J-S27011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DENNIS EUGENE LANE,

                            Appellant                No. 1692 MDA 2015


              Appeal from the Order Entered September 15, 2015
                 In the Court of Common Pleas of Fulton County
              Criminal Division at No(s): CP-29-CR-0000001-2011


BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 14, 2016

       Appellant, Dennis Eugene Lane, appeals from the order denying as

untimely his second petition for relief filed under the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 We affirm.

       The PCRA court summarized the procedural history of this case as

follows:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  In addition, Appellant has filed a “Motion to Quash Appellee’s Brief” raising,
among other concerns, the fact that the Commonwealth filed its brief in an
untimely manner. In a letter dated January 4, 2015, the office of the
Superior Court Prothonotary notified the Commonwealth that its brief was
due in this Court on or before January 28, 2016. When the Commonwealth
failed to file its brief, the case was submitted to this panel for consideration
on February 29, 2016. The Commonwealth then filed its brief with this
Court on March 4, 2016. Accordingly, we grant Appellant’s “Motion to Quash
Appellee’s Brief,” and we will not consider it in rendering our disposition.
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             On November 16, 2011, [Appellant] was charged with
       Rape, two counts of Involuntary Deviate Sexual Intercourse,
       Statutory Sexual Assault, two counts of Aggravated Indecent
       Assault, Indecent Exposure, Corruption of Minors, Unlawful
       Contact with a Minor, and two counts of Indecent Assault, for
       offenses he committed from September 2007 to November
       2010. [Appellant] entered a guilty plea on July 12, 2011, to
       Rape, Involuntary Deviate Sexual Intercourse, Statutory Sexual
       Assault, Corruption of Minors, Unlawful Contact with a Minor, and
       Indecent Assault. After several continuances, [Appellant] was
       sentenced on March 22, 2012 to 11 to 22 years in prison and
       was determined after a hearing to be a sexually violent predator
       [(“SVP”)]. [Appellant did not file a direct appeal.]

              On March 23, 2013, [Appellant] filed his first pro se
       Petition for Post Conviction Collateral Relief. He was appointed
       PCRA counsel on March 27, 2013. An Amended Post Conviction
       Collateral Relief Act Petition was filed on December 5, 2013. A
       hearing was held on the Petition on May 20, 2014. On June 4,
       2014, the [PCRA c]ourt entered an Order denying the Petition.

             [Appellant] filed a pro se Notice of Appeal on July 3, 2014.
       After failing to file a concise statement pursuant to the Court
       Order of August 29, 2014, [Appellant’s] court appointed counsel
       was removed, and Shane Kope, Esq., was eventually appointed.
       Attorney Kope filed a concise statement on January 5, 2015. On
       January 15, 2015, the [PCRA c]ourt entered an Order and
       Opinion pursuant to Pa.R.A.P. 1925(a). On August 19, 2015, the
       Superior Court affirmed [the PCRA c]ourt’s denial of [Appellant’s]
       PCRA Petition.

             On August 19, 2015, [Appellant] filed a second Petition for
       Post Conviction Collateral Relief.[2] On August 26, 2015, the
       [c]ourt entered an Order notifying [Appellant] of its intention to
       dismiss the Petition without a hearing. On September 4, 2015,
       [Appellant] filed a [pro se] Response to the Court’s Notice of
       Intent to Dismiss. By Order, on September 16, 2015, the Court
       dismissed [Appellant’s] second PCRA Petition as being untimely

____________________________________________


2
  Appellant titled this document a “Second Petition for Post Conviction
Collateral Relief, or Alternatively for Writ of Habeas Corpus.”



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      pursuant to 42 Pa.C.S. § 9545(b). On September 30, 2015,
      [Appellant] filed a Notice of Appeal to the Superior Court.

Opinion, 12/8/15, at 1-2 (footnotes omitted). Both Appellant and the PCRA

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

      Appellant presents the following issues for our review, which we

reproduce verbatim:

                           QUESTION # 1
            Did the Trial Court ERROR in dismissing Appellants
      “Second Petition for Post Conviction Collateral Relief, or
      alternately for Writ of Habeas Corpus” under Rule 907 as
      untimely?

                           QUESTION # 2
           Is an unconstitutional facially void statute enforceable as
      terms of a plea agreement?

                            QUESTION # 3
            Are the crimes of Corruption of Minors (18 Pa. C.S.
      §6301(a)(1) and Indecent Assault of person under 16 years of
      age (18 Pa. C.S. §3126(a)(8) lesser included offenses of Rape
      (18 Pa. C.S. §3121(a)(1) or ISDI (18 Pa. C.S. §3123(a)(7) or
      Statutory Sexual Assault (18 Pa. C.S. §3122.1) or Unlawful
      contact with minor (18 Pa. C.S. §631.8(a)(1)?

                           QUESTION # 4
            Were the procedures utilized in the Appellants SVP hearing
      to determine Appellants SVP status unconstitutional?

                           QUESTION # 5
            Was each of Appellants three counsel ineffective?

Appellant’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31


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A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Initially, we must determine whether this matter is properly before us.

We begin by determining whether the PCRA court accurately considered

Appellant’s petition to be a PCRA petition and to impose the applicable

timeliness requirements.

      The scope of the PCRA is explicitly defined as follows:

      This subchapter provides for an action by which persons
      convicted of crimes they did not commit and persons serving
      illegal sentences may obtain collateral relief.       The action
      established in this subchapter shall be the sole means of
      obtaining collateral relief and encompasses all other
      common law and statutory remedies for the same purpose
      that exist when this subchapter takes effect, including
      habeas corpus and coram nobis. This subchapter is not
      intended to limit the availability of remedies in the trial court or
      on direct appeal from the judgment of sentence, to provide a
      means for raising issues waived in prior proceedings or to
      provide relief from collateral consequences of a criminal
      conviction.

