J-S46011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THEODORE RIDGEWAY,

                            Appellant                No. 3339 EDA 2015


             Appeal from the PCRA Order Entered October 8, 2015
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0460791-2002
                           CP-51-CR-0407611-2002
                           CP-51-CR-0407671-2002
                           CP-51-CR-0512841-2002
                           CP-51-CR-0801481-2002


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 15, 2016

        Appellant, Theodore Ridgeway, appeals pro se from the post-

conviction court’s October 8, 2015 order denying, as untimely, his petition

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

        Following Appellant’s involvement in a 2002 armed robbery spree that

lasted several months, a jury convicted him of numerous counts of various

offenses, including robbery, conspiracy, possessing an instrument of crime,

and carrying a firearm without a license. Appellant was sentenced on March
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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17, 2004, to an aggregate term of 115½ to 231 years’ incarceration.              On

August 24, 2005, this Court affirmed Appellant’s judgment of sentence and

our Supreme Court denied his subsequent petition for allowance of appeal on

April 4, 2006.   Commonwealth v. Ridgeway, 885 A.2d 584 (Pa. Super.

2005) (unpublished memorandum), appeal denied, 895 A.2d 1260 (Pa.

2006).    Thus, Appellant’s judgment of sentence became final on July 3,

2006, at the expiration of the 90-day time-period for seeking review with the

United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating that a

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Commonwealth v. Owens,

718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,

petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court).

     Appellant filed his first, pro se PCRA petition on March 16, 2007. After

that petition was denied by the PCRA court, this Court affirmed, and our

Supreme    Court   denied   Appellant’s    petition   for   allowance   of   appeal.

Commonwealth        v.   Ridgeway,        40   A.3d   180    (Pa.   Super.    2011)

(unpublished memorandum), appeal denied, 47 A.3d 846 (Pa. 2012).

     Appellant filed a second, pro se PCRA petition, which underlies the

present appeal, on July 2, 2015. On August 19, 2015, the PCRA court issued

notice of its intent to dismiss the petition in accordance with Pa.R.Crim.P.

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907. Appellant filed a pro se response, but on October 8, 2015, the court

issued an order denying his petition as being untimely filed. Appellant filed a

timely notice of appeal. While the PCRA court did not direct Appellant to file

a Pa.R.A.P. 1925(b) statement, the court issued an opinion on December 14,

2015. Herein, Appellant presents two questions for our review:

      1. Whether the PCRA court abused its discretion in denying [the]
      PCRA [p]etition as untimely in light of this Court[’s] decision
      declaring mandatory minimum [sentencing] statutes in
      Pennsylvania facially unconstitutional in their entirety[,] which
      implicate[s] the legality of Appellant’s sentence of [115½ to 231]
      years in prison?

      2. Whether this Court will raise sua sponte legality of sentence
      questions concerning Appellant’s illegal[,] unconstitutional
      sentence of [115½ to 231] years in prison due to the application
      of the mandatory minimum [sentencing] statutes?

Appellant’s Brief at 3.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by examining the

timeliness of Appellant’s petition, as the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition.     Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including

a second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

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      (b) Time for filing petition.--

           (1) Any petition under this subchapter, including a second
           or subsequent petition, shall be filed within one year of the
           date the judgment becomes final, unless the petition
           alleges and the petitioner proves that:

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

42 Pa.C.S. § 9545(b)(1)(i)-(iii).    Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

      Here, Appellant’s judgment of sentence became final on July 3, 2006,

and thus, his petition filed in July of 2015 is patently untimely under section

9545(b)(1). Consequently, for this Court to have jurisdiction to review the

merits of Appellant’s underlying claims, he must prove that he meets one of

the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §

9545(b).

      In this regard, Appellant does not explicitly state what exception he is

attempting to plead and prove.           Instead, he argues that mandatory

minimum sentences imposed in his case, under 42 Pa.C.S. § 9712.1, are


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illegal in light of Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013)

(holding that “facts that increase mandatory minimum sentences must be

submitted to the jury” and “found beyond a reasonable doubt”), and

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

(holding that 42 Pa.C.S. § 9712.1 is unconstitutional, in its entirety, in light

of Alleyne).   Appellant contends that this Court always has jurisdiction to

correct an illegal sentence and, thus, we must do so in his case.

