J-S64024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

KYLE KRIDER

                            Appellant                     No. 72 EDA 2016


             Appeal from the PCRA Order Dated December 16, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0007239-2009

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                             FILED OCTOBER 21, 2016


        Appellant, Kyle Krider, appeals pro se from the order dismissing as

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

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On March 26, 2010, following a jury trial, Appellant was convicted of

burglarizing the home of Jenna Helmuth in Wallingford in the early morning

hours of September 16, 2009.1 On May 20, 2010, Appellant was sentenced

to 10-20 years’ incarceration.          On July 28, 2010, the Trial Court denied
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. § 3502(a). Police apprehended Appellant that evening. They
found several of Helmuth’s possessions in his pockets. See PCRA Court
Opinion, 4/15/16, at 1-2.
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Appellant’s motion for reconsideration of sentence. Appellant filed a timely

appeal, and this Court affirmed his judgment of sentence on February 8,

2012. Commonwealth v. Krider, No. 2442 EDA 2010 (Pa. Super. Feb. 8,

2012) (unpublished memorandum).

       Appellant has twice before unsuccessfully sought post-conviction relief

in PCRA petitions, most recently in 2014. Appellant filed the instant PCRA

petition, his third, pro se on February 24, 2015, generally to assert

ineffective assistance of counsel with regard to the sentence he received.2

       On April 14, 2015, the PCRA court notified Appellant, pursuant to

Pa.R.Crim.P. 907(1), that his PCRA petition would be dismissed on the basis

of untimeliness unless a response was filed within twenty (20) days. Rule

907(1) Notice, 4/14/15. On April 22, 2015, Appellant filed a pro se response

contending that his petition was timely, “because the court retains its

inherent power to correct an illegal sentence.” Appeal for Intent to Dismiss,

at 2. By order entered December 16, 2015, the PCRA court stated, “upon

consideration of [Appellant’s] Motion for Post Conviction Relief, and the court

concluding that it has no jurisdiction over the petition and following the
____________________________________________


2
  While Appellant’s PCRA petition is time-stamped March 2, 2015, the
petition itself is dated February 24, 2015. Accordingly, we conclude that,
pursuant to the “prisoner mailbox rule,” Appellant filed his PCRA petition on
February 24, 2015. See Commonwealth v. Wilson, 911 A.2d 942, 944
(Pa. Super. 2006) (recognizing that under the “prisoner mailbox rule” a
document is deemed filed when placed in the hands of prison authorities for
mailing).


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court’s notice of intent to dismiss and the Petitioner’s responses thereto, the

court hereby ORDERS and DECREES that the motion is DENIED.” PCRA

Court Order, 12/16/15 (emphasis in original).                In its opinion, the court

reiterated that Appellant’s petition is “patently untimely” and “does not fall

within any of the exceptions to the timeliness requirements under the

PCRA.” PCRA Court Opinion, 4/15/16, at 5-6. The PCRA court concluded,

“Ultimately,        the   untimeliness   of    Appellant’s   petition   precludes   any

consideration of his claims by this court.” Id. at 6.

       On December 22, 2015, Appellant filed a timely appeal, pro se, with

this Court.         Appellant’s pro se brief does not include a Statement of

Questions Involved pursuant to Pa.R.A.P. 2116.3 As questions that are not

identified     in     a    Statement     of    Questions     Involved    are   waived,

Commonwealth v. Bryant, 57 A.3d 191, 196 n.7 (Pa. Super. 2014), we

could affirm on the basis that Appellant preserved no issues for appellate

review.




____________________________________________


3
  The PCRA court did not order a statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Nevertheless, on April 29, 2016,
Appellant filed a Rule 1925(b) Statement in the lower court. That statement
cannot serve as a substitute for the Statement of Questions Involved that is
required under Rule 2116. See Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby”).


