuming that Alleyne did announce a new
     constitutional right, neither our Supreme Court, nor the United
     States Supreme Court has held that Alleyne is to be applied
     retroactively to cases in which the judgment of sentence had

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       become final. This is fatal to Appellant’s argument regarding the
       PCRA time-bar.

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations

and footnote omitted); see also Commonwealth v. Riggle, 119 A.3d

1058, 1067 (Pa. Super. 2015) (holding “Alleyne is not entitled to

retroactive effect in th[e] PCRA setting.”).

       Therefore, even if he were serving a mandatory sentence, Appellant’s

reliance on Alleyne would be fatal to his claim. See Miller, supra at 995.

Hence, because Appellant failed to plead and prove the applicability of a

PCRA timeliness exception, we conclude that the PCRA court properly

dismissed his untimely petition without a hearing on the basis that it lacked

jurisdiction. See Johnston, supra at 1126.6

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/4/2016
____________________________________________


6
  To the extent that Appellant attempts to argue that his issue is a non-
waivable legality of sentence issue, (see Appellant’s Brief, at 7), we
observe: “[T]hough not technically waivable, a legality of sentence claim
may nevertheless be lost should it be raised . . . in an untimely PCRA
petition for which no time-bar exception applies, thus depriving the [C]ourt
of jurisdiction over the claim. . . .” Miller, supra at 995 (citation omitted).
Therefore, Appellant’s argument in this regard lacks merit.



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