J-S57035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

CLYDE GREEN

                        Appellant                 No. 3587 EDA 2014


         Appeal from the PCRA Order entered November 14, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0908451-2003


BEFORE: MUNDY, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED OCTOBER 20, 2015

     Appellant, Clyde Green, appeals from the November 14, 2014 order

entered in the Court of Common Pleas of Philadelphia County, denying as

untimely his petition for collateral relief pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.

     The PCRA court provided the following procedural background:

     On April 22, 2005, following a trial by jury, Appellant was
     convicted of Involuntary Deviate Sexual Intercourse[] and
     Aggravated Indecent Assault. Appellant was sentenced by this
     [c]ourt to a total term of ten to twenty (10-20) years[’]
     imprisonment and was given credit for time served, as he had
     been incarcerated since July 2003. On November 30, 2006, the
     decision of this [c]ourt was affirmed [] by the Superior Court of
     Pennsylvania. On January 16, 2007, the Appellant filed his first
     PCRA petition, which was denied on February 12, 2008. On July
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       7, 2010, the Supreme Court of Pennsylvania denied Appellant’s
       petition for allowance of appeal.

PCRA Court Opinion, 10/30/14, at 1.1

       On April 7, 2014, Appellant filed the PCRA petition that is the subject

of this appeal.     In his petition, Appellant asserted his sentence was illegal

and that his petition satisfied the PCRA’s timeliness requirements because he

filed it “within sixty (60) days of becoming aware of the decision of the

United States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151

(2013).” Appellant’s Brief at 2. Appellant asserts he “became aware of the

Alleyne decision on or about March 15, 2014, when it became available on

the institution’s law library computers.” Id.

       On November 14, 2014, the PCRA court dismissed the petition as

time-barred. This appeal followed.

       We first note that Appellant’s brief does not include a Statement of

Questions Involved as required by Pa.R.A.P. 2111(a)(4) and Pa.R.A.P.

2116(a). Rule 2116(a) provides, in relevant part:
____________________________________________


1
  Our review of the record reveals an error in the trial court’s procedural
summary. This Court affirmed Appellant’s judgment of sentence on July 5,
2006, not November 30, 2006. Our Supreme Court denied Appellant’s
petition for allowance of appeal on November 30, 2006. He did not file a
writ of certiorari to the United States Supreme Court. Therefore, his
judgment of sentence was final on February 28, 2007, ninety days after our
Supreme Court denied his petition for allowance of appeal, when the time for
seeking review from the United States Supreme Court expired. Although it
does not change the ultimate disposition of the case, it does change the date
on which Appellant’s judgment of sentence became final and, consequently,
the deadline for filing his PCRA petition.



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      The statement of the questions involved must state concisely the
      issues to be resolved, expressed in the terms and circumstances
      of the case but without unnecessary detail. The statement will
      be deemed to include every subsidiary question fairly comprised
      therein. No question will be considered unless it is stated
      in the statement of questions involved or is fairly
      suggested thereby.

Pa.R.A.P. 2116(a) (emphasis added).        “[A]lthough this Court is willing to

construe liberally materials filed by a pro se litigant, pro se status generally

confers no special benefit upon an appellant. Accordingly, a pro se litigant

must comply with the procedural rules set forth in the Pennsylvania Rules of

the Court.” Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super.

2003) (citation omitted).

      Despite his failure to include a Statement of Questions Involved,

Appellant does offer the following proposition at the beginning of the

Argument section of his brief:

      A. Petitioner asserts that the trial court’s imposition of the ten (10) to
         twenty (20) year sentence, imposed in accordance with 42
         Pa.C.S.A. § 9714 was not charged, found beyond a reasonable
         doubt, admitted to by Appellant, or given notice of, and was
         therefore illegal and unconstitutional under the decision of the
         United States Supreme Court in Alleyne.

