J-S29043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RONALD HOOKS,                              :
                                               :
                      Appellant                :   No. 1936 EDA 2016

                   Appeal from the PCRA Order May 18, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0912111-2003


BEFORE:      LAZARUS, SOLANO, JJ., and STEVENS,P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 17, 2017


        Appellant Ronald Hooks appeals pro se from the Order entered in the

Court of Common Pleas of Philadelphia County on May 18, 2016, dismissing

as untimely his second petition filed pursuant to the Post Conviction Relief

Act (PCRA).1 We affirm.

        The trial court previously set forth the relevant facts and procedural

history herein as follows:

        I. PROCEDURAL HISTORY
               On March 31, 2005, [Appellant] entered into a negotiated
        guilty plea before the Honorable John Poserina, Jr. to one count
        of burglary and two counts of robbery. Petitioner was thereafter
        sentenced to twelve and one-half to twenty-five years'
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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     incarceration in accordance with his negotiations with the
     Commonwealth.1 [Appellant] did not pursue a direct appeal.
            On December 5, 2005, [Appellant] filed a timely pro se
     PCRA petition. Counsel was appointed and subsequently filed an
     amended petition on November 15, 2007. On December 12,
     2008, the PCRA court formally denied the petition for lack of
     merit. The Superior Court affirmed the PCRA court's order on
     April 1, 2010.2 Petitioner did not seek review in the Pennsylvania
     Supreme Court.
            On March 16, 2015, Petitioner filed the current pro se
     PCRA petition, his second. Pursuant to Pennsylvania Rule of
     Criminal Procedure 907, Petitioner was served with notice of the
     court's intention to dismiss his PCRA petition on March 8, 2016.3
     Petitioner filed a response to the court's Rule 907 notice on
     March 21, 2016. The lower court dismissed Petitioner's petition
     as untimely on May 18, 2016. Petitioner filed the instant notice
     of appeal to the Superior Court on June 7, 2016.
     II. FACTS
            The Commonwealth presented evidence that on July 23,
     2002, at approximately 2:30 a.m., [Appellant] broke into a
     rowhome on East Moyamensing Avenue in Philadelphia. The
     home was occupied by Tiffany Lawson and her sister, Renee
     Lawson. Both were asleep. [Appellant] woke Tiffany, put a towel
     over her face and demanded money. While holding her down, he
     tried to pull down her shorts. After a brief struggle, he let her up
     to go get some money. [Appellant] told Tiffany he had a gun and
     would kill both her and her sister. They then woke Renee who
     was sleeping downstairs. Renee retrieved seventy dollars from
     her purse and gave it to [Appellant]. [Appellant] then exited the
     home through the back door. [Appellant’s] fingerprints were
     subsequently detected under the handle of the back gate.
     [Appellant] was arrested for his crime on July 17, 2003. See
     Hooks, unpublished memorandum 4/1/10 at 3-4.
     ____
     1
       See N.T. 3/31/05 at 6.
     2
        Commonwealth v. Hooks, 996 A.2d 544 (Pa. Super. 2010)
     (unpublished memorandum).
     3
       The Honorable Leon W. Tucker issued the order and opinion in
     this matter in his capacity as Supervising Judge of the Criminal
     Section of the Court of Common Pleas of Philadelphia – Trial
     Division, as the trial judge is no longer sitting.




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Trial Court Opinion, filed 9/21/16, at 1-3.

       In his December 5, 2005, pro se PCRA petition, Appellant averred his

plea had not been knowingly and voluntarily entered.              Counsel was

appointed and in an Amended PCRA petition raised the issue of the

ineffectiveness of trial counsel for misadvising Appellant that he was subject

to the “Third Strike” provision of 42 Pa.C.S.A. § 9714 at the time of

sentencing. As the PCRA court noted, it denied Appellant’s PCRA petition on

December 12, 2008, and this Court affirmed. Commonwealth v. Hooks,

996 A.2d 544 (Pa.Super. 2010) (unpublished memorandum).

       On March 16, 2015, Appellant filed a “Motion to Modify Sentence”

which the trial court correctly treated as Appellant’s second PCRA petition.2

In addition, on August 17, 2015, Appellant filed a supplemental petition

wherein he invoked the United States Supreme Court’s decision in Johnson

v. United States, 135 S.Ct. 2551, 192 L.Ed. 569 (2015) which had been

decided less than sixty days earlier on June 26, 2015.3 On March 8, 2016,


____________________________________________


2
  Appellant’s allegation his sentence was illegal falls within the purview of the
PCRA. See 42 Pa.C.S.A. § 9542 (stating the subchapter “provides for an
action by which persons . . . serving illegal sentences may obtain collateral
relief. The action established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist when this subchapter
takes effect. . .”).
3
  Therein, the United States Supreme Court held that the definition of a
“violent felony” was unconstitutionally vague and, accordingly, the
imposition of a mandatory minimum sentence under the residual clause of
(Footnote Continued Next Page)


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the PCRA court filed its Notice of Intent to Dismiss without a Hearing

pursuant to Pa.R.Crim.P. 907. Appellant filed his response thereto on March

21, 2016.

