J-S13045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

AYUB ABDULLAH

                             Appellant                No. 2521 EDA 2016


                   Appeal from the PCRA Order June 22, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0205311-2006

BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 03, 2017

        Appellant, Ayub Abdullah, appeals pro se from the order dismissing his

second Post Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant

contends that the PCRA court erred in rejecting his claim that he timely filed

his petition in light of Alleyne v. United States, 133 S. Ct. 2151 (2013),

and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). We affirm.

        The PCRA court summarized the procedural history of this appeal as

follows:

              On November 3, 2005, [Appellant] was arrested and
           charged with attempted murder, aggravated assault, and
           conspiracy to commit aggravated assault. From January
           24 to February 1, 2007, a trial was held in the presence of
           a jury.   The following facts were proven at trial: On
           October 31, 2005, [Appellant] and a group of ten other
           males approached the complainant, 13-year-old Jacob

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9545.
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        Gray (“Gray”) on Woodland Avenue and began punching
        him. After Gray fell to the ground, they proceeded to kick
        Gray until they were interrupted by a passing motorist and
        fled. As a result of the beating, Gray suffered a seizure
        and was in a coma for a period of time. On February 6,
        2007, [Appellant] was found guilty of conspiracy to commit
        aggravated assault[, but acquitted of the remaining
        offenses].   On June 14, 2007, this [c]ourt sentenced
        [Appellant] to 5 to 10 years state incarceration plus 10
        years probation on his conspiracy charge.[2] [Appellant]
        subsequently did not file a direct appeal.

           On August 23, 2007, [Appellant] filed a pro se petition
        pursuant to the PCRA, raising claims based upon
        ineffective   assistance    of  counsel,   after-discovered
        evidence, and an excessive sentence. On January 23,
        2008, Norman Scott, Esquire, was appointed as PCRA
        counsel.     On July 17, 2008, Mr. Scott filed a letter
        pursuant to [Commonwealth v. Finley, 550 A.2d 213
        (Pa. Super. 1998) (en banc)], indicating that the issues
        raised in [Appellant]’s pro se petition were without merit.
        On that same day, this [c]ourt sent [Appellant] a notice
        pursuant to Rule 907, indicating that his petition would be
        dismissed on the basis of counsel’s Finley letter.
        [Appellant] did not file a response to the 907 notice. On
        October 8, 2008, this [c]ourt dismissed [Appellant]’s
        petition without a hearing as being without merit.
        [Appellant] subsequently did not appeal the dismissal of
        his petition.

           On October 16, 2015, [Appellant] filed the instant
        petition for relief pursuant to PCRA, alleging the retroactive
        application of a constitutional right.            Specifically,
        [Appellant] argued that in [Hopkins] the Pennsylvania
        Supreme Court had held that 18 Pa.C.S.A. § 6317 was
        unconstitutional pursuant to [Alleyne]and that he was
        sentenced under a structurally similar statute, 42

2
  Appellant asserts that he was sentenced to five to ten years’ imprisonment
for conspiracy and five to ten years’ imprisonment for aggravated assault, a
charge on which he was acquitted. Appellant’s Brief at 5. There is no
support for Appellant’s contention that he was sentenced for the charge of
aggravated assault.



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            Pa.C.S.A. § 9712. [Appellant] further argued that the
            instant petition was timely as he had filed it within 60 days
            of the date the Hopkins opinion was made available on
            the computers at his correctional facility.

               On May 27, 2016, this [c]ourt sent [Appellant] a notice
            pursuant to Rule 907, indicating that his petition would be
            dismissed as untimely and without merit. On June 14,
            2016, [Appellant] filed a reply to this [c]ourt’s 907 notice,
            again raising the argument found in his pro se petition. On
            June 22, 2016, after independent review of [Appellant]’s
            pro se petition and [Appellant]’s response to the 907
            notice, this [c]ourt dismissed [Appellant]'s petition without
            a hearing as untimely and without merit. On July 21,
            2016, [Appellant] appealed the dismissal of his petition to
            the Superior Court.

PCRA Ct. Op., 8/19/16, at 1-3. This appeal followed.

      Appellant presents a single question on review challenging the PCRA

court’s determinations that his second PCRA petition was untimely filed and

that his legality of sentence claim would not be cognizable in a timely filed

petition.     Appellant’s Brief at 4.     With respect to the timeliness of his

petition, Appellant claims that “[t]he legality of sentence is a nonwaivable

issue.”     Id. at 7.     He sets forth several additional arguments that his

sentence is illegal. See id. at 10-11. No relief is due.

      Because the timeliness requirements of the PCRA are jurisdictional in

nature, we first review the PCRA court’s determination that Appellant’s

petition was untimely. See Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999). “Our standard of review of a PCRA court’s dismissal of a PCRA

petition is limited to examining whether the PCRA court’s determination is

supported      by   the   evidence   of    record   and   free   of   legal   error.”


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Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en

banc) (citation omitted).

      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”     Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (citations and footnote omitted).

         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. Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (citation

omitted).   The PCRA time limitations are not subject to the doctrine of

equitable tolling, and all claims, including legality of sentencing challenges,

must be presented in a timely PCRA petition. Fahy, 737 A.2d at 222-23.

      Instantly, Appellant’s judgment of sentence became final on July 16,

2007. See 42 Pa.C.S. § 9545(b)(3). Thus, his current petition, which was

filed in October 2015, is untimely on its face. Appellant fails to develop a


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meaningful argument that he met an exception under 42 Pa.C.S. §

9545(b)(1). See Appellant’s Brief at 7.

     In any event, Appellant’s reliance on Alleyne and Hopkins is of no

avail because the constitutional rights discussed in those cases have not

been held to be retroactive by the Pennsylvania or United States Supreme

Court, and do not apply to his sentence.3 See 42 Pa.C.S. § 9545(b)(1)(iii);

Miller, 102 A.3d at 995; see also Commonwealth v. Furgess, 149 A.3d

90, 94 (Pa. Super. 2016) (holding retroactive constitutional rule prohibiting

mandatory life without parole sentences for minor offenders—set forth in

Miller v. Alabama, 132 S. Ct. 2455 (2012), and Montgomery v.

Louisiana, 136 S. Ct. 718 (2016)—provides no basis for an exception under

Section 9545(b)(1)(iii) when the petitioner was older than eighteen when he

committed the offense). Thus, we agree with the PCRA court that it lacked

jurisdiction to address the merits of Appellant’s claims. See Fahy, 737 A.2d

at 222-23.

     Order affirmed.




3
 To the contrary, the Pennsylvania Supreme Court has held that “Alleyne
does not apply retroactively to cases pending on collateral review.”
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2017




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