J-S51012-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

DAMIEN RAINEY A/K/A HASSAN
PHILLIPS

                        Appellant                   No. 2243 EDA 2016


                  Appeal from the PCRA Order June 3, 2016
            In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                          CP-51-CR-0805641-1995
                          CP-51-CR-0805681-1995
                          CP-51-CR-0808891-1995
                          CP-51-CR-1011401-1995


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 27, 2017

      Damien Rainey appeals from the order denying his fourth PCRA

petition as untimely. We affirm.

      This PCRA appeal involves dozens of crimes spanning multiple dockets.

Our memorandum decision denying relief on direct appeal set forth the

factual history.

      Appellant's photo was picked out of two separate arrays by three
      individuals in connection with robberies at two stores owned and
      operated by Korean-Americans. Mr. Han picked appellant's photo
      in connection with the robbery of his store occurring on April 29,
      1995, and Mr. and Mrs. Yi both picked appellant's photo from an
      array in connection with two robberies occurring at their store
      approximately two years apart[, t]he first robbery taking place

* Former Justice specially assigned to the Superior Court.
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       on March 14, 1993 and the second two days after the Han
       robbery on May 1, 1995. The robber in all three incidents utilized
       a handgun and threatened the victims and even fired a shot
       while committing the third robbery.

       Appellant was arrested sometime after the third robbery and was
       charged with five counts of robbery, two counts of aggravated
       assault and three counts of possessing an instrument of crime.

Commonwealth v. Rainey, 806 A.2d 465 (Pa.Super. 2002) (unpublished

memorandum at 2). Appellant’s trials were consolidated and he ultimately

received an aggregate sentence of forty-seven and one-half to ninety-five

years incarceration, which apparently included the imposition of some

mandatory minimum sentences pursuant to 42 Pa.C.S. § 9712 (requiring

minimum      sentence     where,     inter     alia,   robbery   was   committed   while

possessing a firearm).1        After his two direct appeals concluded, Appellant

unsuccessfully sought PCRA relief, and we affirmed.                    Appellant sought

PCRA relief twice more, but did not appeal either case to this Court.

       The instant appeal concerns Appellant’s latest PCRA petition, docketed

September 22, 2015, which asserted that he was entitled to resentencing

due to our Supreme Court’s decision in Commonwealth v. Hopkins, 117

A.3d 247 (Pa. 2015), decided June 15, 2015. Hopkins did not invalidate §

9712; rather, it declared that 18 Pa.C.S. § 6317(a), which called for a
____________________________________________


1
  The record does not clearly indicate whether Appellant actually received
any mandatory minimum sentences. As Appellant is not entitled to relief in
any event, we will assume for purposes of discussion that his aggregate
sentence included some mandatory minimums under 42 Pa.C.S. § 9712.



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mandatory minimum sentence of two years total confinement when a

defendant was convicted of certain drug crimes within 1,000 feet of, inter

alia, school zones, was unconstitutional following Alleyne v. United States,

133 S.Ct. 2151 (2013) (jury must find beyond a reasonable doubt any facts

that increase a mandatory minimum sentence).2             Hopkins effectively

“invalidate[d] a range of Pennsylvania sentencing statutes predicating

mandatory minimum penalties upon non-elemental facts and requiring such

facts to be determined by a preponderance of the evidence at sentencing.”

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (citing Hopkins,

supra). Appellant maintained that, as of the date Hopkins was issued, he

was serving an unconstitutional, and therefore illegal, sentence, which was

amenable to correction through the PCRA.

       The PCRA court issued a notice of intent to dismiss, to which Appellant

filed an objection. The court then denied the petition as untimely on June 3,

2016. Appellant timely appealed. The PCRA court did not order Appellant to

file a concise statement of matters complained of on appeal, and filed its

opinion. The matter is now ready for our review.

       It is well-settled that all PCRA petitions must be filed within one year

of the date a defendant’s judgment of sentence becomes final unless an

____________________________________________


2
    This Court held, in Commonwealth v. Valentine, 101 A.3d 801
(Pa.Super. 2014) (en banc), that § 9712 was unconstitutional.



