J-A31040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

THEODORE J. CASH,

                            Appellant                   No. 953 MDA 2015


                    Appeal from the PCRA Order May 5, 2015
                in the Court of Common Pleas of Franklin County
               Criminal Division at No.: CP-28-MD-0000682-1991


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED JANUARY 07, 2016

        Appellant, Theodore J. Cash, appeals pro se from the order dismissing

his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.1 We affirm.

        We take the relevant facts and procedural history from the PCRA

court’s June 23, 2015 opinion and our independent review of the record. On

October 23, 1992, a jury found Appellant guilty of possession with intent to

deliver a controlled substance.2         On September 22, 1993, the trial court

sentenced him to a term of not less than three nor more than ten years’
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The PCRA court’s order was dated May 4, 2015, but was filed on May 5,
2015. We have amended the caption accordingly.
2
    35 P.S. § 780-113(a)(30).
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incarceration.3      The minimum term of incarceration imposed was the

statutory minimum pursuant to 18 Pa.C.S.A. § 7508. Appellant did not file a

direct appeal.

       On August 6, 2014, Appellant, acting pro se, filed the instant PCRA

petition, claiming that his sentence is illegal based on the United States

Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151,

2155 (2013) (holding that facts that increase mandatory minimum sentence

are elements of offense and must be submitted to jury and proven beyond

reasonable doubt). (See PCRA Petition, 8/06/14, at 3-4).4 The PCRA court

appointed counsel to represent Appellant on August 21, 2014. On October

17, 2014, counsel petitioned to withdraw his appearance and filed a

Turner/Finley5 “no merit” letter.              On October 28, 2014, the PCRA court

entered an order granting counsel’s petition to withdraw and notifying

Appellant of its intent to dismiss the PCRA petition without a hearing. 6

____________________________________________


3
  The record reflects that Appellant is still serving his sentence in this
matter. (See PCRA Court Opinion, 6/23/15, at 2). Appellant’s maximum
date of incarceration in this case is December 22, 2016.             (See
Turner/Finley letter, 10/17/14, at unnumbered pages 1, 3).
4
   The sentencing scheme set forth in section 7508 has been held
unconstitutional in light of Alleyne, supra. See Commonwealth v.
Mosley, 114 A.3d 1072, 1087 (Pa. Super. 2015); Commonwealth v.
Cardwell, 105 A.3d 748, 754-55 (Pa. Super. 2014), appeal denied, 121
A.3d 494 (Pa. 2015).
5
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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Appellant did not respond.          On May 5, 2015, the court entered its order

dismissing Appellant’s PCRA petition. This timely appeal followed.7

        Appellant raises the following issues for our review:

        I. Did the [PCRA] court                  properly   review   and   address
        [Appellant’s] PCRA petition?

        II. Did the [PCRA] court properly dismiss [Appellant’s] PCRA
        petition without a hearing?

        III. Did the [PCRA] court error [sic] when it allowed [counsel] to
        withdraw as counsel of record?

(Appellant’s Brief, at 3).

              We begin by noting our well-settled standard of review. In
        reviewing the denial of PCRA relief, we examine whether the
        PCRA court’s determination is supported by the record and free
        of legal error. The scope of review is limited to the findings of
        the PCRA court and the evidence of record, viewed in the light
        most favorable to the prevailing party at the trial level. It is
        well-settled that a PCRA court’s credibility determinations are
        binding upon an appellate court so long as they are supported by
        the record. However, this Court reviews the PCRA court’s legal
        conclusions de novo.

               We also note that a PCRA petitioner is not automatically
        entitled to an evidentiary hearing. We review the PCRA court’s
        decision dismissing a petition without a hearing for an abuse of
        discretion.

                       _______________________
(Footnote Continued)


6
    See Pa.R.Crim.P. 907(1).
7
  Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on June 17, 2015. See
Pa.R.A.P. 1925(b). The PCRA court entered an opinion on June 23, 2015.
See Pa.R.A.P. 1925(a).



