J-S34019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

RICCHEEM A. BARKER

                       Appellant                 No. 1559 MDA 2014


            Appeal from the PCRA Order September 8, 2014
           In the Court of Common Pleas of Lycoming County
          Criminal Division at No(s): CP-41-CR-0001996-2009
*************************************************************

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

RICCHEEM A. BARKER

                       Appellant                 No. 1560 MDA 2014


             Appeal from the PCRA Order September 8, 2014
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0001995-2009


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                             FILED JUNE 30, 2015

     Riccheem A. Barker appeals pro se from the order entered September

8, 2014, in the Court of Common Pleas of Lycoming County that dismissed
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his second petition filed pursuant to the Post Conviction Relief Act (PCRA) 1.

Barker claims that the PCRA court erred by dismissing his PCRA petition as

untimely filed. Based upon the following, we affirm.

       The PCRA court set forth the relevant procedural history in its opinion.

              On September 8, 2010, [Barker] pled guilty to Third
       Degree Murder,1 Persons Not to Possess a Firearm,2 and
       Possession with the Intent to Deliver a Controlled Substance.3
       On September 8, 2010, the Court imposed an aggregate
       sentence of twenty (20) to fifty (50) years. [Barker] did not file
       an appeal to the Superior Court. On June 24, 2014, [Barker]
       filed a Post-Conviction Relief Act (PCRA) Petition. The petition is
       postmarked June 23, 2014. The petition is [Barker’s] second
       PCRA petition. In the petition, [Barker] argues that as a result
       of the decision of the Supreme Court of the United States in
       Alleyne v. United States,4 his rights under the Sixth Amendment
       to the United States Constitution were violated because the
       Court utilized a mandatory minimum when fashioning the
       sentence imposed.

       _____________________
       1
           18 Pa.C.S. § 2502(c).
       2
           18 Pa.C.S. § 6105(a)(1).
       3
           35 P.S. § 780-113(a)(30).
       4
           133 S.Ct. 2151 (2013).

       ____________________

PCRA Court Opinion, 7/09/2014, at 1.

       Our standard of review is as follows:

____________________________________________


1
  42 Pa.C.S. §§ 9541-9546. Barker filed his first PCRA petition on July 12,
2011. The PCRA court denied relief and this Court affirmed the decision of
the PCRA court. Commonwealth v. Barker, 102 A.3d 524 (Pa. Super.
2014) (unpublished memorandum).



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      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 decision is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations

omitted).

      It is undisputed that 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); Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013) (citation omitted).         This time requirement is mandatory and

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

merits of petition. Id. at 651.

      Generally, a PCRA petition must be filed within one year from the
      date a judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1).
      There are three exceptions to this time requirement: (1)
      interference by government officials in the presentation of the
      claim; (2) newly discovered facts; and (3) an after-recognized
      constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i-iii). When a
      petitioner alleges and proves that one of these exceptions is
      met, the petition will be considered timely.                 See
      Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d
      780, 783 (Pa. 2000). A PCRA petition invoking one of these
      exceptions must “be filed within 60 days of the date the claims
      could have been presented.” Id. (quoting 42 Pa.C.S.A. §
      9545(b)(2)).     The timeliness requirement of the PCRA are
      jurisdictional in nature and, accordingly, a PCRA court cannot
      hear untimely petitions. Commonwealth v. Robinson, 575 Pa.
      500, 837 A.2d 1157, 1161 (Pa. 2003).

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa. Super. 2012).
    Barker does not dispute that his present PCRA petition is facially

untimely.   He claims, however, that his petition falls within a statutory



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exception to the PCRA’s time bar.2 In this regard, Barker cites the United

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.

2151 (June 17, 2013), and relies upon the PCRA’s exception for newly

discovered facts. 42 Pa.C.S. § 9545(b)(ii). We conclude, however, no relief

is due.

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

States Supreme Court held “[a]ny fact that, by law, increases the penalty for

____________________________________________


2
  The relevant exceptions to the PCRA time bar are set forth in Section
9545(b)(1), as follows:

       (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:

                                         ****

          (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 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)(ii)-(iii), (b)(2) (emphasis supplied).




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a crime is an ‘element’ that must be submitted to the jury and found beyond

a reasonable doubt.”     Id. at 2155. Applying this mandate, this Court has

held that Alleyne renders unconstitutional mandatory minimum sentencing

statutes that permit the trial court to increase a defendant’s minimum based

upon a preponderance of the evidence standard. See Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (finding 42 Pa.C.S. §

9712.1 unconstitutional).

      In this case, Barker avers:

      [T]he material fact presented is that his mandatory minimum
      sentence of five (5) years got [sic] Possession with the Intent to
      Deliver a Controlled Substance under 35 P.S. § 780-113(a)(30)
      and 18 Pa.C.S.A. [sic] 7508, and Person not to Possess a
      Firearm under 18 Pa.C.S.A. § 6105(a)(1), based upon the fact
      that [Barker] possessed heroin with an intent to deliver and
      possessed a firearm, during the commission of the drug offense
      and homicide offense was not determined by a jury, to have
      been proven beyond a reasonable doubt.
Barker’s Objection to July 9, 2014, Opinion and Order to Dismiss, 8/4/2014,

at 1, ¶ 1 (emphasis omitted).

      Barker’s petition does not satisfy any exceptions to the PCRA’s one-

year time limitation.   “Our Courts have expressly rejected the notion that

judicial decisions can be considered newly-discovered facts which would

invoke the protections afforded by section 9545(b)(1)(ii).” Commonwealth

v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).           Therefore, Alleyne, a

judicial decision, is not a “fact” that satisfies Section 9545(b)(1)(ii).

      Moreover, while not specifically raised by Barker, we note that this

Court, in Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014),

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confirmed that a PCRA petitioner may not rely upon the decision of the

Supreme Court of the United States in Alleyne to avail himself of the

exception to the time requirements of the PCRA codified at § 9545(b)(1)(iii).

In Miller, a panel of this Court concluded that Alleyne was an extension of

the line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466

(2000), and further that:

       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 in those
       cases.    Therefore, Appellant has failed to satisfy the new
       constitutional right exception to the time bar.

Miller, 102 A.3d at 995 (citations omitted) (footnote omitted).3

       Furthermore, as the PCRA court correctly pointed out, even if Barker’s

arguments satisfied an exception, his petition would still be untimely.

Section 9545(b)(2) requires a PCRA petition raising an exception to “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2). Alleyne was decided on June 17, 2013, and Barker did not


____________________________________________


3
   Although Barker cites Commonwealth v. Newman, supra, for the
proposition that Alleyne applies retroactively, his reliance is misplaced.
See Barker’s Brief, at 2. Newman held that Alleyne is to be given
retroactive effect to cases that were pending on direct appeal at the
time the decision in Alleyne was issued.



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file his petition until June 23, 2014, over one year after the decision.

Although Barker maintains that he filed his petition within 60 days of a local

newspaper article wherein he learned of the Alleyne decision, this Court has

explained:


      [T]he sixty-day period begins to run upon the date of the
      underlying judicial decision. Ignorance of the law does not
      excuse [a petitioner’s] failure to file his petition within the 60
      days …. Neither the court system nor the correctional system is
      obliged to educate or update prisoners concerning changes in
      case law.

Brandon, supra, 51 A.3d at 235 (Pa. Super. 2012) (quotations and

citations omitted).

      As Barker’s PCRA petition is time-barred, in that he is unable to

demonstrate    the    applicability   of   a     statutory   exception   to   the   time

requirements of the PCRA, we affirm.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2015




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