J-S77014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM RICHARD ALLEN,

                            Appellant                  No. 970 MDA 2017


              Appeal from the PCRA Order Entered May 17, 2017
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004008-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 02, 2018

        Appellant, William Richard Allen, appeals pro se from the post-

conviction court’s May 17, 2017 order denying, as untimely, his petition

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

affirm.

        Briefly, on December 7, 2009, Appellant pled guilty to various

offenses, including possession with intent to deliver a controlled substance

and possession of a firearm by a person prohibited. That same day, he was

sentenced to an aggregate term of 5 to 10 years’ incarceration. Appellant

did not file a direct appeal and, thus, his judgment of sentence became final

on January 6, 2010.           See 42 Pa.C.S. § 9545(b)(3) (directing that a

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Pa.R.A.P. 903(a) (stating that

a notice of appeal to Superior Court must be filed within 30 days after the

entry of the order from which the appeal is taken).

      On June 15, 2016, Appellant filed the pro se PCRA petition underlying

the present appeal. The PCRA court appointed counsel who filed a motion to

withdraw on July 22, 2016.     However, Appellant filed a pro se response,

alleging that counsel had failed to satisfy the requirements for withdrawal

set forth in Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

Ultimately, the court denied counsel’s motion to withdraw and directed

counsel to review Appellant’s pro se petition to ascertain if he could satisfy

any exception to the PCRA’s one-year time-bar.

      On October 17, 2016, counsel filed another motion to withdraw, which

addressed the timeliness issue as directed by the court.     On November 7,

2016, Appellant filed a pro se response. However, on April 19, 2017, the

PCRA court issued an order granting counsel’s petition to withdraw and

notifying Appellant of its intent to dismiss his petition without a hearing, as

required by Pa.R.Crim.P. 907.       Appellant filed a pro se response to the

court’s Rule 907 notice, but on May 17, 2017, the court entered an order

denying his petition as untimely.

      Appellant filed a timely, pro se notice of appeal, and he also timely

complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement.

Herein, he presents one issue for our review: “Does the denying of PCRA

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relief despite a patent illegality of Appellant’s sentence deprive him of the

right to substantive due process?” Appellant’s Brief at 4.

      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 addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    See 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:

      (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


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            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 in January of

2010, making his petition filed in June of 2016 patently untimely.

Accordingly, for this Court to have jurisdiction to review the merits of his

claim, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b). This is true even

though Appellant challenges the legality of his sentence. Commonwealth

v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that claims challenging the

legality of sentence are subject to review within PCRA, but must first satisfy

the PCRA’s time limits).

      Instantly, Appellant argues that a mandatory minimum sentence

imposed in this case is illegal under Alleyne v. United States, 133 S.Ct.

2151 (2013). There, the United States Supreme Court held that “facts that

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

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Appellant

claims that Alleyne satisfies the ‘new constitutional right’ exception of

section 9545(b)(1)(iii). However, our Supreme Court has expressly declared

that Alleyne does not apply retroactively to collateral attacks on mandatory

minimum sentences. Commonwealth v. Washington, 142 A.3d 810 (Pa.


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2016). Therefore, Appellant cannot rely on Alleyne to meet the timeliness

exception of section 9545(b)(1)(iii), and the PCRA court did not err in

denying his untimely petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/18




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