J-S64016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CALVIN EUGENE TAYLOR, JR.,

                            Appellant                 No. 931 MDA 2017


                   Appeal from the PCRA Order May 19, 2017
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001344-2014


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 20, 2017

       Appellant, Calvin Eugene Taylor, Jr., appeals from the order entered

on May 19, 2017, in the Franklin County Court of Common Pleas that denied

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court set forth the relevant facts and procedural history of

this case as follows:

              On or about July 8, 2014, Appellant was arrested and
       charged with one (1) count of Involuntary Deviate Sexual
       Intercourse1, three (3) counts of Aggravated Indecent Assault2,
       one (1) count of Sexual Assault3, and one (1) count of
       Corruption of Minors4. On July 15, through his counsel, Appellant
       waived his preliminary hearing and the charges were bound over
       to this Court for final disposition. On August 27, 2014, Appellant
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*   Former Justice specially assigned to the Superior Court.
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       pled guilty to one (1) count of Aggravated Indecent Assault in
       full satisfaction of the charges. On December 3, 2014, [the trial
       court] sentenced Appellant to a period of incarceration of not
       less than sixty (60) nor more than 120 months in a State
       Correctional Institution (“SCI”) with credit for time served. No
       direct appeal was taken. On August 5, 2016, Appellant,
       proceeding pro se, filed a Petition for Relief under the Post-
       Conviction Collateral Relief Act (“PCRA”). On August 5, 2016,
       [the PCRA court] appointed [counsel] to represent Appellant.
       [The PCRA court] granted multiple extensions of time for
       Appellant to file an amended PCRA Petition. On March 6, 2017,
       Appellant filed an Amended PCRA Petition, in which he sought
       relief pursuant to Alleyne v. United States, 133 S.Ct. 2151
       (2013). On April 5, 2017, the Commonwealth filed an Answer to
       [Appellant’s] Amended Petition for Post-Conviction Relief. A
       PCRA Hearing was held … on May 1, 2017, where [the PCRA
       court] heard testimony from [Appellant and Appellant’s] trial
       counsel ….

              118   Pa.C.S. § 3123(b).

              2   18 Pa.C.S. §§ 3125 (a)(1), (a)(7), and (b).

              3   18 Pa.C.S. § 3124.1.

              4   18 Pa.C.S. § 6301(a)(1)(ii).

             On May 18, 2017, [the PCRA court] issued an Opinion and
       Order denying Appellant’s requested relief and dismissing his
       Amended PCRA Petition. Appellant filed a timely Notice of Appeal
       on June 7, 2017. On June 7, 2017, [the PCRA court] ordered the
       Appellant [to] file a Concise Statement of Matters Complained of
       on Appeal. Appellant filed his Concise Statement on June 26,
       2017. …

PCRA Court Pa.R.A.P. 1925(a) Opinion, 7/5/17, at 2-3.1

____________________________________________


1 As a point of clarification, we note that the PCRA court filed two opinions in
this matter. The July 5, 2017 opinion, filed in response to Appellant’s
Pa.R.A.P. 1925(b) statement, incorporated by reference the PCRA court’s
May 18, 2017 opinion and order.



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      On appeal, Appellant raises the following issues for this Court’s

consideration:

      1. Did the Trial Court err in dismissing [Appellant’s] Amended
      PCRA Petition by concluding that the PCRA Petition is facially
      untimely because [Appellant] is able to satisfy an exception to
      the one (1) year time requirement?

      2. Did the Trial Court err by denying Appellant’s Amended PCRA
      Petition when the Trial Court concluded that the plea
      negotiations were not tainted by the now unconstitutional
      mandatory minimum?

Appellant’s Brief at 4 (emphases omitted). As these issues are interrelated,

we shall address them together.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      The time-for-filing requirements of the PCRA are mandatory and

jurisdictional in nature, and the court may not ignore them in order to reach


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the merits of the petition. Commonwealth v. Cintora, 69 A.3d 759, 762

(Pa. Super. 2013).        For purposes of the PCRA, 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).