42 Pa.C.S. § 9542 (emphasis added).

      The plain language of the statute above demonstrates that the General

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235

(Pa. 2001) (emphases in original).         Where a defendant’s claims “are


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cognizable under the PCRA, the common law and statutory remedies now

subsumed by the PCRA are not separately available to the defendant.” Id.

at 1235 (citations omitted). By its own language, and by judicial decisions

interpreting such language, the PCRA provides the sole means for obtaining

state collateral relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa.

1999) (citations omitted). Thus, it is well settled that any collateral petition

raising issues with respect to remedies offered under the PCRA will be

considered to be a PCRA petition.     Commonwealth v. Deaner, 779 A.2d

578, 580 (Pa. Super. 2001).

      The question then is whether the particular claims raised in Appellant’s

petition are claims that were available to him under the PCRA. Upon review

of the relevant law and Appellant’s petition, we are constrained to conclude

that the PCRA court properly considered it to be a PCRA petition.

      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 may not be

ignored 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).


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       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. § 9545(b)(1)(i), (ii),

and (iii), is met.3 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

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

became final on April 23, 2012, thirty days after the trial court imposed the

____________________________________________


3
    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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judgment of sentence and Appellant failed to file a direct appeal with this

Court.4   42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).      Thus, in order to be

timely under the PCRA, Appellant needed to file the Petition on or before

April 23, 2013.      Appellant did not file the Petition until August 19, 2015.

Accordingly, the Petition is a patently untimely PCRA petition.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1).      That burden necessarily entails an acknowledgment by the

petitioner that the PCRA petition under review is untimely but one or more of

the exceptions apply. Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2). In addition, exceptions cannot be raised for the

first time on appeal. Commonwealth v. Wharton, 886 A.2d 1120, 1126

(Pa. 2005).




____________________________________________


4
  We note that a direct appeal needed to be filed on or before Monday, April
23, 2012, because April 21, 2012, was a Saturday. See 1 Pa.C.S. § 1908
(stating that, for computations of time, whenever the last day of any such
period shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation). See also Pa.R.A.P. 107; Pa.R.A.P. 903,
note.



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     Our review of the record reflects that the Petition failed to specifically

allege or prove that any of the exceptions apply.     Petition, 8/19/15.   The

court of common pleas aptly addressed this shortcoming in its opinion filed

pursuant to Pa.R.A.P. 1925(a) as follows:

     [Appellant] does not allege that he meets any of the three
     exceptions to the time-bar found in 42 Pa.C.S. § 9545(b)(i-iii).

Opinion, 12/8/15, at 3. Upon review of the Petition, we likewise conclude

that Appellant failed to allege in his pleading that any of the exceptions

apply or that the Petition was presented within the applicable sixty-day time

frame. Thus, the court of common pleas was without jurisdiction to grant

relief in this matter and it properly dismissed Appellant’s PCRA petition as

untimely.

     In addition, in his memorandum in support of his PCRA petition, it

appears that Appellant has ostensibly attempted to invoke the time-bar

exception under section 9545(b)(1)(iii) by maintaining that his sentence is

illegal and needs to be corrected by citing to Apprendi v. New Jersey, 530

U.S. 466 (2000), Alleyne v. United States, 133 S.Ct. 2151 (2013), and

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).

Memorandum, 8/19/15, at 4-6.          Thus, Appellant’s citations may be

characterized as an attempt to assert the “new constitutional right”

exception to the PCRA time-bar based on Apprendi, Alleyne, and

Newman.




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     This Court has explained the rulings and impact of Apprendi,

Alleyne, and Newman 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.

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)

(emphasis added).

     While this Court has held that Alleyne applies retroactively to cases

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

construe that decision as applying retroactively to cases during PCRA review.

     In concluding Alleyne does not satisfy the new retroactive
     constitutional right exception to the PCRA’s one year time bar,
     42 Pa.C.S. § 9545(b)(1)(iii), the [Commonwealth v. Miller,
     102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:




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              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.

       Id. at 995 (citations omitted) (emphasis supplied).

Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa. Super. 2015) (emphasis

original).

       Alleyne was decided on June 17, 2013.               As noted, Appellant’s

judgment of sentence became final on April 23, 2012, more than one year

before Alleyne was decided.           Additionally, although a challenge based on

Alleyne does implicate the legality of a sentence, “a legality of sentence

claim may nevertheless be lost should it be raised . . . in an untimely PCRA

petition for which no time-bar exception applies.” Miller, 102 A.3d at 995-

996. Appellant’s petition was filed beyond the one-year deadline under the

PCRA, and Appellant cannot rely on Alleyne or its progeny to invoke the

timeliness exception at section 9545(b)(1)(iii) to rescue his petition.5

____________________________________________


5
  While we acknowledge that Appellant’s claim concerning Alleyne goes to
the legality of his sentence, we note that this Court has stated that
“although illegal sentencing issues cannot be waived, they still must be
presented in a timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d
462, 465 (Pa. Super. 2013).



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      In conclusion, because Appellant’s second PCRA petition was untimely

and no exceptions apply, the PCRA court lacked jurisdiction to address the

claims presented and grant relief.    See Commonwealth v. Fairiror, 809

A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction

to hear untimely petition).   Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.               See

Commonwealth        v.    Bennett,   930      A.2d   1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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