J-S70017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

JOSEPH KWAHA

                            Appellant               No. 502 EDA 2016


                 Appeal from the PCRA Order January 21, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0008118-2007


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                          FILED OCTOBER 11, 2016

       Joseph Kwaha appeals pro se1 from the order entered January 21,

2016, in the Court of Common Pleas of Delaware County, dismissing,

without a hearing, his first petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Kwaha seeks relief

from the judgment of sentence of two to four years’ imprisonment imposed

in 2008,2 after he entered a negotiated guilty plea at Docket No. 8118-2007

____________________________________________


1
  Appointed counsel filed a Turner/Finley no-merit letter and the PCRA
court granted counsel’s petition for leave to withdraw from representation.
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
  In order to be eligible for PCRA relief, a petitioner must be “currently
serving a sentence of imprisonment, probation or parole for the crime[.]” 42
Pa.C.S. § 9543(a)(1)(i). The Commonwealth states in its brief:

(Footnote Continued Next Page)
J-S70017-16



to possession with intent to deliver (PWID), 35 P.S. § 780-113(a)(30).3

Kwaha contends the PCRA court erred in dismissing his PCRA petition

because he satisfied an exception to the PCRA time bar, and he is serving an

illegal sentence in light of the United States Supreme Court’s ruling in

Alleyne v. United States, 133 S. Ct. 2151 (2013) and the Pennsylvania

Supreme Court’s ruling in Commonwealth v. Hopkins, 117 A.3d 247 (Pa.

2015), and the United States Supreme Court’s ruling in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016).4 See Kwaha’s Brief at 4. Based upon

the following, we affirm.

                       _______________________
(Footnote Continued)

      The Commonwealth is not sure if [Kwaha] is still serving this
      sentence since the overall sentence of 2 years and 6 months less
      a day to 5 years less a day should have maxed out in the County
      prison system. [Kwaha] does appear to have other cases in the
      state system that may be the reason he is incarcerated in a state
      facility. However, since the trial court did not deny the petition
      on this basis, there is no record on this issue.

Commonwealth Brief at 2 n.1.
3
  As part of the same negotiated plea agreement, Kwaha also pled guilty at
Docket No. 8167-2007 to fleeing or attempting to elude police officer, 75
Pa.C.S. § 3733. The aggregate sentence imposed by the court was a two to
four year term of imprisonment at Docket No. 8118-2007, and a six months
less one day to 12 months less one day term of imprisonment at Docket No.
8167-2007, to run consecutive to the sentence imposed at Docket 8118-
2007. The court allowed Kwaha to serve his sentence at the Delaware
County Prison.
4
   The PCRA court, by order entered February 11, 2016, directed Kwaha to
file, within 21 days, a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The 21st day from the court’s order was
Thursday, March 3, 2016. Kwaha’s concise statement was entered on the
(Footnote Continued Next Page)


                                            -2-
J-S70017-16



      The PCRA court has summarized the procedural history of this case, as

follows:

      On October 15, 2008, [Kwaha] appeared before [the trial court]
      and entered a negotiated guilty plea [at Docket No. 8118-2007]
      to PWID [possession with intent to deliver], an ungraded felony,
      and [at Docket No. 8167-2007 to] Fleeing and Eluding Police
      Officer [F-3]. Immediately thereafter, the Court imposed
      sentence, consistent with the terms of the negotiated plea, to a
      term of 2-4 years confinement on PWID, followed by a
      consecutive 6-12 months less one day term of incarceration on
      Fleeing and Eluding. Pursuant to the negotiated plea, [Kwaha]
      was permitted to serve the sentence at Delaware County Prison.

      [Kwaha] did not file any Post Sentence Motions, including any
      motion requesting withdrawal of his previously entered guilty
      plea.  In addition, [Kwaha] did not file an appeal to the
      Pennsylvania Superior Court.    Thus, judgment of sentence
      became final on November 14, 2008.

      On August 31, 2015, [Kwaha] filed a pro se PCRA [petition] and
      PCRA [c]ounsel was appointed to represent his interests. After
      an exhaustive review of the record, on December 10, 2015 PCRA
      counsel filed a Fin[le]y “No Merit” letter. On December 16,
      2015 this Court served [Kwaha] with a Twenty Day Notice of
      Intent to Dismiss his PCRA Petition without a hearing.
      Thereafter [Kwaha’s] PCRA [petition] was dismissed on January
      21, 2016 and this timely appeal followed.

      In his Matters Complained of on Appeal, [Kwaha] raises the
      following issues for appeal[:] 1) this Court erred in dismissing
      his PCRA petition as untimely; 2) PCRA counsel was ineffective
      for failing to advance his untimely PCRA petition; and 3) his
      sentence was illegal.
                       _______________________
(Footnote Continued)

docket on Monday, March 7, 2016. We decline to find waiver based on an
untimely Rule 1925(b) statement in this case, since the concise statement is
dated February 27, 2016, and the postmark that would have indicated the
date the concise statement was mailed from prison was not saved in the
certified record.



