J-S10041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

NATHAN KASSIEM ROBINSON,

                            Appellant                    No. 2333 EDA 2015


                   Appeal from the PCRA Order June 18, 2015
             in the Court of Common Pleas of Northampton County
               Criminal Division at No.: CP-48-CR-0002518-2007


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED FEBRUARY 03, 2016

        Appellant, Nathan Kassiem Robinson, appeals from the court’s denial

of his serial petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        On February 6, 2008, a jury convicted Appellant of one count each of

possession     with   intent    to   deliver   (PWID)   and   possession   of   drug

paraphernalia.1 The court sentenced Appellant to an aggregate term of not

less than sixty-three nor more than 126 months’ incarceration, which

included a mandatory minimum for the PWID conviction.               The trial court


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*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(30) and (32), respectively.
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denied    Appellant’s        post-trial   motion    and    motion   for    reconsideration.

Appellant filed a direct appeal, which he withdrew on December 16, 2008.

       On January 26, 2009, Appellant filed a first pro se PCRA petition.2 On

February 4, 2009, the court appointed counsel who filed a Turner/Finley3

no-merit letter on April 3, 2009.              On April 13, 2009, the court denied

Appellant’s petition.        On April 27, 2009, Appellant timely appealed pro se

while still represented by counsel.             In light of the “procedural quagmire

caused by this textbook case of hybrid representation,” this Court vacated

the PCRA court’s order denying the first petition and remanded for further

proceedings on July 20, 2010.              (See Commonwealth v. Robinson, No.

1221 EDA 2009, unpublished memorandum at *8 (Pa. Super. filed 2010)).

After remand, the PCRA court again denied the first petition on November

12, 2010.       This Court affirmed the denial on July 3, 2013.                       (See

Commonwealth            v.     Robinson,       82   A.3d    1053    (Pa.    Super.   2013)

(unpublished memorandum)).



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2
  The history of Appellant’s first PCRA petition is a procedural quagmire
caused by Appellant’s filing of myriad pro se documents while represented
by counsel.   (See Robinson, infra, No. 1221 EDA 2009, at *3-*8).
Therefore, we present only the relevant facts, which we take from this
Court’s July 20, 2010 memorandum and our independent review of the
record.
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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       On February 13, 2015, Appellant filed the instant PCRA petition. On

February 19, 2015, the court appointed counsel.        Following a conference

held on April 10, 2015, the court denied Appellant’s petition as untimely on

June 18, 2015. Appellant timely appealed.4

       Appellant raises two questions for this Court’s review:

       1.     [Whether] the PCRA court erred by finding that the petition
       was untimely and that the exception to the one-year limit was
       not met where [Appellant] was prevented from discovering his
       claim until the legal resource[s] at the state correctional
       institution were updated[?]

       2.    [Whether] the PCRA court erred in holding that [Appellant]
       was not entitled to relief from an illegal sentence because he
       attacked the mandatory minimum in the context of a collateral
       attack through a PCRA petition[?]

(Appellant’s Brief, at 6) (some capitalization omitted).

              This Court examines PCRA appeals in the light most
       favorable to the prevailing party at the PCRA level. Our review
       is limited to the findings of the PCRA court and the evidence of
       record[.] Additionally, [w]e grant great deference to the factual
       findings of the PCRA court and will not disturb those findings
       unless they have no support in the record. In this respect, we
       will not disturb a PCRA court’s ruling if it is supported by
       evidence of record and is free of legal error. However, we afford
       no deference to its legal conclusions. [W]here the petitioner
       raises questions of law, our standard of review is de novo and
       our scope of review is plenary.


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4
   Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on July 24, 2015.          See
Pa.R.A.P. 1925(b). The court filed an opinion on July 27, 2015, in which it
relied on the reasons stated in its June 18, 2015 opinion. See Pa.R.A.P.
1925(a).



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Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

     Here, the PCRA court found that Appellant’s petition was untimely and

that he failed to plead and prove any exception to the PCRA time-bar. (See

Order, 6/18/15). We agree.

     It is well-settled that:

     A PCRA petition, including a second or subsequent one, must be
     filed within one year of the date the petitioner’s judgment of
     sentence became final, unless he pleads and proves one of the
     three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
     judgment becomes final at the conclusion of direct review by this
     Court or the United States Supreme Court, or at the expiration
     of the time for seeking such review.             42 Pa.C.S.[A.] §
     9545(b)(3).        The PCRA’s timeliness requirements are
     jurisdictional; therefore, a court may not address the merits of
     the issues raised if the petition was not timely filed.       The
     timeliness requirements apply to all PCRA petitions, regardless of
     the nature of the individual claims raised therein. The PCRA
     squarely places upon the petitioner the burden of proving an
     untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

     In the case sub judice, Appellant’s judgment of sentence became final

on December 16, 2008, at the time he withdrew his appeal in this Court.

See Commonwealth v. Conway, 706 A.2d 1243, 1244 (Pa. Super. 1997)

(observing that “[a]ppellant’s judgment of sentence became final when his

direct appeal was discontinued at his request.”); see also 42 Pa.C.S.A. §

9545(b)(3). Therefore, he had one year from that date to file a petition for

collateral relief unless he pleaded and proved that a timeliness exception

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applied. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Hence, Appellant’s current

petition, filed on February 13, 2015, is untimely on its face, and we lack

jurisdiction to consider its merits, unless he pleads and proves one of the

statutory exceptions to the time-bar.