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exception applies. 42 Pa.C.S. § 9545(b)(1). The time-bar is jurisdictional in

nature; therefore, “when a PCRA petition is untimely, neither this Court nor

the trial court has jurisdiction over the petition.”       Commonwealth v.

Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation and quotation marks

omitted). Timeliness presents a question of law, which we review de novo,

and our scope of review is plenary. Commonwealth v. Hudson, 156 A.3d

1194, 1197 (Pa.Super. 2017). We thus must determine whether Appellant’s

petition was timely prior to addressing the merits of his claims.

      Appellant’s conviction became final long ago. The burden to plead and

prove an exception to the one-year time bar is borne by the petitioner

seeking PCRA relief. Appellant’s attempt to do so relied upon Hopkins, and

he explicitly sought relief under § 9545(b)(1)(ii), which applies to newly-

discovered facts. See Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016).

“The instant petition is filed within sixty (60) days of learning of the decision

in Hopkins at S.C.I. Rockview Law Library on August 13, 2015 . . .

pursuant to the filing restraints of Newly Discovered Evidence[.]”        Pro se

PCRA Petition, 9/22/15, at unnumbered 2. Additionally, in response to the

PCRA court’s notice of intent to dismiss, Appellant filed an objection stating

that he “correctly relied upon ‘Newly Discovered Facts’ exception . . . [I]

received word by a fellow prisoner of the Court’s development in Hopkins

that the mandatory minimum sentencing scheme in Pennsylvania is

unconstitutional[.]” Objection, 5/24/16, at unnumbered 2.

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      Appellant’s petition suffered from multiple fatal defects, any of which

serve as a basis for affirming the order. First, the § 9545(b)(1)(ii) exception

pertains to facts, not new law.           Our Supreme Court has held that

“subsequent decisional law does not amount to a new ‘fact’ under section

9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987

(Pa. 2011).     Thus, even assuming that Hopkins conferred some kind of

right upon Appellant, the proper exception is codified at § 9545(b)(1)(iii),

which applies to new constitutional rights held to apply retroactively by a

decision of the Supreme Courts of the United States or Pennsylvania.

      The second flaw is that Hopkins would not afford Appellant relief even

if   he   had   properly   cited   the    §    9545(b)(1)(iii)   exception.   In

Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our Supreme

Court has explained that this exception has two requirements.

      First, it provides that the right asserted is a constitutional right
      that was recognized by the Supreme Court of the United States
      or this court after the time provided in this section. Second, it
      provides that the right “has been held” by “that court” to apply
      retroactively. Thus, a petitioner must prove that there is a
      “new” constitutional right and that the right “has been held” by
      that court to apply retroactively. The language “has been held” is
      in the past tense. These words mean that the action has already
      occurred, i.e., “that court” has already held the new
      constitutional right to be retroactive to cases on collateral
      review. By employing the past tense in writing this provision,
      the legislature clearly intended that the right was already
      recognized at the time the petition was filed.

Id. at 501. Additionally, a petition seeking to invoke this section must be

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


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Pa.C.S. § 9545(b)(2). “[U]nlike subsection (b)(1)(ii), subsection (b)(1)(iii)

precludes consideration of the petitioner’s knowledge and an assessment of

due diligence.” Commonwealth v. Burton, 158 A.3d 618, 636 (Pa. 2017).

      Even if we could overlook the failure to cite the correct exception,

Appellant’s petition failed all three requirements. Hopkins did not announce

a new constitutional right, it was not held by our Supreme Court to apply

retroactively, and Appellant did not file his petition within sixty days of its

decision.

      Finally, Appellant’s attempt to secure relief rests on the notion that

Alleyne, as interpreted by Hopkins, applies retroactively.      Our Supreme

Court has held that Alleyne does not apply retroactively to cases on

collateral review. Commonwealth v. Washington, 142 A.3d 810, 818 (Pa.

2016).      Therefore, the PCRA court correctly determined that it lacked

jurisdiction to address Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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