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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                 v.                     :
                                        :
MARK ANTHONY EDWARDS,                   :
                                        :
                                        :
                       Appellant        :     No. 3067 EDA 2016

             Appeal from the PCRA Order September 12, 2016
           In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-0004323-2008

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                          FILED MARCH 27, 2017

     Appellant, Mark Anthony Edwards, appeals pro se from the Order

entered in the Montgomery County Court of Common Pleas dismissing his

second Petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546, as untimely. After careful review, we affirm.

     On January 15, 2009, Appellant entered an open guilty plea to

Involuntary Deviate Sexual Intercourse, victim less than sixteen years of

age; Aggravated Indecent Assault, victim less than thirteen years of age;

and two counts of Endangering the Welfare of a Child.1      The trial court

sentenced Appellant to an aggregate term of 11½ to 27 years of

1
  18 Pa.C.S. §§ 3123(a)(7), 3125(a)(7), and 4304, respectively. Appellant’s
offenses occurred over a one-year period and involved multiple assaults on
the two minor daughters of his girlfriend, with whom he was then living. At
the time, the victims were twelve and fifteen years of age.
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imprisonment,     which   included   a   then-applicable   mandatory   minimum

sentence.

        This Court affirmed the Judgment of Sentence on December 8, 2010.

Commonwealth v. Edwards, 23 A.3d 572 (Pa. Super. 2010) (unpublished

memorandum). Appellant did not seek review by the Pennsylvania Supreme

Court.    Therefore, his Judgment of Sentence became final on January 7,

2011, when the time for filing a petition for allowance of appeal to the

Pennsylvania Supreme Court expired.            See Pa.R.A.P. 1113; 42 Pa.C.S. §

9545(b)(3).

        On May 13, 2011 Appellant filed a timely pro se PCRA Petition.

Following the appointment of counsel and an independent review of the

record, the PCRA court dismissed Appellant’s first PCRA Petition without a

hearing on August 3, 2011. This Court affirmed the dismissal on July 11,

2012, and our Supreme Court denied allowance of appeal on December 26,

2012.     Commonwealth v. Edwards, 55 A.3d 131 (Pa. Super. 2012),

appeal denied, 619 A.3d 671 (Pa. 2012). Appellant did not seek review by

the U.S. Supreme Court.

        Appellant filed the instant pro se PCRA Petition, his second, on August

4, 2016, raising an Alleyne claim.2 Appellant did not acknowledge the facial


2
  Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013), held that, other
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory minimum must be submitted to a jury
and proved beyond a reasonable doubt.           Id., 133 S.Ct. at 2160-61.



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untimeliness of his Petition, or invoke any exception to the timeliness

requirement.

      On August 16, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition.   Appellant filed a

response on September 7, 2016, repeating his illegal sentencing claim. On

September 13, 2016, the PCRA court dismissed Appellant’s Petition without a

hearing, concluding it lacked jurisdiction to consider Appellant’s underlying

claim because the Petition was untimely and Appellant had failed to plead

and prove any one of the timeliness exceptions provided in 42 Pa.C.S.§

9545(b)(1).

      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

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

      Appellant presents two issues for our review:

      1. Does the PA Supreme Courts [sic] decision in
      Commonwealth v. Wolfe[,] 106 A.3d 800 (Pa. 2016) make the
      appellant’s sentence unconstitutional and illegal?

      2. Does appellant’s PCRA fall under any of the exceptions to the
      time bar?

Appellant’s Brief at 3 (unpaginated).

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise



Appellant also invoked Commonwealth v. Wolfe, 106 A.3d 800 (Pa. 2016),
which held that mandatory minimum sentence imposed pursuant to 42
Pa.C.S. § 9718 for offenses against infant persons are unconstitutional.



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free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

      Here, Appellant filed the instant PCRA Petition more than four years

after his Judgment of Sentence became final.      The PCRA court properly

concluded that Appellant’s Petition is facially untimely. PCRA Court Opinion,

filed 10/31/16, at 3-5.




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     Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

     (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.

     (2) Any petition invoking an exception provided in paragraph (1)
     shall be filed within 60 days of the date the claim could have
     been presented.

42 Pa.C.S. § 9545(b)(1)-(2).

     In the instant case, Appellant has not even attempted to plead or

prove the applicability of any of the three statutory timeliness exceptions in




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his Brief to this Court.3 He merely asserts that this Court “has repeatedly

stated that the court can/should correct illegal sentences regardless of

time.” Appellant’s Brief at 5 (unpaginated). Appellant is incorrect.

      As long as this Court has jurisdiction over the matter, a legality of

sentencing issue is reviewable and cannot be waived. Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).            However, a legality of

sentencing issue must be raised in a timely filed PCRA Petition over which

we have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto.”); Commonwealth v. Riggle,

119 A.3d 1058, 1064-67 (Pa. Super. 2015); Commonwealth v. Miller, 102

A.3d 988, 995-96 (Pa. Super. 2014) (explaining that the decision in Alleyne

does not invalidate a mandatory minimum sentence when presented in an

untimely PCRA Petition); Commonwealth v. Ruiz, 131 A.3d 54, 56 (Pa.

Super. 2015) (remanding for resentencing without mandatory minimum

where defendant was sentenced 12 days before Alleyne, his judgment of

sentence was not final on the date Alleyne was decided, and the defendant

filed a timely PCRA Petition over which this Court had jurisdiction).



3
  Appellant also failed to plead any timeliness exception in his PCRA Petition,
although he did attempt to invoke the newly-recognized constitutional right
exception in his response to the PCRA court’s Pa.R.Crim.P. 907 Notice.



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        Our Supreme Court has recently reiterated that Alleyne does not

apply     retroactively   on    post-conviction    collateral   review.    See

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

        Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely.       See

PCRA Court Opinion, filed 10/31/16, at 3-7. We, thus, affirm the denial of

PCRA relief.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/27/2017




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