J. S59037/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
BOBBY L. CARLSON,                            :
                                             :
                          Appellant          :    No. 585 WDA 2015

                    Appeal from the Order February 9, 2015
                  In the Court of Common Pleas of Elk County
               Criminal Division No(s).: CP-24-CR-0000008-2009

BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 15, 2015

        Appellant, Bobby L. Carlson, appeals from the order of the Elk County

Court of Common Pleas dismissing his second Post Conviction Relief Act1

(“PCRA”) petition as untimely.        Appellant contends his 2009 sentence for

rape of a child2 is illegal under Alleyne v. United States, 133 S. Ct. 2151

(2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc).3 We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
 18 Pa.C.S. § 3121(c); see also 42 Pa.C.S. § 9718 (“Sentences for offenses
against infant persons”).
3
 In addition to Alleyne and Newman, the mandatory minimum sentence in
Section 9718(a)(1) has been held unconstitutional in Commonwealth v.
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      The following procedural history is relevant to this appeal. On July 29,

2009, Appellant pleaded guilty to one count of rape of a child. At the time of

Appellant’s plea, the Commonwealth advised him of the potential mandatory

minimum sentence of ten years under 42 Pa.C.S. § 9718(a)(3).4                   N.T.,

7/29/09, at 3.        At the sentencing hearing on December 28, 2009, the

Commonwealth requested the ten-year mandatory minimum sentence.

N.T., 12/28/09, at 3. The trial court sentenced Appellant to ten to twenty

years’ imprisonment. He did not take a direct appeal.

      On June 23, 2010, the court received Appellant’s timely first pro se

PCRA petition5 and appointed counsel.          On December 14, 2010, appointed

counsel   filed   a   petition   to   withdraw   and   a   no-merit   letter.   See



Wolfe, 106 A.3d 800 (Pa. Super. 2014). The Pennsylvania Supreme Court
granted allowance of appeal in Wolfe to consider “[w]hether the Superior
Court of Pennsylvania’s sua sponte determination that the ten year
mandatory minimum sentence for involuntary deviate sexual intercourse
(Person less than 16 years) imposed pursuant to 42 Pa.C.S.A. § 9718(a)(1)
is facially unconstitutional is erroneous as a matter of law?”
Commonwealth v. Wolfe, 63 MAL 2015 (Pa. Aug. 12, 2015).
4
  Although the Commonwealth referred to the mandatory minimum sentence
in 42 Pa.C.S. § 9718(a)(1), see N.T., 7/29/09, at 3, the provision applicable
to a conviction under 18 Pa.C.S. § 3121(c) for rape of a child was set forth
in 42 Pa.C.S. § 9718(a)(3). See 42 Pa.C.S. § 9718(a)(3) (“A person
convicted of the following offenses shall be sentenced to a mandatory term
of imprisonment as follows . . . 18 Pa.C.S. § 3121(c) and (d)—not less than
ten years.”).
5
  Appellant, in his first PCRA petition, claimed plea counsel coerced him into
pleading guilty and failed to investigate possible defenses. We note that the
record does not contain the stamped envelopes related to Appellant’s first
petition or any of Appellant’s later pro se filings.



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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Subsequently, the PCRA

court (1) granted appointed counsel leave to withdraw on December 17,

2010, (2) issued a Pa.R.Crim.P. 907 notice of intent to deny relief without a

hearing on January 4, 2011, and (3) denied Appellant’s first PCRA petition

on February 10, 2011. Appellant did not take an appeal.

      Nearly forty-six months later, on December 1, 2014, the PCRA court

received Appellant’s pro se “Motion to Vacate Illegal Sentence,” which gives

rise to this appeal.   Appellant sought relief based on the United States

Supreme Court’s decision in Alleyne.6 The court regarded the motion as a

second PCRA petition and on January 8, 2015, issued a Pa.R.Crim.P. 907

notice of its intent to dismiss the petition as untimely. Appellant filed a pro

se response citing, inter alia, this Court’s en banc decision in Newman.7

The court dismissed Appellant’s petition on February 9, 2015.

      On March 25, 2015, the PCRA court filed and docketed Appellant’s pro

se notice of appeal. However, the notice of appeal bore a handwritten date

of March 8, 2015, as did Appellant’s certificate of service and verification.




6
 We note Alleyne was decided on June 17, 2013, more than seventeen
months before the PCRA court received the instant petition.
7
  Newman was decided on August 20, 2014, more than three months
before the PCRA court received the petition.



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The court, on March 27, 2015, authored a Pa.R.A.P. 1925(a) opinion 8

indicating that Appellant’s notice of appeal was facially untimely, but the

“prisoner [mailbox] rule may be implicated.” PCRA Ct. Op., 3/27/15. The

court did not resolve the uncertainty surrounding the timeliness of

Appellant’s appeal, but suggested the appeal be dismissed or its ruling be

affirmed based on its previous order dismissing the petition. Id.

