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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                           :
NATHANAEL LEE SCHOEN,                      :
                                           :
                         Appellant         :     No. 1440 WDA 2015

                 Appeal from the PCRA Order August 14, 2015
                In the Court of Common Pleas of Potter County
               Criminal Division at No.: CP-53-CR-0000036-2013


BEFORE: OLSON, J., DUBOW, J., AND PLATT, J.*

MEMORANDUM BY DUBOW, J.:                                   FILED JULY 7, 2016

        Appellant, Nathanael Lee Schoen, appeals from the August 14, 2015

Order entered in the Potter 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 July 10, 2013, Appellant entered a negotiated guilty plea to one

count of Possession of a Controlled Substance With Intent to Deliver

(“PWID”).1     On August 14, 2013, the trial court imposed the negotiated

sentence of 3 to 6 years’ incarceration in accordance with the mandatory

minimum sentencing provision at 18 Pa.C.S. § 7508. Appellant did not file a


*
    Retired Senior Judge Assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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direct appeal.    His Judgment of Sentence, therefore, became final on

September 13, 2013. See 42 Pa.C.S. § 9545(b)(3).

      Appellant filed his first PCRA Petition on February 17, 2015. The PCRA

court dismissed Appellant’s first PCRA Petition on April 22, 2015. Appellant

did not file an appeal.

      Appellant filed the instant pro se PCRA Petition, his second, on July 16,

2015. Appellant avers that his sentence is illegal under Alleyne v. United

States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). On July 17,

2015, the PCRA court issued a Pa.R.Crim.P. 907 Notice advising Appellant of

its intent to dismiss his Petition based on lack of jurisdiction. Appellant filed

a pro se Objection on July 31, 2015.

      On August 14, 2015, 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 failed to

plead and prove a timeliness exception. PCRA Court Opinion, 7/17/15, at 1-

3. Appellant filed a Notice of Appeal on September 3, 2015. Both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant raises two issues for our review:

      I. Did the Post Conviction Relief Act, (P.C.R.A.), Court err in
      dismissing the instant Post Conviction Relief Act Petition as
      untimely when the instant petition was filed within sixty (60)
      days of learning of the United States Supreme Court’s decision in
      Alleyne v. United States, 133 S.Ct. 2151 (2013), thereby
      rendering his sentence unconstitutional and illegal?




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      II. Did the Post Conviction Relief Act Court err in dismissing the
      instant Post Conviction Relief Act Petition by stating the Court
      lacks jurisdiction to consider the merits when the Post Conviction
      Relief Act Court always retains jurisdiction to correct an illegal
      sentence and the inherent power to do so?

Appellant’s Brief at 4.

      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

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); Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010)

(same).

      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,



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or the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed. Albrecht, supra at 1093.

        Here, Appellant’s Judgment of Sentence became final on September

13, 2013, upon expiration of the time to file a Notice of Appeal with the

Pennsylvania Superior Court. See 42 Pa.C.S. § 9545(b)(3). In order to be

timely, Appellant needed to submit his PCRA Petition by September 15,

2014.2 Id. Appellant filed this PCRA Petition on July 16, 2015, well after

the one-year deadline. The PCRA court properly concluded that Appellant’s

second PCRA Petition is facially untimely. PCRA Court Opinion, 7/17/15, at

1-2.

        Pennsylvania courts may consider an untimely PCRA petition, however,

if the petitioner 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


2
    September 13, 2014, was a Saturday. See 1 Pa.C.S. § 1908.



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            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).      See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).

      Appellant attempts to invoke the timeliness exception under Section

9545(b)(1)(ii) in his challenge to the legality of his sentence.      Appellant

avers that he filed his PCRA Petition within 60 days of learning about

Alleyne, supra, which he argues is a “newly discovered fact” under Section

9545(b)(1)(ii). Appellant’s Brief at 8.

      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 challenge to the

legality of sentence must be raised in a timely filed PCRA Petition. See 42

Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999) (“Although legality of sentence is always subject to review within the


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PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”). Appellant must present an illegal sentencing claim in a

timely PCRA Petition over which we have jurisdiction. See Fahy, supra at

223; Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (en

banc) (explaining that the decision in Alleyne does not invalidate a

mandatory minimum sentence when presented in an untimely PCRA

Petition).

      “Our Courts have expressly rejected the notion that judicial decisions

can   be     considered   newly-discovered   facts   which   would   invoke   the

protections afforded by [S]ection 9545(b)(1)(ii).”           Commonwealth v.

Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).            Here, Appellant simply

attempts to circumvent the requirements of the PCRA statute under Section

9545(b)(1)(iii) by characterizing Alleyne as a “newly discovered fact” under

Section 9545(b)(1)(ii). Accordingly, Appellant’s claim must fail.

      Even if we analyzed Appellant’s claim under the untimeliness exception

at 42 Pa.C.S. § 9545(b)(1)(iii), his claim would also fail. The United States

Supreme Court decided Alleyne on June 17, 2013. In order to invoke the

“constitutional right” exception under 42 Pa.C.S. § 9545(b)(1)(iii), Appellant

needed to submit his PCRA petition within 60 days of June 17, 2013. See

Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating

that the 60-day period begins to run upon the date of the underlying judicial

decision). Appellant filed the instant PCRA Petition on July 16, 2015, which



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was well after 60 days from the date of the Alleyne decision. Accordingly,

the PCRA court properly concluded that Appellant failed to meet this

untimeliness exception.

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

otherwise free of legal error. Accordingly, we affirm.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2016




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