       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.2 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
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2   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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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). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

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

became final on January 2, 2015, thirty days after the trial court imposed

sentence, and Appellant failed to file a direct appeal with this Court.      42

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

the PCRA, Appellant was required to file his PCRA petition on or before

January 4, 2016.3       Appellant did not file his PCRA petition until August 5,

2016. Accordingly, Appellant’s PCRA petition is patently untimely.

       As stated, if a petitioner does not file a timely PCRA petition, his

petition nevertheless may be received under three limited exceptions to the

timeliness requirements of the PCRA.             42 Pa.C.S. § 9545(b)(1).   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).

____________________________________________


3 We note that Appellant had one year from January 2, 2015, in which to file
his PCRA petition. However, January 2, 2016, fell on a Saturday. Thus,
Appellant had until Monday, January 4, 2016, in which to file a timely PCRA
petition. 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).
Pa.R.A.P. 107; Pa.R.A.P. 903, note.



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      In his brief, Appellant cites to Alleyne v. United States, 133 U.S.

2151 (2013).     Appellant’s Brief at 16.    In Alleyne, the United States

Supreme Court held that any fact that increases a mandatory minimum

sentence must be proven beyond a reasonable doubt as an element of the

offense, and it must be submitted to the jury. Alleyne, 133 S.Ct. at 2155;

see, e.g., Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (applying

Alleyne and affirming the unconstitutionality of 18 Pa.C.S. § 6317, which

imposed a mandatory minimum sentence for crimes involving the sale of

controlled substances near school zones).     However, Alleyne was decided

well before Appellant was sentenced; thus, it is not a newly recognized

constitutional right that would satisfy the exception enumerated in 42

Pa.C.S. § 9545(b)(1)(iii).

      Nevertheless, Appellant argues that his sentence was increased and

tainted by the mention of a mandatory minimum during plea negotiations.

Appellant’s Brief at 16.     Appellant argues that Commonwealth v. Carey,

No. CP-28-CR-0001082-2013 (Ct.Com.Pl. Carbon County, entered January

17, 2017), renders Appellant’s sentence unconstitutional, and he argues that

Carey, not Alleyne, should be “given retroactive effect” in his case.

Appellant’s Brief at 12.     Appellant also cites to Commonwealth v. Ross,

140 A.3d 55 (Pa. Super. 2016), wherein this Court stated the following in

regard to retroactive application of a new rule of law:

            Under the Teague [v. Lane, 489 U.S. 288 (1989),]
            framework, an old rule applies both on direct and

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              collateral review, but a new rule is generally
              applicable only to cases that are still on direct
              review. A new rule applies retroactively in a
              collateral proceeding only if (1) the rule is
              substantive or (2) the rule is a ‘watershed rule of
              criminal procedure’ implicating the fundamental
              fairness and accuracy of the criminal proceeding.

       Ross, 140 A.3d at 59.

Appellant’s Brief at 10. We surmise that Appellant cited to this passage from

Ross in an effort to prompt this Court to apply Carey retroactively.

       Simply stated, Carey is of no moment.        This Court is not bound by

decisions of the courts of common pleas.         Commonwealth v. Anderson,

40 A.3d 1245, 1249 n.5 (Pa. Super. 2012). For purposes of our analysis,

Carey creates no exception to the PCRA time bar, and Appellant’s PCRA

petition remains untimely. Because Appellant’s PCRA petition was untimely,

the PCRA court was without jurisdiction to address the merits of Appellant’s

claims, and it properly denied the PCRA petition.        PCRA Court Opinion,

5/18/17, at 8. Accordingly, we affirm the PCRA court’s order.

       Assuming, arguendo, that we were to conclude that Carey was

precedential, announced a new constitutional right, and was to be applied

retroactively, Carey is readily distinguishable.4      In Carey, the Franklin

____________________________________________


4Appellant avers that Carey was appealed to this Court, and that it could
possibly reach the Supreme Court of Pennsylvania and result in a favorable
decision for the defendant therein. Appellant’s Brief at 12. However, the
appeal in Carey, docketed at 267 MDA 2017, was dismissed on July 31,
2017, for failure to file a brief.



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County Court of Common Pleas concluded that plea negotiations were

impacted by discussions among the defendant, his attorney, and the

prosecutor regarding application of an unconstitutional mandatory minimum.

