J-S70035-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                  Appellee                   :
                                             :
          v.                                 :
                                             :
DEVIN ALEXANDER,                             :
                                             :
                  Appellant                  :      No. 1231 EDA 2014

               Appeal from the PCRA Order Entered March 25, 2014
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-1026581-1991

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED NOVEMBER 10, 2014

      Devin Alexander (Appellant) appeals from an order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      On April 20, 1992, Appellant was convicted following a non-jury trial of

burglary, criminal conspiracy, five counts of aggravated assault, and other

related charges in connection with a home invasion.              On July 30, 1992,

Appellant was sentenced to an aggregate term of 35 to 70 years’

incarceration.       This     Court    affirmed    the   judgment      of   sentence.

Commonwealth v. Alexander,                636     A.2d   1206   (Pa.   Super.   1993)

(unpublished memorandum).             Appellant filed a petition for allowance of

appeal in our Supreme Court.          The Court denied that petition on April 4,

1994. Commonwealth v. Alexander, 644 A.2d 731 (Pa. 1994) (table).



* Retired Senior Judge assigned to the Superior Court.
J-S70035-14


        Appellant then filed a series of PCRA petitions, all of which were denied

at the PCRA court level, with this Court affirming those orders. Appellant’s

latest PCRA petition, and the one at issue here, was filed pro se on May 18,

2012.      On July 10, 2012, the PCRA court issued notice pursuant to

Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s petition as untimely

filed without holding an evidentiary hearing.     The court formally dismissed

the petition on March 25, 2014,1 and Appellant timely filed a notice of

appeal.2

        Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.     Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010). Under the PCRA, all petitions must be filed

within one year of the date that the petitioner’s judgment became final,

unless one of three statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1);

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). For purposes

of the PCRA, a judgment becomes final at the conclusion of direct review.

42 Pa.C.S. § 9545(b)(3). “The PCRA’s time restrictions are jurisdictional in

nature.” Chester, 895 A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely,

neither this Court nor the trial court has jurisdiction over the petition.

1
  The reason for the unacceptable twenty-month delay does not appear of
record.
2
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925, and none was filed.
The PCRA court did file an opinion pursuant to Pa.R.A.P. 1925(a).


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Without jurisdiction, we simply do not have the legal authority to address

the substantive claims.’”    Id. (quoting Commonwealth v. Lambert, 884

A.2d 848, 851 (Pa. 2005)).

      Appellant clearly filed his petition well over one year after his

judgment became final.      Thus, he untimely filed the petition, unless the

petition alleged and Appellant proved one or more of the following:

      (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)-(iii).

      In his PCRA petition and on appeal, Appellant contends that his

petition fits under the exception found at subsection 9545(b)(1)(iii).

Appellant asserts that in Lafler v. Cooper, 132 S.Ct. 1376 (2012), the

United States Supreme Court announced a new constitutional right and that

this new right not only renders his petition timely filed but also dictates that

he receive PCRA relief.3



3




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      In Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013),

this Court held that Lafler did not create a new constitutional right. Thus,

Lafler does not create a basis for which to apply subsection 9545(b)(1)(iii).

Accordingly, the PCRA court properly concluded that Appellant’s petition was

untimely filed without exception.4



      Lafler involved a criminal defendant who elected to proceed to
      trial rather than plead guilty based upon counsel's advice that
      the Commonwealth would be unable to prove intent to kill
      because the defendant shot the victim below the waist. The
      defendant received a mandatory sentence of incarceration more
      than three times longer than had been offered by the
      Commonwealth in the initial plea agreement. It was uncontested
      that counsel's advice fell below the standard of adequate
      assistance of counsel guaranteed by the Sixth Amendment,
      applicable to the States through the Fourteenth Amendment.

Commonwealth v. Lewis, 63 A.3d 1274, 1280 (Pa. Super. 2013) (internal
quotations and citations omitted).
4
  On August 11, 2014, Appellant filed with this Court an Application for Post-
Submission Communication. In that petition, Appellant argued that his
sentence is illegal pursuant to Alleyne v. United States, 131 S.Ct. 2151
(2013). In Alleyne, the United States Supreme Court held that “any fact
that increases the mandatory minimum sentence for a crime is an element
that must be submitted to the jury and found beyond a reasonable doubt[.]”
Commonwealth v. Munday, 78 A.3d 661, 665 (Pa. Super. 2013) (internal
quotations omitted).    However, in order to entertain a legality of the
sentence claim, the court must have jurisdiction to do so.

      It is generally true that this Court is endowed with the ability to
      consider an issue of illegality of sentence sua sponte. However,
      in order for this Court to review a legality of sentence claim,
      there must be a basis for our jurisdiction to engage in such
      review. As this Court recently noted, “[t]hough not technically
      waivable, 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, thus depriving the court of
      jurisdiction over the claim.


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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2014




Commonwealth v. Miller, __ A.3d __, 2014 WL 4783558, at *5 (Pa.
Super. filed September 26, 2014) (internal quotations and citations
omitted). Because neither the PCRA court nor this Court has jurisdiction
over Appellant’s untimely PCRA petition, we are not permitted to consider his
legality of the sentence claim.


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