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        The PCRA court held, however, that it lacked jurisdiction to consider

any issues that Appellant sought to raise4 because Appellant failed to meet

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4
    In his petition, Appellant identified the following issues:

        ISSUE-(1). DEFENDANT SUBMITS AND MAINTAINS THAT HE
        WAS DENIED HIS SIXTH UNITED STATES CONSTITUTIONAL
        AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL
        COUNSEL FOR COUNSEL’S FAILURE IN NOT RAISING AN
        OBJECTION TO THE TRIAL COURT’S FOURTEENTH UNITED
        STATES CONSTITUTIONAL AMENDMENT RIGHT TO DUE
        PROCESS OF LAW FOR THE COURT’S FAILURE IN NOT GIVING
        ORAL AND WRITTEN NOTICE TO DEFENDANT THAT COURT
        INTENDED TO IMPOSE EXECUTION OF JUDGMENT OF SENTENCE
        UNDER (42 PA. C.S.A. § 9714), AND FOR THE TRIAL COURT’S
        FAILURE IN NOT CONDUCTING A MANDATORY SENTENCE
        HEARING AND FOR FAILURE IN NOT GIVING DEFENDANT THE
        RIGHT TO CONTEST THE MANDATORY SENTENCE.

        ISSUE-(2). DEFENDANT SUBMITS AND MAINTAINS THAT HE
        WAS DENIED HIS SIXTH UNITED STATES CONSTITUTIONAL
        AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL
        COUNSEL FOR COUNSEL’S FAILURE IN NOT RAISING AN
        OBJECTION TO THE TRIAL COURT’S UNCONSTITUTIONAL
        SENTENCE IN THAT THE MANDATORY MINIMUM AND MAXIMUM
        SENTENCE OF 10 TO 20 YEARS, ABSENT PROPER NOTIFICATION
        AND LACK OF A HEARING, ALLOWED THE TRIAL JUDGE TO
        DETERMINE WHETHER THE EVIDENCE TRIGGERS THE
        APPLICATION OF THE MANDATORY MINIMUM AND MAXIMUM
        SENTENCE,   THEREBY    VIOLATING   DEFENDANT’S   SIXTH
        AMENDMENT RIGHTS, AND RIGHT TO A TRIAL BY JURY
        PURSUANT TO ARTICLE I, SECTION IX, OF THE PENNSYLVANIA
        CONSTITUTION WHICH GUARANTEE DEFENDANT TO TRIAL BY
        JURY AND A DETERMINATION OF GUILT BEYOND A REASONABLE
        DOUBT IN VIOLATION OF DEFENDANT’S FOURTEENTH UNITED
        STATES CONSTITUTIONAL AMENDMENT RIGHT TO DUE
        PROCESS OF LAW.

PCRA Petition, 2/24/15, at 4(A).


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the jurisdictional deadlines in the PCRA. That holding by the PCRA court was

correct, and we affirm on that basis.

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d

185, 191-192 (Pa. Super. 2013) (citations omitted).

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges and the petitioner proves one of the three

exceptions to the time limitations for filing the petition set forth in Section

9545(b)(1) of the statute.         See 42 Pa.C.S. § 9545(b).5       A PCRA petition




____________________________________________


5
    The three exceptions to the timeliness requirement are:

           (i) the failure to raise the claim previously was the result
           of interference of 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.

(Footnote Continued Next Page)


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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.”           Hernandez, 79 A.3d at

651-652; see 42 Pa.C.S. § 9545(b)(2).             Asserted exceptions to the time

restrictions for the PCRA must be included in the petition and may not be

raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007).

      Here, Appellant’s judgment of sentence became final on March 9,

2012, when the 30-day time period for filing an allocatur petition with our

Supreme Court expired.          See 42 Pa.C.S. § 9545(b)(3).    As Appellant filed

the PCRA petition at issue here on February 24, 2015 — more than two

years after his judgment of sentence became final — it is patently untimely

unless he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies. See Hernandez, 79 A.3d at 651-652.

      In his PCRA petition, Appellant acknowledged the statutory time bar

and conceded that his petition was untimely if no exception applies. PCRA
                       _______________________
(Footnote Continued)

          (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).


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Petition, 2/24/15, at 3. However, Appellant averred that he fell within the

exception to the time bar under 42 Pa.C.S. § 9545(b)(1)(ii), which provides

that a petitioner may seek relief when 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.” PCRA Petition, 2/24/15, at 3.

When Appellant sought to articulate the “facts” that were “previously

unknown to [him],” however, he stated only that he “submits and maintains

his illegal sentence is non-waivable and can be raised at any time where

[Appellant] was denied Due Process of Law in the imposition of his

Mandatory minimum and maximum sentence under 42 Pa. C.S.A. § 9714.”

PCRA Petition, 2/24/15, at 3. His petition thus failed to allege any newly-

discovered facts.

