J-S37024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ELMER WILLIAMS,

                            Appellant                 No. 1492 WDA 2015


               Appeal from the PCRA Order September 14, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002530-2003


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED AUGUST 11, 2016

       Appellant, Elmer Williams, appeals from the order denying his serial

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

       In July of 2003, Appellant was charged with two counts each of rape,

statutory sexual assault, indecent assault, and sexual assault, and one count

each of corruption of a minor and endangering the welfare of a child,

offenses committed against his thirteen-year–old step-daughter.1              On

November 6, 2003, Appellant entered a negotiated guilty plea to one count

each of rape, corruption of minors, and endangering the welfare of children.

N.T., 11/6/03, at 8.         On February 13, 2004, the trial court sentenced
____________________________________________


1
    The facts of the underlying convictions are not relevant to our disposition.
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Appellant to eight to sixteen years of imprisonment for rape; two to four

years for endangering the welfare of a child, consecutive to the sentence for

rape; and sixteen months to four years of imprisonment for corruption of a

minor, to be served consecutively to the sentence for endangering the

welfare of a child. N.T., 2/13/04, at 27—28. The trial court then ordered

the remainder of the charges to be nol prossed.         On February 23, 2004,

Appellant filed a motion to modify or reconsider his sentence, which the trial

court denied. Appellant did not file a direct appeal.

       This Court previously termed Appellant a “frequent flier” based upon

his myriad petitions filed pursuant to the PCRA.          Commonwealth v.

Williams, 405 WDA 2012, 62 A.3d 458 (Pa. Super. filed October 17, 2012)

(unpublished memorandum at 3). Indeed, we noted therein that “Appellant

has so abused the system that the trial court directed the Prothonotary to

neither file nor docket any further motions or petitions filed by Appellant

pertaining to this case,” presumably without leave of court. Id. at 3 n.2.2

       This Court affirmed denials of PCRA petitions filed by Appellant on at

least four prior occasions.       See Commonwealth v. Williams, 1513 WDA

2004, 876 A.2d 472 (Pa. Super. filed April 4, 2005) (unpublished

memorandum); Commonwealth v. Williams, 1045 WDA 2008 (Pa. Super.

filed February 10, 2009) (judgment order); Commonwealth v. Williams,
____________________________________________


2
   That directive apparently has been ignored.           PCRA Court Opinion,
10/20/15, at 5.



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729 WDA 2009, 991 A.2d 364 (Pa. Super. filed March 2, 2010) (unpublished

memorandum); and Commonwealth v. Williams, 405 WDA 2012, 62 A.3d

458 (Pa. Super. filed October 17, 2012) (unpublished memorandum).

      Appellant, pro se, filed the instant PCRA petition on August 17, 2015.

The PCRA court denied it as untimely on September 13, 2015.          Appellant

filed a timely notice of appeal, and both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

         1. Whether the PCRA court committed reversible error by
            dismissing [A]ppellant’s PCRA petition as untimely?

         2. Whether the PCRA court committed a manifest injustice by
            upholding the illegal sentence that’s imposed upon the
            [A]ppellant?

Appellant’s Brief at 4.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

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1084 (Pa. Super. 2014).      “There is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.”     Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008) (citing Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super.

2003)). “[S]uch a decision is within the discretion of the PCRA court and will

not be overturned absent an abuse of discretion.”         Commonwealth v.

Mason, 130 A.3d 601, 617 (Pa. 2015).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “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.”              42 Pa.C.S.

§ 9545(b)(3).

      Our review of the record reflects that Appellant’s judgment of sentence

became final on March 25, 2004, thirty days after the trial court denied

Appellant’s post-sentence motion on February 24, 2004, and Appellant failed




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to file a direct appeal with this Court.3 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.

903(a). Thus, a timely PCRA petition had to have been filed by March 25,

2005. Because Appellant did not file the instant PCRA petition until August

17, 2015, it is patently untimely.

       As noted, the PCRA court dismissed the petition as untimely.