      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right. See id. When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the   three   exceptions     to   the   PCRA   timing   requirements.   See

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If

the petition is determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”) (citation omitted).    Also, a PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claim

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

      Here, although not phrased as such, Appellant is attempting to claim

the applicability of the newly recognized constitutional right exception. (See

Appellant’s Brief, at 9-13); see also 42 Pa.C.S.A. § 9545(b)(1)(iii).

Specifically, he argues that the United States Supreme Court’s reasoning in


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Alleyne v. United States, 133 S.Ct. 2151 (2013), should be applied to his

case.    (See Appellant’s Brief, at 9-13).   However, this claim is unavailing

because Appellant has failed to plead and prove the applicability of Section

9545(b)(1)(iii).

        It is well-settled that:

              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 th[e Pennsylvania Supreme C]ourt 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 . . . to cases on collateral review.

Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011)

(citation omitted) (emphasis in original).

        In Alleyne, the Supreme Court of the United States held that “facts

that increase mandatory minimum sentences must be submitted to the jury”

and must be found beyond a reasonable doubt.         Alleyne, supra at 2163.

“The Alleyne decision, therefore, renders those Pennsylvania mandatory

minimum sentencing statutes that do not pertain to prior convictions

constitutionally infirm insofar as they permit a judge to automatically

increase a defendant’s sentence based on a preponderance of the evidence

standard.”     Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.

2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014) (footnote omitted).




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       In his first issue, Appellant argues that his sentence is illegal 5 because

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014), appeal denied,

121 A.3d 494 (Pa. 2015), and Commonwealth v. Thompson, 93 A.3d 478

(Pa. Super. 2014), created a new constitutional right when they applied

Alleyne to the mandatory minimum statute under which he was sentenced,

and declared it unconstitutional. (See Appellant’s Brief, at 9). Although he

observes that the cases were filed on November 21, 2014 and May 22,

2014, respectively, he argues that the failure to file his PCRA petition within

sixty days of these decisions should be excused because the update to the

prison’s legal resources are only performed periodically and he was unable to

discover them until January 2015.              (See id.).   Appellant’s first issue does

not merit relief.

       It is well-settled that ignorance of the law does not excuse a

petitioner’s failure to file his petition within sixty days of the filing of the

judicial   decision     which    he    claims      established    a   newly-recognized

constitutional right. See Commonwealth v. Brandon, 51 A.3d 231, 235

(Pa. Super. 2012) (observing that “[n]either the court system nor the
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5
  We first observe that, although Appellant argues that his issue is non-
waivable because it challenges the legality of his sentence, (see Appellant’s
Brief, at 9), we observe: “[T]hough not technically waivable, a legality [of
sentence] claim may nevertheless be lost should it be raised . . . in an
untimely PCRA petition for which no time-bar exception applies, thus
depriving the [C]ourt of jurisdiction over the claim. . . .” Miller, supra at
995 (citation omitted). Therefore, Appellant’s argument in this regard lacks
merit.



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correctional system is obliged to educate or update prisoners concerning

changes in case law.”) (citation omitted). Therefore, Appellant’s first claim

fails on this basis.

       Moreover, we observe that:

       . . . [T]he language of section 9545(b)(1)(iii) does not
       contemplate that a decision of [the Superior] Court . . . may
       provide the basis for an exception to the time-bar. Rather, the
       new constitutional right must have been recognized in a decision
       of either the Supreme Court of the United States or the Supreme
       Court of Pennsylvania.

Id. at 235-36 (citation omitted).

       We note that both Fennell and Thompson are Superior Court cases,

and therefore they cannot form the basis for the newly recognized

constitutional right exception, even if Appellant timely filed a petition based

on them.     See id.; see also 42 Pa.C.S.A. § 9545(b)(1)(iii).          In fact, the

cases did not actually recognize a new constitutional right, but merely

applied Alleyne to their facts.            See, e.g., Fennell, supra at 19-20;

Thompson, supra at 493-94.               Therefore, Appellant’s first claim fails on

these bases as well.6



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6
   Appellant mentions governmental interference, (See Appellant’s Brief, at
2), but to the extent he is attempting to raise such a claim, it would not
merit relief because he does not provide any law or discussion in support of
it, and, in any event, prison employees are not under a duty “to update
prisoners concerning changes in case law.” Brandon, supra at 235; see
Pa.R.A.P. 2119(a)-(b).



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        In his second issue, Appellant maintains that the PCRA court erred in

finding that he was not entitled to relief because he challenged his

mandatory minimum sentence pursuant to Alleyne on collateral review.

(See Appellant’s Brief, at 6, 11-13). Appellant’s claim lacks merit.

        In considering whether Alleyne provides an exception to the PCRA

time-bar, this Court has observed that:

              Even assuming that Alleyne did announce a new
        constitutional right, 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. This is fatal to Appellant’s argument regarding the
        PCRA time-bar.

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations

and footnote omitted); see also Commonwealth v. Riggle, 119 A.3d

1058, 1067 (Pa. Super. 2015) (holding “Alleyne is not entitled to

retroactive effect in th[e] PCRA setting.”).

        Therefore, Appellant’s reliance on Alleyne is fatal to his claim.        See

Miller, supra at 995. Hence, his second issue fails.

        Accordingly,   because   Appellant   failed   to   plead   and   prove   the

applicability of a PCRA timeliness exception, we conclude that the PCRA

court properly dismissed his untimely petition without a hearing on the basis

that it lacked jurisdiction. See Henkel, supra at 20; Johnston, supra at

1126.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2016




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