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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

       “[W]e must first consider the timeliness of Appellant’s PCRA petition

because it implicates the jurisdiction of this Court and the PCRA court.” Id.

(citation omitted).

       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,[8] 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
       [the Pennsylvania Supreme] 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. . . .

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

and footnote omitted).

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

22, 1993, thirty days after the trial court imposed its sentence and his time

for filing a direct appeal expired.            See Pa.R.A.P. 903(a); 42 Pa.C.S.A. §

____________________________________________


8
  In cases where the petitioner’s judgment of sentence became final prior to
the effective date of the 1995 amendments to the PCRA, the petition is
deemed timely if it was filed within one year of the effective date of the
amendments, specifically, by January 16, 1997. See Commonwealth v.
Voss, 838 A.2d 795, 799 (Pa. Super. 2003).



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9545(b)(3). Because Appellant’s judgment of sentence became final before

the effective date of the 1995 PCRA amendments, the operative deadline for

filing his petition was January 16, 1997.        See Voss, supra at 799.

Therefore, Appellant’s instant petition, filed on August 6, 2014, 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 42

Pa.C.S.A. § 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
      this section and has been held by that court to apply
      retroactively.

Id. “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). In

addition, a PCRA petition invoking one of these statutory exceptions must


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“be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

      Here, Appellant claims the benefit of a newly-recognized retroactively-

applied constitutional right to relief predicated on the United States Supreme

Court’s decision in Alleyne, supra.      (See Appellant’s Brief, at 4-8); see

also 42 Pa.C.S.A. § 9545(b)(1)(iii).        He asserts that Alleyne applies

retroactively to this case, and his illegal sentence must be corrected. (See

Appellant’s Brief, at 4-8). We disagree.

      Instructive to the instant case is this Court’s decision in Miller, supra,

in which the appellant argued the applicability of section 9545(b)(1)(iii) to

his patently untimely PCRA petition.           See Miller, supra, at 993.

Specifically, the appellant averred that the Alleyne decision announced a

new constitutional right that applies retroactively to cases on collateral

review. See id. at 993-94. The Miller Court disagreed, explaining:

            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.    Therefore, Appellant has failed to satisfy the new
      constitutional right exception to the time-bar.

            We are aware that an issue pertaining to Alleyne goes to
      the legality of the sentence. It is generally true that this Court is
      endowed with the ability to consider an issue of illegality of
      sentence sua sponte. However, in order for this Court to review

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       a legality of sentence claim, there must be a basis for our
       jurisdiction to engage in such review. As this Court recently
       noted, [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 court of jurisdiction over the claim. As a
       result, the PCRA court lacked jurisdiction to consider the merits
       of Appellant’s second PCRA petition, as it was untimely filed and
       no exception was proven.

Id. at 995-96 (quotation marks, footnote, and citations omitted).

       In the instant case, although Appellant claims a right to relief based on

Alleyne, neither the United States Supreme Court nor our Supreme Court

has held that Alleyne applies retroactively to cases on collateral review.

See id. at 995. “This is fatal to Appellant’s argument regarding the PCRA

time-bar.” Id. Therefore, Appellant has not met his burden of proving his

untimely petition fits within one of the three exceptions to the PCRA’s

jurisdictional   time-bar.       See id.;      see also Jones,   supra   at   17.9

Accordingly, we conclude that the PCRA court properly dismissed Appellant’s

petition without a hearing because it is untimely with no exception to the

time-bar pleaded or proven. See Jackson, supra at 519.

       Order affirmed.




____________________________________________


9
  The United States Supreme Court decided Alleyne on June 17, 2013.
Appellant filed the instant PCRA petition more than a year later, on August 6,
2014. Therefore, Appellant has failed to comply with the PCRA’s sixty-day
rule. See 42 Pa.C.S.A. § 9545(b)(2). Appellant’s petition would fail for this
reason as well.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2016




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