Nevertheless, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.4 “However, the PCRA limits the reach of the exceptions by

providing that a petition invoking any of the exceptions must be filed within

60    days of the       date   the   claim first could have   been presented.”
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3
    The year 2004 was a leap year.
4
    The exceptions to the timeliness requirement are:

       (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), (ii), and (iii).




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Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citing

Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa. Super. 2011), and

42 Pa.C.S. § 9545(b)(2)).

      Appellant challenged the legality of his sentence in his PCRA petition

and his brief to this Court. Herein, he inartfully attempts to invoke the time-

bar exception under Section 9545(b)(1)(iii), relying on Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015), and Alleyne v. United States, ___

U.S. ___, 133 S.Ct. 2151 (2013). Appellant’s Brief at 10. Thus, Appellant’s

citations   may    be   characterized    as   an   attempt   to   assert   the   “new

constitutional right” exception to the PCRA time-bar based on Alleyne.

      Appellant avers that Hopkins is controlling authority.           In Hopkins,

our Supreme Court held that 18 Pa.C.S. § 6317, which imposed a mandatory

minimum sentence for a drug sale or possession-with-intent-to-deliver

charge within 1,000 feet of a school, was unconstitutional. Appellant fails to

explain why Hopkins controls his mandatory sentence, whose source he

fails to identify, although it appears to have been imposed pursuant to 42

Pa.C.S. § 9718.      This defect, alone, is noteworthy; Appellant’s failure to

connect Hopkins to his case prevents him from relying on the date of

Hopkins     for    purposes   of   the   sixty-day   rule    under   42    Pa.C.S.   §

9545(b)(1)(iii).    Appellant’s reliance on Hopkins, therefore, is misplaced.

Appellant’s Brief at 8.




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     Hopkins relied upon Alleyne, which is the seminal case cited by

Appellant.   Appellant’s Brief at 8–10.   This Court explained the ruling and

impact of Alleyne in Commonwealth v. Riggle, 119 A.3d 1058 (Pa.

Super. 2015), as follows:

     In Alleyne, the Supreme Court held that the constitutional jury
     trial right requires any fact, other than a prior conviction, that
     triggers a mandatory minimum sentence to be proven beyond a
     reasonable doubt before the finder of fact.        Alleyne is an
     application of the Court’s prior pronouncement in Apprendi v.
     New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
     (2000), which ruled that any fact that increases a maximum
     sentence must be found by the factfinder beyond a reasonable
     doubt or admitted by the defendant during his guilty plea. In
     Alleyne, the United States Supreme Court expressly overruled
     Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
     L.Ed.2d 524 (2002), which held that a fact that involves a
     mandatory minimum sentence does not implicate jury trial
     rights.     Alleyne also implicitly abrogated McMillan v.
     Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67
     (1986), which withstood an Apprendi attack in the Harris
     decision.

           In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
     2014) (relying upon Commonwealth v. Watley, 81 A.3d 108,
     118 (Pa. Super. 2013) (en banc)), we noted that Alleyne will be
     applied to cases pending on direct appeal when Alleyne was
     issued.

Riggle, 119 A.3d at 1064 (emphasis added).

     Alleyne was decided on June 17, 2013. Appellant filed this fifth PCRA

petition on August 17, 2015, well more than sixty days, indeed two years

after, the date the claim could have been presented. See Commonwealth

v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard

to [a newly] recognized constitutional right, this Court has held that the


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sixty-day period begins to run upon the date of the underlying judicial

decision.”).   Therefore, Appellant cannot avail himself of 42 Pa.C.S. §

9545(b)(1)(iii).

      Furthermore, while this Court has held that Alleyne applies to cases

that were on direct appeal when Alleyne was issued, we have declined to

construe that decision as applying retroactively to cases time-barred under

the PCRA.      See, e.g., Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa.

Super. 2015), where we stated:

      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.

      Thus, we conclude that the common pleas court was without

jurisdiction to grant relief in this matter, and it properly dismissed

Appellant’s fifth PCRA petition as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




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