       Preliminarily, we acknowledge that “[i]f no statutory authorization

exists for a particular sentence, that sentence is illegal and subject to

correction.”   Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.

2014) (citation omitted).   Arguably, then, Appellant’s mandatory minimum

sentences, imposed under a now-unconstitutional sentencing statute, are

illegal.

       However, because Appellant’s PCRA petition is untimely, we do not

have jurisdiction to correct those illegal sentences unless he pleads and

proves the applicability of one of the above-stated timeliness exceptions.

See Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999) (“[A]lthough a

legality of sentence is always subject to review within the PCRA, claims must

first satisfy the PCRA’s time limits or one of the exceptions thereto.”);

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (“[A]

court may entertain a challenge to the legality of the sentence so long as the

court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is

tied to the filing of a timely PCRA petition.”).      Presumably, Appellant’s

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reliance on Alleyne and/or Newman is an effort to satisfy the ‘new

constitutional right’ exception of section 9545(b)(1)(iii). His attempt to do

so, however, fails outright because Alleyne was decided on June 17, 2013,

and Newman was decided on August 20, 2014. Appellant’s petition was not

filed until July 2, 2015, and, therefore, he clearly has not satisfied the 60-

day requirement of section 9545(b)(2).

      Nevertheless, we also note that Appellant’s reliance on Alleyne and/or

Newman cannot satisfy the ‘new constitutional right’ exception of section

9545(b)(1)(iii).    In Commonwealth v. Abul-Salaam, 812 A.2d 487 (Pa.

2002), our Supreme Court stated:

      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 this court 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. The language “has been held” is in
      the past tense. These words mean that the action has already
      occurred, i.e., “that court” has already held the new
      constitutional right to be retroactive to cases on collateral
      review. By employing the past tense in writing this provision, the
      legislature clearly intended that the right was already recognized
      at the time the petition was filed.

Id. at 501.

      Clearly,     Newman   cannot   satisfy   the   requirements   of   section

9545(b)(1)(iii), as it was not a decision by the United States Supreme Court

or the Pennsylvania Supreme Court (and, in any event, it did not announce a

new constitutional right). Moreover, in Commonwealth v. Miller, 102 A.3d


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988 (Pa. Super. 2014), this Court ruled that Alleyne does not meet the

second requirement of section 9545(b)(1)(iii), stating:

       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
       become final. This is fatal to Appellant's argument regarding the
       PCRA time-bar. This Court has recognized that a new rule of
       constitutional law is applied retroactively to cases on collateral
       review only if the United States Supreme Court or our Supreme
       Court specifically holds it to be retroactively applicable to those
       cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
       Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
       citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
       L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor,
       933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes
       of subsection (iii), the language ‘has been held by that court to
       apply retroactively’ means the court announcing the rule must
       have also ruled on the retroactivity of the new constitutional
       right, before the petitioner can assert retroactive application of
       the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715,
       951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy
       the new constitutional right exception to the time-bar.

Id. at 995. Since Miller, neither our Supreme Court, nor the United States

Supreme Court, has held that Alleyne applies retroactively.1 Thus, Alleyne

cannot be the basis for application of the timeliness exception of section

9545(b)(1)(iii).
____________________________________________


1
  Indeed, in the recent decision of Commonwealth v. Washington, __
A.3d __, 2016 WL 3909088 (Pa. filed July 19, 2016) (No. 37 EAP 2015), our
Supreme Court held that Alleyne does not apply retroactively to collateral
attacks on mandatory minimum sentences. However, if at some point the
United States Supreme Court holds that Alleyne does apply retroactively to
collateral review, Appellant may file a PCRA petition, within 60 days of that
decision, asserting the timeliness exception of section 9545(b)(1)(iii).



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      In sum, because Appellant’s PCRA petition is untimely, and he has not

satisfied a timeliness exception, we are constrained to conclude that we do

not have jurisdiction to correct his illegal sentences. See Fahy, 737 A.2d at

222; Fowler, 930 A.2d at 592. Thus, we affirm the PCRA court’s denial of

Appellant’s untimely petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2016




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