                                            -3-
J-S70017-16



PCRA Court Opinion, 3/8/2016, at 1-2 (record citations and footnotes

omitted).

      “[A]s a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa. Super. 2016) (citation omitted). However, before we can address the

merits, we must determine if the petition is timely.


      Pennsylvania law makes clear that when “a PCRA petition is
      untimely, neither this Court nor the trial court has jurisdiction
      over the petition.” Commonwealth v. Seskey, 2014 PA Super
      27, 86 A.3d 237, 241 (Pa. Super. 2014) (citation omitted). The
      “period for filing a PCRA petition is not subject to the doctrine of
      equitable tolling; instead, the time for filing a PCRA petition can
      be extended only if the PCRA permits it to be extended[.]”
      Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (internal
      quotation marks and citation omitted). This is to “accord finality
      to the collateral review process.” Commonwealth v. Watts,
      611 Pa. 80, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).
      “However, 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.A. § 9545(b)(1)(i), (ii), and (iii), are met.”
      Commonwealth v. Lawson, 2014 PA Super 68, 90 A.3d 1, 5
      (Pa. Super. 2014) (citation omitted). The PCRA provides, in
      relevant part, as follows.


      § 9545. Jurisdiction and proceedings

      ...

      (b) Time for filing petition.—

            (1) Any petition under this subchapter, including a second
            or subsequent petition, shall be filed within one year of

                                       -4-
J-S70017-16


         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.A. § 9545(b).

Commonwealth v. Miller, 102 A.3d 988, 992-93 (Pa. Super. 2014).

     Additionally, it should be noted:        “[A]lthough 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.

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (citations omitted).

     Here, the PCRA court correctly determined Kwaha’s judgment of

sentence became final on November 14, 2008, 30 days after the judgment

of sentence when the time for filing a direct appeal to this Court expired.

See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).          Accordingly, Kwaha had

                                        -5-
J-S70017-16



until Monday, November 16, 2009, to file a PCRA petition. As the present

petition, which is Kwaha’s first PCRA petition, was filed on August 31, 2015,

it is patently untimely.   We turn then to consider whether Kwaha has pled

and proven an exception to the PCRA time bar.

      Kwaha relies on the Pennsylvania Supreme Court’s decision in

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which was based

upon Alleyne v. United States, 133 S. Ct. 2151 (2013).     In Alleyne, the

United States Supreme Court held that any fact that, by law, increases the

penalty for a crime must be treated as an element of the offense, submitted

to a jury, rather than a judge, and found beyond a reasonable doubt. See

133 S.Ct. at 2155. In Hopkins, the Pennsylvania Supreme Court, applying

Alleyne, held that 18 Pa.C.S. § 6317 (“Drug-free school zones”) — which

provides for a mandatory minimum sentence based upon a fact to be

determined by a preponderance of the evidence at sentencing — was

constitutionally infirm.

      In invoking the PCRA’s exceptions, Kwaha contends he satisfied 42

Pa.C.S. § 9545(b)(2) by filing his PCRA petition within 60 days of Hopkins,

which was decided on June 15, 2015. For purposes of the “prisoner mailbox

rule,” Kwaha attaches to his brief a copy of his prison postage order and

receipt, dated August 14, 2015. See Commonwealth v. Brandon, 51 A.3d

231, 234 n.5 (Pa. Super. 2012) (“Under the prisoner mailbox rule, we deem

a pro se document filed on the date it is placed in the hands of prison

authorities for mailing.”) (citation omitted).    However, even accepting

                                    -6-
J-S70017-16



Kwaha’s argument that he met the section 9545(b)(2) prerequisite of filing

his PCRA petition raising an exception within 60 days of the date the claim

could have been filed, no relief is due.

      Our Courts have held that judicial decisions do not qualify as newly-

discovered facts which would invoke the protections afforded by section

9545(b)(1)(ii). Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011);

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).

      Moreover, Hopkins does not satisfy the exception set forth at 42

Pa.C.S. § 9545(b)(1)(iii) for a newly recognized constitutional right that

applies retroactively.     Hopkins involved a direct appeal in which the

Pennsylvania Supreme Court applied Alleyne.                  Hopkins itself did not

recognize   a   new    constitutional   right   or    rule   that    Alleyne   applies

retroactively in Pennsylvania cases.            In fact, on July 19, 2016, in

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

Pennsylvania Supreme Court definitively held that Alleyne does not apply

retroactively to cases on collateral review where the petitioner’s judgment of

sentence has become final.

      In addition, in his brief, Kwaha cites the recent United States Supreme

Court decision of Montgomery v. Louisana, 136 S. Ct. 718 (2016), which

was decided on January 25, 2016, four days after the PCRA court had denied




                                        -7-
J-S70017-16



Kwaha’s petition.5 Kwaka argues Montgomery “set forth a new criteria for

determining when a ruling is retroactive and under this criteria gives both

Hopkins and Alleyne retroactive effect.” Kwaha’s Brief at 8-9.                       This

argument      also   implicates        the   exception   set   forth   at    42   Pa.C.S.