Appellant’s Brief at 3. Although Appellant’s failure to include a Statement of

Questions Involved essentially leaves us without any issue to consider, we




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conclude the statement in the Argument section of Appellant’s brief provides

an alternative foundation for Appellant’s claims.2

       “Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA

court’s determination is free of legal error.     The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record.”    Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013) (citations omitted).

       The PCRA statute directs that any PCRA petition, including a second or

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

judgment becomes final unless the petitioner proves an exception.            42

Pa.C.S.A. § 9545(b)(1). “[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.”          42 Pa.C.S.A. § 9545(b)(3).   Further, any

petition claiming an exception under § 9545(b)(1) must be filed within 60
____________________________________________


2
  We also note that Appellant’s brief lacks a summary of the argument in
violation of Pa.R.A.P. 2111(a)(6) and Pa.R.A.P. 2118.            We read the
statement set forth above as constituting a summary of Appellant’s
argument.     Although the inclusion of the statement does not excuse
Appellant’s rule violations, we shall proceed with our review of his appeal.

It merits mention that the Commonwealth, after requesting and securing an
extension for filing a brief, did not file an appellee’s brief in this case.
Therefore, the Commonwealth did not maintain it was in any way adversely
affected by the deficiencies in Appellant’s brief.



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days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545

(b)(2).   “[T]he PCRA’s timeliness requirements are jurisdictional in nature

and, accordingly, a PCRA court cannot hear untimely PCRA petitions.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (quoting

Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003)).

        Appellant’s judgment of sentence became final on February 28, 2007.3

Therefore, absent an exception, his petition filed on July 10, 2014 is

untimely.

        Appellant asserts his petition is saved from the PCRA’s time bar by a

retroactive    constitutional    right   recognized    in   Alleyne   under   Section

9545(b)(1)(iii).     However, before this Court can entertain his claim of a

retroactive constitutional right, Appellant must demonstrate he filed his

petition within 60 days of the date his claim could have been presented, as

required by Section 9545(b)(2).

        As noted above, Appellant argues he satisfied the PCRA’s timeliness

requirements by filing his petition within 60 days of “becoming aware of”

Alleyne, i.e., “on or about March 15, 2014, when it became available on the

institution’s library computers.”        Appellant’s Brief at 2.   However, Alleyne

was decided on June 17, 2013, more than nine months before Appellant filed

the instant petition.

____________________________________________


3
    See supra footnote 1.



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     In Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007), this

Court explained:

     [A]ny petition invoking an exception to the PCRA’s timing
     provisions must be filed within sixty days of the date the claim
     first could have been presented. 42 Pa.C.S.A. § 9545(b)(2);
     see also Commonwealth v. Lark, 560 Pa. 487, 494, 746 A.2d
     585, 588 (2000) (a petitioner must plead and prove specific
     facts that demonstrate his claim was raised within the sixty-day
     timeframe). With regard to an after-recognized constitutional
     right, this Court has held that the sixty-day period begins to run
     upon     the   date   of    the   underlying   judicial  decision.
     Commonwealth v. Baldwin, 789 A.2d 728 (Pa. Super. 2001).

Id. at 517.     Further, in Commonwealth v. Brandon, 51 A.3d 231 (Pa.

Super. 2012), this Court rejected a similar claim, noting that ignorance of

the law does not excuse the failure to file a petition within 60 days of the

date a decision is announced, and stating, “Neither the court system nor the

correctional system is obliged to educate or update prisoners concerning

changes in case law.” Id. at 235 (quoting Baldwin, 789 A.2d at 731).

     Appellant clearly failed to file his petition within 60 days of the

Alleyne decision.    “[W]hen a PCRA petition [is] entitled to one of the

[§ 9545(b)(1)] exceptions, but [is] not filed within 60 days of the date that

the claim could have been first brought, the trial court has no power to

address   the    substantive   merits   of   a   petitioner’s   PCRA   claim.”

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

     Appellant’s petition was untimely filed. Therefore, this Court, as well

as the PCRA court, lacks jurisdiction to address the substantive issue of

Appellant’s PCRA claim.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




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