         In its Order entered on May 18, 2016, the PCRA court dismissed the

instant PCRA petition as untimely. Appellant filed a timely notice of appeal

on June 7, 2016.         In his appellate brief, Appellant presents the following

Statement of Questions Involved, which we reproduce verbatim:

         1.     Did the PCRA court err in concluding that [Appellant[’s]]
         petition was not a timely petition when [Appellant] invoked 1 out
         of 3 recent cases…In a timely manner[?]
         2.     Did the PCRA court err in concluding that [Appellant] was
         not a “three strike” offender when it was quite obvious that he
         were[?] [sic]
         3.     Did the PCRA court err by dismissing [Appellant[’s]]
         petition without a hearing, then coming to such conclusions[?]

Brief of the Appellant at 5 (unnumbered) (unnecessary capitalization

omitted).

         When reviewing the propriety of an order denying PCRA relief, this

Court is limited to a determination of whether the evidence of record

supports the PCRA court’s conclusions and whether its ruling is free of legal

error.     Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178,

185 (2016).      This Court will not disturb the PCRA court’s findings unless



                       _______________________
(Footnote Continued)

the federal Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), violated the
United States Constitution’s guarantee of due process.



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there is no support for them in the certified record.    Commonwealth v.

Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).

      At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and

where a petitioner raises questions of law, our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d

118, 121 (Pa.Super. 2014).

      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory

exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The

petitioner bears the burden of pleading and proving an applicable statutory

exception.   If the petition is untimely and the petitioner has not pled and

proven an exception, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.   Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.

2013).

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (b) Time for filing petition.--

      (1)    Any petition under this subchapter, including a second or
             subsequent petition, shall be filed within one year of the
             date the judgment of sentence becomes final, unless the
             petition alleges and the petitioner proves that:

            (i) the failure to raise the claim previously was the result
      of interference by government officials with the presentation of


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      the claim in violation of the Constitution or laws of this
      Commonwealth or the Constitution or laws of the United States:
            (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 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.

42 Pa.C.S.A. § 9545(b)(1). In addition, any petition attempting to invoke

one of these exceptions “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      Herein, Appellant’s judgment of sentence was entered on March 31,

2005, and he did not file a direct appeal with this Court. Thus, Appellant’s

judgment of sentence became final thirty days thereafter on April 30, 2005,

at which time Appellant’s time for filing a timely notice of appeal with this

Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (“a judgment becomes 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 time for seeking the review”).

      A timely PCRA petition had to have been filed by April 30, 2006;

therefore, the instant PCRA petition filed almost a decade later on August

17, 2015, is patently untimely, and the burden 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 invoke a statutory

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exception to the PCRA time-bar, a petitioner must properly plead and prove

all required elements of the exception).

        In this vein, although Appellant generally references three cases in the

statement of his questions presented, in an argument consisting of merely

two sentences he purports to invoke the “newly recognized constitutional

right” exception to the time-bar under only Johnson v. United States,

supra.     However, Appellant was not sentenced pursuant to the federal

Armed Career Criminal Act, nor did Johnson announce a new constitutional

right. Rather the Court applied therein the “well recognized” void-for-

vagueness doctrine to the Act. Johnson, 135 S.Ct. at 2557, 192 L.Ed. at

____.     Indeed, as this Court noted previously, Appellant received the

sentence he had negotiated with the Commonwealth which avoided any

mandatory sentencing. Commonwealth v. Hooks, No. 153 EDA 2009,

unpublished memorandum at 6 (Pa.Super. filed April 1, 2010).           For this

reason, Appellant’s additional single-paragraph argument in support of his

claims that the PCRA court erred when it concluded he wasn’t a “Three

Strike” offender and that the result of the PCRA proceeding likely would have

been different if he had been granted an evidentiary hearing on the matter

lacks merit.4

____________________________________________


4
  To the extent Appellant sought to avail himself of the newly-recognized
constitutional right exception to the PCRA time-bar in his PCRA petition
pursuant to the United States Supreme Court’s decision in Alleyne v.
(Footnote Continued Next Page)


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      As Appellant has failed to plead and prove one of the aforementioned

exceptions to the PCRA time-bar, the courts of this Commonwealth are

without jurisdiction to offer Appellant any form of relief. Commonwealth v.

Jackson, 30 A.3d 516, 523 (Pa.Super. 2011).       Accordingly, the PCRA court

properly denied Appellant’s patently untimely, serial PCRA petition without a

hearing.

      Order affirmed.




                       _______________________
(Footnote Continued)

United States, 133 S.Ct. 2151 (2013) and this Court’s decision in
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) to support his
claim he has been serving an illegal mandatory minimum sentence
notwithstanding the fact Appellant received a negotiate sentence, we note
he failed to file his PCRA petition within sixty days of the date upon which
either case had been decided; Alleyne was decided on June 17, 2013, and
Newman was decided on August 20, 2014. See 42 Pa.C.S.A. § 9545(b)(2);
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000) (stating “when a PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of the three limited
exceptions, or entitled to one of the exceptions, but not filed within 60 days
of the date that the claim could have been first brought, the PCRA court has
no power to address the substantive merits of a petitioner’s PCRA claims”).
Moreover, in Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014),
this Court observed that Alleyne does not invalidate a mandatory minimum
sentence when a challenge thereto is presented in an untimely PCRA
petition.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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