J-S36039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TROY DOUGLAS FRY,

                        Appellant                   No. 1863 MDA 2015


                Appeal from the PCRA Order October 6, 2015
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0001279-2013

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED APRIL 21, 2016

      Appellant appeals pro se from the order entered in the Court of

Common Pleas of Lancaster County dismissing his first petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

      The relevant facts and procedural history are as follows:     Appellant

was arrested, and on July 2, 2013, represented by counsel, he entered a

guilty plea to the charge of robbery, 18 Pa.C.S.A. § 3701. At the guilty plea

colloquy, Appellant admitted “that on February 11th of 2013 at the Superstar

Grocery Story on North Lime Street in Lancaster, [he] placed Peter Johnson

in fear of serious bodily injury by pointing a black pistol at him.”     N.T.,

7/2/13, at 3.   On that same date, after Appellant waived a presentence

investigation report, the trial court sentenced him to five years to ten years


*Former Justice specially assigned to the Superior Court.
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in prison, plus directed him to pay a fine of $100.00 and costs.         Despite

being informed of his right to do so, Appellant filed neither a post-sentence

motion nor a direct appeal.

       On July 16, 2015, Appellant filed a pro se PCRA petition,1 and the

PCRA court appointed counsel to represent Appellant. On August 20, 2015,

counsel filed an amended PCRA petition, and thereafter, the Commonwealth

filed a response.        On September 16, 2015, the PCRA court provided

Appellant with a Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA

petition without an evidentiary hearing on the basis it was untimely filed.

       Appellant filed a pro se response.        By orders entered on October 6,

2015, the PCRA court dismissed Appellant’s PCRA petition and granted

counsel’s motion to withdraw his representation.2 This timely pro se appeal

followed, and all Pa.R.A.P. 1925 requirements have been met.

       Preliminarily, we must determine whether Appellant’s first PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
____________________________________________


1
  Although Appellant’s pro se PCRA petition was docketed on July 20, 2015,
the prison envelope in which Appellant’s petition was mailed bears a time
stamp of July 16, 2015. Accordingly, pursuant to the prisoner mailbox rule,
we deem Appellant’s PCRA petition to have been filed on July 16, 2015. See
Commonwealth v. Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing
prisoner mailbox rule).
2
  Counsel’s motion to withdraw was neither docketed nor included in the
certified record. However, Appellant does not challenge the PCRA court’s
order allowing counsel to withdraw, or raise any issue with his proceeding
pro se on appeal. We shall not raise sua sponte the propriety of the trial
court’s order granting counsel’s motion to withdraw. See Commonwealth
v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009).



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(Pa.Super. 2000).    “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”         Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

final “at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law of the United States;


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      (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 Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted). Moreover, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline. Our Supreme Court has held

that any petition invoking an exception must show due diligence insofar as

the petition must be filed within 60 days of the date the claim could have

first been presented. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d

339 (2013).

      Here, Appellant did not file a direct appeal from the judgment of

sentence entered after he pled guilty before the trial court. Thus, his

judgment of sentence became final on August 1, 2013, thirty days following

the imposition of his sentence.       Since Appellant filed the current PCRA

petition on July 16, 2015, nearly two years after his judgment of sentence

became final, the petition is patently untimely under the PCRA. See 42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Gamboa-Taylor, 562 Pa. 70,

753 A.2d 780 (2000) (holding a PCRA petition filed more than one year after

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judgment of sentence becomes final is untimely and the PCRA court lacks

jurisdiction to address the petition unless the petitioner pleads and proves

statutory exception to PCRA time-bar).

     This does not end our inquiry, however, as Appellant asserts he is

entitled to Section 9545(b)(ii)’s newly-discovered fact exception. Appellant’s

Brief at 6-7.   Our Supreme Court has previously described a petitioner’s

burden under the newly-discovered fact exception as follows:

     [Section 9545](b)(1)(ii) has two components, which must be
     alleged and proved. Namely, the petitioner must establish that:
     1) “the facts upon which the claim was predicated were
     unknown” and 2) “could not have been ascertained by the
     exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
     added).

Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1272

(2007) (emphasis in original). “Due diligence demands that the petitioner

take reasonable steps to protect his own interests. A petitioner must explain

why he could not have learned the new fact(s) earlier with the exercise of

due diligence. This rule is strictly enforced.” Commonwealth v. Williams,

35 A.3d 44, 53 (Pa.Super. 2011) (citation omitted).

     Instantly, Appellant argues that the United States Supreme Court’s

decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013),

and the Pennsylvania Supreme Court’s decision in Commonwealth v.

Hopkins, ___ Pa. ___, 117 A.3d 247 (2015), satisfy the newly-discovered

fact exception. However, judicial opinions are not newly-discovered facts for

the purposes of Section 9545(b)(1)(ii). Commonwealth v. Watts, 611 Pa.

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80, 23 A.3d 980 (2011). In any event, Appellant further avers that Section

9545(b)(1)(ii) is satisfied on the basis the “newly-discovered fact” is his

sentence being illegal and unconstitutional in light of the Pennsylvania

Supreme Court’s decision in Hopkins, supra. Appellant’s Brief at 6-7.

      In our view, notwithstanding the label given to it, we agree with the

PCRA court that Appellant’s alleged new fact, i.e., that his sentence is illegal

and unconstitutional, is actually an attempt to raise an argument under the

new constitutional right exception of Section 9545(b)(1)(iii). In this vein, we

note Appellant acknowledges that the “fact” of his alleged illegal sentence

stems from Alleyne and Hopkins, which as indicated supra, are not facts,

but judicial decisions. See Watts, supra.

      In Alleyne, the Supreme Court held, as a matter of federal

constitutional law, “that any fact that increases the mandatory minimum is

an element [of an aggravated offense] that must be submitted to the jury.”

Alleyne, 133 S.Ct. at 2155 (quotation marks omitted). However, Appellant

concedes in his brief that Alleyne does not satisfy the new constitutional

right exception at Section 9545(b)(1)(iii), and he indicates that he does not

wish to rely on this exception.     See Appellant’s Brief at 7-8. See also

Commonwealth v. Miller, 102 A.3d 988, 994-95 (Pa.Super. 2014) (noting

that Section 9545(b)(1)(iii) does not apply to Alleyne since neither the

United States Supreme Court nor our Supreme Court have held Alleyne to

apply retroactively to cases on collateral review).     Moreover, and in any


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event, we note Appellant’s claim would fail since Alleyne was decided on

June 17, 2013, and Appellant’s July 16, 2015, petition was filed well beyond

the 60-day time limit of Section 9545(b)(2).

      Moreover,   we    conclude   Hopkins     does   not    satisfy   the   new

constitutional right exception at Section 9545(b)(1)(iii).    In Hopkins, our

Supreme Court held that under Alleyne the mandatory minimum sentencing

scheme set forth in 18 Pa.C.S. § 6317 (“Drug-free school zones”) is

unconstitutional in its entirety, as certain provisions of the statute do not

adhere to Alleyne’s rule and are not severable from the remaining portions

of the statute. Hopkins, 117 A.3d at 262. However, the Hopkins decision

did not announce a “new rule;” but rather, it simply assessed the validity of

Section 6317 under Alleyne, and concluded that particular mandatory

minimum sentencing statute is unconstitutional.        Nevertheless, even if

Hopkins announced a new rule, neither our Supreme Court nor the United

States Supreme Court has held that Hopkins applies retroactively to post-

conviction petitioners such as Appellant.      Consequently, to the extent

Appellant attempts to rely on Hopkins, he has not satisfied the timeliness

exception of Section 9545(b)(1)(iii).

      Finally, Appellant maintains that his sentence should be vacated since

“an unconstitutional statute is ineffective for any purpose as it’s [sic]

unconstitutionality dates from the time of the enactment and not merely

from the date of the decision holding it so.” Appellant’s Brief at 8 (quoting


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Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa.Super. 2010)).

However, as this Court has held, “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.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super.

2104) (citation omitted).      Thus, even assuming, arguendo, Appellant

sentence was illegal from its inception, and not just allegedly from the date

of the decisions rendered in Alleyne and Hopkins, he must prove the

applicability of one of the above-stated timeliness exceptions in order for this

Court to have jurisdiction to correct the illegal sentence. See Miller, supra.

      Here, Appellant’s PCRA petition in untimely, and he has proven no

exception. Therefore, the courts lack jurisdiction to consider the merits of

the issues, including legality of sentence, presented in Appellant’s petition.

      For all of the foregoing reasons, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2016




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