J-S27007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
ANDRE ROBINSON                           :
                                         :
                   Appellant             :        No. 1937 EDA 2016


                 Appeal from the PCRA Order May 13, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0210041-1988


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                        FILED MAY 16, 2017

      Appellant, Andre Robinson, appeals pro se from the order entered in

the Philadelphia Court of Common Pleas, which denied his second petition

filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-

9546. On January 18, 1989, Appellant entered a negotiated guilty plea to

first-degree murder and robbery.      That same day, the court sentenced

Appellant to life imprisonment without the possibility of parole.    Appellant

did not file a direct appeal. On April 12, 2002, Appellant filed his first PCRA

petition, which was unsuccessful. On September 11, 2015, Appellant filed

his second and current pro se PCRA petition. The PCRA court issued Rule

907 notice on March 28, 2016, and dismissed the petition as untimely on




_____________________________

*Retired Senior Judge assigned to the Superior Court.
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May 13, 2016. Appellant timely filed a pro se notice of appeal on June 9,

2016. No Rule 1925(b) concise statement was ordered or filed.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

petition must 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 or at the expiration of 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).

A petitioner asserting a timeliness exception must file a petition within sixty

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

9545(b)(2).    Under the “new facts” exception to the PCRA’s timeliness

requirements, the petitioner must plead and prove: “[T]he facts upon which

the claim is predicated were unknown to the petitioner and could not have

been ascertained by the exercise of due diligence[.]”          42 Pa.C.S.A. §

9545(b)(1)(ii).   When asserting the newly created constitutional right

exception under Section 9545(b)(1)(iii), “a petitioner must prove that there

is a ‘new’ constitutional right and that the right ‘has been held’ by that court

to apply retroactively.”   Commonwealth v. Chambers, 35 A.3d 34, 41

(Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012).


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      Instantly, Appellant’s judgment of sentence became final on February

17, 1989, upon expiration of time to file an appeal to this Court.        See

Pa.R.A.P. 903(a).    Appellant filed his current petition on September 11,

2015, over twenty-six years later; thus, the petition is patently untimely.

See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new fact”

exception to the PCRA time bar citing the U.S. Supreme Court’s decision in

Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

Nevertheless, Alleyne does not amount to a “new fact” under Section

9545(b)(1)(ii). See Commonwealth v. Brandon, 51 A.3d 231 (Pa.Super.

2012) (holding subsequently decisional law is not “new fact” under Section

9545(b)(1)(ii)). Appellant also fails to invoke the “new constitutional right”

exception to the PCRA time bar because neither the U.S. Supreme Court nor

the Pennsylvania Supreme Court has held that Alleyne or its progeny apply

retroactively on collateral review. See Commonwealth v. Miller, 102 A.3d

988 (Pa.Super. 2014) (holding that even if Alleyne announced new

constitutional right, neither our Supreme Court nor United States Supreme

Court has held that Alleyne applies retroactively on collateral review, which

is fatal to appellant’s attempt to satisfy “new constitutional right” exception

to timeliness requirements of PCRA).         See also Commonwealth v.

Washington, ___ Pa. ___, 142 A.3d 810 (2016) (holding Alleyne cannot

render otherwise final sentence illegal).    Further, Appellant’s reliance on

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)


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(ruling unconstitutional mandatory life without possibility of parole sentence

for juvenile offenders), likewise fails because Appellant was twenty-two

years old at the time of the offense.    Therefore, Appellant’s second PCRA

petition remains time-barred, and the court lacked jurisdiction to review it.

See Hackett, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




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