§ 9545(b)(1)(iii) for a newly recognized constitutional right that applies

retroactively. Kwaha’s argument, however, is unavailing.

       In Montgomery, the Supreme Court held that its prior decision in

Miller v. Alabama, 132 S. Ct. 2455 (2012) — which declared that

mandatory life without parole for juvenile homicide offenders violates the

Eighth Amendment’s prohibition on cruel and unusual punishments —

constituted a new substantive rule that must be applied retroactively to

cases on collateral review. Kwaha’s reliance on Montgomery is misplaced

because, subsequent to and mindful of the Montgomery decision, the

Pennsylvania Supreme Court held Alleyne does not apply retroactively to

cases on collateral review.            See Washington, supra, 142 A.3d at ___

(explaining, inter alia, “[T]he Alleyne rule neither alters the range of

conduct     or    the     class   of     persons   punished     by     the    law.   See

Montgomery,             U.S. at   , 136 S. Ct. at 729-30.”). To date, there is no




____________________________________________


5
   Because Montgomery was not decided until after the PCRA court’s
dismissal of his petition, Kwaha could not plead and prove his retroactive
argument based on Montgomery in the PCRA court.



                                             -8-
J-S70017-16



United States Supreme Court decision holding that          Alleyne applies

retroactively to untimely PCRA petitions.

      Based upon the foregoing, we conclude Kwaha’s petition is facially

untimely and he has failed to plead and prove a statutory exception to

overcome the PCRA time bar. Therefore, Kwaha is not entitled to review of

his PCRA claim.

      Moreover, even on the merits his claim would fail.    The PCRA court

found, and we agree, that “the official record does not reflect that [Kwaha]

was sentenced under any mandatory sentencing scheme.”           PCRA Court

Opinion, 3/8/2016, at 5. Kwaha, however, maintains:

      Contrary to both PCRA counsel and the PCRA Court’s erroneous
      assumption that nowhere in the sentencing record does it reflect
      that [Kwaha] was sentenced to a mandatory sentence, [Kwaha]
      in fact was. During sentencing, although the express words
      “Mandatory” were no[t] invoked by any of the parties, under the
      Drug Free School Zone Act, the mandatory sentence for a
      violation of this statute is/was a mandatory minimum sentence
      of two (2) years of incarceration. [Kwaha] was sentenced to two
      (2) to four (4) years for this offense, therefore, by application
      [Kwaha] was sentenced to the mandatory minimum.

      … [O]n the day of sentencing counsel informed [Kwaha] that due
      to [the] Drug Free School Zone Act, he was subject to the
      mandatory minimum and therefore the best deal he could and
      should accept was to 2 year mandatory sentence.

Kwaha’s Brief at 13–14.

        Kwaha’s argument is essentially that because he received a two-

year minimum sentence, which matches the mandatory minimum specified

in 18 Pa.C.S. § 6317 (“Drug-free school zones”), he received a mandatory


                                    -9-
J-S70017-16


minimum sentence on the drug charge.               The certified record, however,

contains no Commonwealth notice of intent to pursue application of the

mandatory minimum. See 18 Pa.C.S. § 6317(b) (“reasonable notice of the

Commonwealth’s intention to proceed under this section shall be provided

after conviction and before sentencing”). Also, there is no indication in the

transcript of the guilty plea/sentencing hearing that the two-to-four year

sentence was a mandatory minimum sentence imposed pursuant to 18

Pa.C.S. § 6317. The guideline sentence form reflects the boxes for

“mandatory minimum” and “mandatory” are blank.6             Therefore, the record

supports the PCRA court’s determination that Kwaha’s sentence did not

involve a mandatory minimum sentencing scheme.

         Accordingly, for all the above reasons, we affirm the PCRA court’s

order that dismissed Kwaha’s first PCRA petition without a hearing.

         Order affirmed.



____________________________________________


6
   The guideline sentence form does reflect a “school” enhancement. See
Sentencing Guideline Form, 10/20/2008 (indicating standard range of 24-54
months, with offense gravity score of 6 and prior record score of 3). Kwaha
may have conflated mandatory minimum sentences with enhancement
sentences. This Court has held that “[t]he enhancements do not bind the
trial court to impose any particular sentence, nor do they compel the court
to sentence within the specified range. Indeed, it is well-settled that the
sentencing guidelines ultimately are only advisory. Thus, Alleyne has no
application to the enhancements.” Commonwealth v. Ali, (Pa. Super.
2015) (citation omitted), appeal granted on other grounds, 127 A.3d 1286
(Pa. 2015).



                                          - 10 -
J-S70017-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




                          - 11 -