       The PCRA court recognized that Appellant’s petition cited a number of

cases that Appellant appeared to be trying to use to invoke the PCRA’s third

exception, for “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.” See PCRA Court Opinion at 5-6.6 Appellant repeats many of

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6
 The PCRA court incorrectly identified this exception as falling under Section
9545(b)(1)(ii) of the PCRA, but the correct provision is 9545(b)(1)(iii). The
Supreme Court of Pennsylvania has held that any claim to a timeliness
exception based on new case law must meet the requirements of paragraph
(Footnote Continued Next Page)


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those citations in his brief to this Court. Nevertheless, a petition claiming

application of the “new constitutional right” exception (and the other two

exceptions as well) must be filed “within 60 days of the date the claims

could have been presented,” 42 Pa.C.S. § 9545(b)(2), and most of the court

decisions on which Appellant relies were filed well more than 60 days before

Appellant filed his petition.7

      As the PCRA court observed, Appellant’s main argument appears to be

that he received a mandatory minimum sentence that should be held invalid

under Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that a

mandatory minimum sentence is unconstitutional unless all facts that

increase the sentence are proven to a jury beyond a reasonable doubt. In

this Court, Appellant bolsters that argument by citing Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015), which examined the impact of Alleyne
                       _______________________
(Footnote Continued)

(iii) of this section of the PCRA, not paragraph (ii). See Commonwealth v.
Watts, 23 A.3d 980, 987 (Pa. 2011) (“subsequent decisional law does not
amount to a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA”).
7
  In his brief, Appellant cites the following U.S. and Pennsylvania Supreme
Court decisions: Alleyne v. United States, 133 S. Ct. 2151 (2013);
Commonwealth v. Fields, 107 A.3d 738 (Pa. 2014); Commonwealth v.
Vasquez, 744 A.2d 1280 (Pa. 2000); and Commonwealth v. Butler, 760
A.2d 384 (Pa. 2000). None of these cases was decided within 60 days prior
to when Appellant filed his February 24, 2015 petition. Appellant also cites
in his brief to Commonwealth v. Akbar, 111 A.3d 168 (Pa. 2015), and
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), each of which was
decided after Appellant filed his petition. Appellant raises no claim under
Akbar, which is not a decision recognizing a new constitutional right.
Appellant’s reliance on Hopkins fails for the reasons discussed in the text.


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on Pennsylvania’s mandatory sentencing statutes.                  But even if we assume

that Appellant’s claim under Hopkins would not be barred by Section

9545(b)(2)’s 60-day requirement, as Hopkins was decided after Appellant

filed his petition (although Appellant did not seek to amend his petition to

invoke    Hopkins),        Appellant’s   citation      to   Hopkins    still   cannot      cure

Appellant’s jurisdictional defect. This is because Alleyne and Hopkins have

not been held to apply retroactively to cases on collateral review. See

Commonwealth v. Washington, 142 A.3d 810, 818–819 (Pa. July 19,

2016).    Therefore, these cases do not qualify as decisions recognizing the

type of new constitutional right that gives rise to an exception to the

jurisdictional   time      requirements        in    the    PCRA.      See     42        Pa.C.S.

§ 9545(b)(1)(iii) (new constitutional right must have been “held by [the U.S.

Supreme      Court    or    the   Supreme           Court   of   Pennsylvania]      to    apply

retroactively”).8

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8
  In addition, as the trial court noted, PCRA Court Opinion at 1-2, 6,
Appellant was sentenced to a mandatory minimum sentence of ten years
because it was his second conviction for burglary, which the Sentencing
Code lists as a crime of violence. See 42 Pa.C.S. § 9714(a); see also id. §
9714(g) (defining “crime of violence” to include burglary). The courts of the
Commonwealth have taken the position that Alleyne does not require that a
prior conviction be proven before a jury to support a mandatory minimum
sentence. See Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.
2013) (en banc) (“[t]he 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
(Footnote Continued Next Page)


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          Based on the foregoing, the PCRA court correctly concluded that it

lacked jurisdiction to consider Appellant’s untimely PCRA petition.      We

therefore affirm the PCRA court’s order denying Appellant post-conviction

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/21/2016




                       _______________________
(Footnote Continued)

of the evidence standard” (emphasis added)); see also Apprendi v. N.J.,
530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt” (emphasis added)); Commonwealth v. Aponte, 855
A.2d 800, 804 (Pa. 2004).


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