J-S46025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

AARON J. WILSON

                            Appellant              No. 3255 EDA 2014


                 Appeal from the PCRA Order October 28, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0008006-2008


BEFORE: MUNDY, OLSON and MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 23, 2015

       Appellant, Aaron J. Wilson, appeals pro se from the order entered on

October 28, 2014, dismissing his second petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

       As the PCRA court explained:

         [On July 16, 2009, a jury found Appellant guilty of persons
         not to possess firearms, possession of a controlled
         substance with the] intent to deliver, possession of a
         controlled   substance,    and      possession   of    drug
                        [1]
         paraphernalia.     On September 21, 2009, [Appellant] was
         sentenced to [serve] an aggregate [term] of 66 to 192
         months [in prison and to pay a fine of $30,000.00].

         [Appellant] filed a timely appeal [and, o]n August 9, 2010,
         the Superior Court affirmed [Appellant’s] judgment of
____________________________________________


1
  18 Pa.C.S.A. § 6105 and 35 P.S. §§ 780-113(a)(30), (16), and (32),
respectively.
J-S46025-15


        sentence[. Appellant did not thereafter file a petition for
        allowance of appeal with our Supreme Court]. . . .

        On January 28, 2011, [Appellant] filed a timely PCRA
        petition. . . .  On April [30], 2013, [the PCRA] court
        [entered] an order dismissing the petition. [Appellant] did
        not appeal.

        On June 27, 2014, [Appellant] filed a second PCRA
        petition[,] alleging that his mandatory minimum sentence
        was illegal in light of [Alleyne v. United States, ___ U.S.
        ___, 133 S.Ct. 2151 (2013) and Commonwealth v.
        Munday, 78 A.3d 661 (Pa. Super. 2013). The PCRA] court
        issued a notice of intent to dismiss on September 22, 2014.
        [Appellant] filed his objections to the notice on October 8,
        2014. On October 27, 2014, [the PCRA] court issued an
        order dismissing the petition. On November 21, 2014,
        [Appellant] appealed.

PCRA Court Opinion, 12/10/14, at 3-5 (some internal capitalization omitted).

      Now on appeal, Appellant claims that the PCRA court improperly

dismissed his second PCRA petition because, in Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), the Superior Court held

that “the mandatory minimum sentences [are] . . . illegal.” Appellant’s Brief

at 1-2. Therefore, Appellant claims that his second PCRA petition is timely

under the “newly recognized constitutional right” exception to the PCRA’s

one-year time-bar.    We now affirm the dismissal of Appellant’s patently

untimely, serial PCRA petition.

      As our Supreme Court held, we “review an order granting or denying

PCRA relief to determine whether the PCRA court’s decision is supported by

evidence of record and whether its decision is free from legal error.”

Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).



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J-S46025-15


     The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.   This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).             Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we

consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,

586 (Pa. 1999). Our Supreme Court explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.               See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).




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     In the case at bar, Appellant’s judgment of sentence became final in

2010. As Appellant did not file his current petition until June 27, 2014, the

current petition is manifestly untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.     See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements

of the relied-upon exception).

     Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception 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.

                                    ...

        (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.A. § 9545(b).

     As our Supreme Court explained:


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        Subsection (iii) of Section 9545(b)(1) 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 the Supreme Court of Pennsylvania 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.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted). Moreover, since the plain statutory language

of section 9545 demands that the PCRA petition “allege” all elements of the

statutory exception, it is clear that – to properly invoke the “newly

recognized constitutional right” exception – the petitioner must plead each of

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

      Within Appellant’s brief to this Court, Appellant claims that in

Newman, the Pennsylvania Superior Court held that “the mandatory

minimum sentences [are] . . . illegal” and that “[A]ppellant’s sentence

(mandatory minimum 5-15 [years]) clearly was deemed ‘unconstitutional.’”

Appellant’s Brief at 2.   This claim immediately fails, as Newman was an

opinion from this Court – not the Supreme Court.           Therefore, even if

Newman had recognized a new constitutional right, the ruling would not

have satisfied the “newly recognized constitutional right” exception to the

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J-S46025-15


time-bar.     See Copenhefer, 941 A.2d at 649-650 (“Subsection (iii) of

Section 9545(b)(1) 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 the Supreme Court of Pennsylvania after the time

provided in this section”).          Appellant’s attempt to invoke the “newly

recognized constitutional right” exception to the PCRA’s one-year time-bar

thus fails.    Further, since Appellant did not attempt to plead any other

exception to the time-bar, we conclude that Appellant’s petition is time-

barred and that our “courts are without jurisdiction to offer [Appellant] any

form of relief.”2 Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super.

2011). Therefore, we affirm the PCRA court’s order dismissing Appellant’s

second PCRA petition without a hearing.

       Order affirmed. Jurisdiction relinquished.




____________________________________________


2
  To the extent Appellant claims that his illegal sentencing claim is non-
waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[a]lthough legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or one of
the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (emphasis added).



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J-S46025-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2015




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