Carey, CP-28-CR-0001082-2013, at 9.      Therein, the trial court noted that

the guideline sentencing forms contained the mandatory minimum, a letter

from defense counsel to the defendant discussed the mandatory minimum,

and neither the prosecutor nor defense counsel disputed the role the

mandatory minimum payed in plea negotiations. Id. at 9-10.

     In the case at bar, however, the Commonwealth did not file a notice of

intent to pursue the mandatory minimum, and the guideline sentencing

forms contained only the standard-range sentence without reference to the

application of a mandatory sentence.        While the words “mandatory

minimum” were discussed at the hearing on Appellant’s PCRA petition, N.T.,

5/1/17, at 6-15, plea counsel equivocated concerning whether the word

“mandatory” had any impact on plea negotiations; moreover, plea counsel

testified that a “mandatory minimum” was not part of Appellant’s guilty plea

colloquy. Id. at 16. Ultimately, in its review of the record, the PCRA court

concluded that a mandatory minimum sentence had no impact on the plea

negotiations.   PCRA Court Opinion, 5/18/17, at 10.        The PCRA court

explained:

           [Appellant] has failed to present similar evidence [to that
     presented in Carey] which would provide this Court with an
     indication that the mandatory minimum had any bearing on the
     plea negotiations. Moreover, this Court’s own review of the

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     instant record suggests that unlike the cases noted by
     [Appellant], the mandatory minimum was not suggestive or
     determinative in negotiation of [Appellant’s] sentence. Here, as
     noted by the Commonwealth, no formal Notice of Intent to
     pursue a mandatory minimum sentence was given by the
     Commonwealth to [Appellant]. The Guideline Sentence Form
     indicates a standard range of 48 to 66 months, with no
     mandatory minimum indicated. The written plea colloquy
     prepared by [plea counsel] does not indicate any mandatory
     minimum penalties for any of the offenses charged. Moreover,
     the written plea agreement bears no reference to the sentence
     being a mandatory minimum.

           At the time of the PCRA Hearing, neither party had
     requested the transcription of the sentencing hearing. Since
     then, and at this Court’s request, the sentencing transcript has
     been prepared. We note that at the outset of the sentencing
     hearing, the Commonwealth referenced a mandatory minimum
     sentence. However, we do not feel that the instant plea and
     subsequent sentence was induced because of the mandatory
     minimum. Looking at the entirety of the record, the issue of a
     mandatory minimum was not mentioned until this one point at
     sentencing. Further, even when the issue of mandatory
     minimum arose at sentencing, there was confusion regarding
     whether it applied:

          Court: The crime, I note, carries a gravity score of
          12. With no prior-record score, the standard range is
          48 to 66. So the agreed–up[on] sentence is clearly
          within the standard range.

          Commonwealth: That’s correct. It does carry with it
          a mandatory minimum sentence, Your Honor. I’ll just
          take a look at that. Five to ten years.

     (T.P. Sentencing Hearing, December 3, 2014, at 2). Given that
     this is the only reference to a mandatory minimum in the entire
     record, and also given that this reference takes place after the
     parties apparently brokered an agreed upon plea, the instant
     case is easily distinguished from Carey, where the mandatory
     minimum was clearly a factor throughout … plea negotiations.
     Therefore, this Court is not persuaded that the mandatory
     minimum provided by 42 Pa.C.S. § 9718 influenced or tainted
     [Appellant’s] plea negotiations.

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            Consequently, an analysis of applicable case authority in
      tandem with a review of the instant record reveals that the
      unconstitutionality of the mandatory minimum provided by 42
      Pa.C.S. § 9718 is not relevant to the instant matter, as it did not
      influence or “taint” [Appellant’s] plea negotiations.

PCRA Court Opinion, 5/18/17, at 11-13. Thus, even if we were to conclude

that Carey applied, we would agree with the PCRA court’s conclusion and

find that Carey is distinguishable.

      For the reasons set forth above, we conclude that Appellant’s PCRA

petition was untimely and no exceptions apply. Therefore, the PCRA court

correctly determined that it lacked jurisdiction to address the issues

presented and grant relief.    See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

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

merits of any substantive claims raised in Appellant’s 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.”). Accordingly, we affirm the PCRA court’s order dismissing

Appellant’s PCRA petition.




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Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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