      Appellant, in his pro se brief, presents the following question for our

review: “Did the [PCRA] court err in dismissing [Appellant’s] PCRA [petition

by] not recognizing the § 9545 exception of ‘after recognized constitutional

rights’ and ‘a[n] illegal sentence can[not] be waived[?’]” Appellant’s Brief at

3.   He notes the legal resources at the State Correctional Institution at

Mercer are limited and argues he exercised reasonable diligence when filing

his second PCRA petition based on Alleyne and Newman.           Id. at 6.   He

further suggests a challenge to an illegal sentence cannot be waived. Id. at

7. No relief is due.

      Preliminarily, we address the PCRA court’s suggestion that Appellant’s

notice of appeal was not filed within thirty days.     See Pa.R.A.P. 903(a).

Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001)

(noting “questions of jurisdiction may be raised sua sponte”).       It is well

settled the “prisoner mailbox rule provides that a pro se prisoner’s document


8
  The PCRA court did not require Appellant to file a Pa.R.A.P. 1925(b)
statement.



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is deemed filed on the date he delivers it to prison authorities for mailing.”

Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation

omitted).

      In this case, the time to file an appeal from the PCRA court’s February

9, 2015 order ended on March 11, 2015. See Pa.R.A.P. 903(a). Appellant

signed and dated his notice of appeal and a certificate of service on Sunday,

March 8, 2015, three days before that deadline. We acknowledge there is

uncertainty surrounding Appellant’s certification that he deposited his notice

of appeal with prison officials on March 8th and that Appellant bore the

burden to proving the timeliness of his appeal. See Chambers, 35 A.3d at

40.   However, we adopt March 8th as the date of filing and conclude the

present appeal is timely.9 See Chambers, 35 A.3d at 40. Accordingly, we

decline to quash this appeal and consider Appellant’s arguments in this

appeal.

      When analyzing the dismissal of a PCRA petition, “an appellate court’s

scope of review is limited by the PCRA’s parameters; since most PCRA

appeals involve mixed questions of fact and law, the standard of review is

whether the PCRA court’s findings are supported by the record and free of

legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).



9
  Although we could remand for the PCRA court to determine the filing date
of this appeal, such a procedure would not be an efficient use of judicial
resources. See Chambers, 35 A.3d at 40.



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         The timeliness of a PCRA petition is a threshold question that

implicates the jurisdiction of a court to consider the merits of the relief

requested. See Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super.

2014); Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super.)

(citations omitted) appeal denied, 101 A.3d 103 (Pa. 2014).                        Although a

legality of sentence claim cannot be “waived,” the claim must be presented

in a timely PCRA petition to obtain post-conviction collateral relief.                      See

Seskey, 86 A.3d at 241. “[A] legality [of sentence] claim may . . . be lost

should it be raised for the first time in an untimely PCRA petition for which

no time-bar exception applies, thus depriving the [PCRA] court of jurisdiction

over the claim.” Id. (citations omitted).

         “[A]n 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]   are    met.”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014).                                  Section

9545, in relevant part, provides:

              (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:

                                          *        *     *

                   (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.


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            (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)(iii)-(2). “[A] constitutional right newly recognized

by the Supreme Court of the United States is made retroactive to cases on

collateral review only if that court specifically holds it to be retroactively

applicable to cases on collateral review.” Commonwealth v. Phillips, 31

A.3d 317, 320-21 (Pa. Super. 2011).

      In Alleyne, the United States Supreme Court held that “any fact that

increases the mandatory minimum [sentence] is an ‘element’ that must be

submitted to the jury.”   Alleyne, 133 S. Ct. at 2155 (citations omitted).

However, “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.” Commonwealth v. Miller, 102

A.3d 988, 995 (Pa. Super. 2014).

      It is undisputed that Appellant’s second PCRA petition, filed almost

four years after his sentence became final, was untimely on its face.

Following our review of the relevant law, we agree with the PCRA court that

Appellant failed to establish a timeliness exception based on the rights

recognized in Alleyne and the Pennsylvania cases applying Alleyne. See

PCRA Ct. Order, 2/9/15, at 2-3. As noted above, neither the United States

Supreme Court nor the Pennsylvania Supreme Court has specifically held




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those rights apply retroactively to cases on collateral review.10   See 42

Pa.C.S. § 9545(b)(1)(iii); Miller, 102 A.3d at 995.   Thus, the PCRA court

correctly determined it lacked jurisdiction to consider the claims raised in

Appellant’s untimely second PCRA petition.11 See Miller, 102 A.3d at 995;

Seskey, 86 A.3d at 241.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2015




10
   Similarly, our decision in Wolfe provides no basis to assert a timeliness
exception to the PCRA under Section 9545(b)(1)(iii). Moreover, we note
that Wolfe did not consider the sentencing provisions in 42 Pa.C.S. §
9718(a)(3).
11
  In light of our decision, we need not consider whether Appellant filed the
underlying petition “within 60 days of the date the claim could have been
presented” as required by 42 Pa.C.S. § 9545(b)(2).



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