J-S60033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

ISAIAH D. BALDWIN

                            Appellant                No. 399 EDA 2015


                 Appeal from the PCRA Order January 16, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003112-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 02, 2015

       Isaiah D. Baldwin appeals pro se from the order entered on January

16, 2015, in the Court of Common Pleas of Chester County, that dismissed

as untimely his second petition for relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541–9546. The sole issue raised in this appeal is

whether the PCRA court erred “in not correcting an illegal sentence.”

Baldwin’s Brief at 3. Based upon the following, we affirm.

       The PCRA court summarized the background of this case, as follows:

       On May 21, 2010, [Baldwin] entered an open guilty plea to three
       (3) counts of criminal attempt to commit criminal homicide,[1]
       three (3) counts of aggravated assault, one (1) count of criminal
____________________________________________


1
  See 18 Pa.C.S. §§ 901 and 2501. See also 18 Pa.C.S. § 1102 (“[A]
person who has been convicted of attempt … to commit murder … where
serious bodily injury results may be sentenced to a term of imprisonment
which shall be fixed by the court at not more than 40 years.”)
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        conspiracy and one (1) count of persons not to possess firearms.
        On October 21, 2010, [Baldwin] was sentenced to 15 – 40 years
        state incarceration.[2, 3] Thereafter, [Baldwin] filed his first PCRA
        Petition [on July 25, 2011]. In the Petition, he raised one issue
        for the court’s determination: a challenge to the discretionary
        aspects of his sentence. Specifically, [Baldwin] claimed that “the
        sentencing judge abused his discretion by sentencing him to a
        term of incarceration that was excessive and did not take into
        consideration his age and the sentences received by his co-
        defendants.” See [Baldwin’s] Amended PCRA Petition. The
        Petition was denied by the court and [Baldwin] appealed. On
        August 15, 2012, the Superior Court upheld the court’s decision.
        [See Commonwealth v. Baldwin, 60 A.3d 572 (Pa. Super.
        2012) (unpublished memorandum), appeal denied, 63 A.3d 772
        (Pa. 2013).]

Notice of Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907(1),

11/18/2014, at 2 n.1.

        On November 13, 2014, Baldwin filed the present PCRA petition — his

second. The PCRA court, on November 18, 2014, issued Pa.R.Crim.P. 907

notice of intent to dismiss the PCRA petition.         On November 21, 2014,

Baldwin filed an amended PCRA petition, and on December 1, Baldwin filed

an objection to the PCRA court’s Rule 907 notice. On December 22, 2014,

Baldwin filed a second amended petition.          In these documents, Baldwin

alleged his conviction is illegal in light of Alleyne v. United States, 133 S.



____________________________________________


2
  Baldwin was sentenced to three concurrent terms of imprisonment for each
of the three charges of attempted homicide. The court imposed no further
sentence for the remaining charges.
3
    No post-sentence motion or direct appeal was filed.



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Ct. 2151 (2013),4 and that counsel rendered ineffective assistance in

connection with the entry of his guilty plea. On January 16, 2015, the PCRA

court dismissed Baldwin’s second PCRA petition as untimely.

       Baldwin filed a notice of appeal on February 6, 2015. On February 12,

2015, the PCRA court issued an order directing Baldwin to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Baldwin did

not comply with the PCRA court’s order and did not file a concise statement.

On June 10, 2015, the PCRA court issued an opinion noting Baldwin’s failure

in this regard, and concluded that Baldwin’s claims were waived. See PCRA

Court Opinion, 6/10/2015.         However, the PCRA court also stated that the

reasons for its decision in this matter could be found in its January 16, 2015

order, dismissing the petition, and its November 18, 2014, order, giving

notice of intent to dismiss.

       Our standard of review is well settled:

       “On appeal from the denial of PCRA relief, our standard of review
       calls for us to determine whether the ruling of the PCRA court is
       supported by the record and 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. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013) (citation

omitted).

____________________________________________


4
  In Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum [sentence] is an ‘element’ that must be submitted to
the jury.” Alleyne, 133 S. Ct. at 2155 (citations omitted).



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       As a result of Baldwin’s failure to file a Rule 1925(b) statement as

ordered by the court, we agree with the PCRA court that Baldwin’s claims on

appeal are waived.       See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in

the Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).5 In any event, even if Baldwin had properly

preserved his claims, we would be without jurisdiction to review them. It is

clear from the record that Baldwin’s petition is patently untimely and meets

no exception to the PCRA timeliness requirements.

       “[T]he     PCRA’s     timeliness        requirements   are   mandatory   and

jurisdictional in nature, [and] no court may properly disregard or alter them

in order to reach the merits of the claims raised in a PCRA petition that is

filed in an untimely manner.” Commonwealth v. Murray, 753 A.2d 201,

203 (Pa. 2000). Generally, any PCRA petition must be filed within one year

of the date a petitioner’s judgment of sentence becomes final, unless one of

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

section states, in relevant part:
____________________________________________


5
  We note that because Baldwin is pro se, the remand procedure pursuant to
Rule 1925(c)(3) does not apply. See Pa.R.A.P. 1925(c)(3) (“If an appellant
in a criminal case was ordered to file a Statement and failed to do so, such
that the appellate court is convinced that counsel has been per se
ineffective, the appellate court shall remand for the filing of a Statement
nunc pro tunc and for the preparation and filing of an opinion by the
judge.”). As a pro se appellant, Baldwin cannot assert his own
ineffectiveness. See Commonwealth v. Fletcher, 986 A.2d 759, 773 (Pa.
2009) (“The law prohibits a defendant who chooses to represent himself
from alleging his own ineffectiveness.”).



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     (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 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 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. § 9545(b)(1)(i)-(iii). Moreover, 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. § 9545(b)(2).

      A judgment of sentence “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. § 9545(b)(3).

     Here, Baldwin was sentenced on October 21, 2010. No post-sentence

motion or direct appeal was filed.        Therefore, Baldwin’s judgment of

sentence became final on Monday, November 22, 2010, when the 30-day




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appeal period expired.6 See 42 Pa.C.S. § 9545(b)(3) (providing judgment

of sentence “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.”); Pa.R.A.P. 903(a) (providing 30 day appeal period).       Therefore,

Baldwin was required to file his PCRA petition on or before November 22,

2011. Nevertheless, Baldwin did not file the instant PCRA petition until

November 13, 2014. Consequently, Baldwin must plead and prove that one

of the PCRA’s exceptions applies here.

       To the extent that Baldwin’s citation to Alleyne, supra, can be viewed

as reliance upon the after-discovered evidence exception or the “new

retroactive constitutional right” exception, Baldwin’s argument would fail.

       We note, at the outset, Baldwin does not allege that he received a

mandatory sentence that would implicate the United States Supreme Court

decision in Alleyne.

       In any event, because Baldwin filed this second PCRA petition on

November 13, 2014, more than a year after Alleyne was decided on June

17, 2013, he failed to satisfy the 60-day requirement of Section 9545(b)(2),

supra. See Commonwealth v. Cintora, 763 69 A.3d 759, 763–764 (Pa.


____________________________________________


6
 The thirtieth day, November 20, 2010, fell on a Saturday. See 1 Pa.C.S. §
1908.




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Super. 2013) (“To fulfill the 60-day requirement [of 42 Pa.C.S. §

9545(b)(2)], Appellants needed to file their petitions within 60 days from the

date of the court’s decision.”), appeal denied, 81 A.3d 75 (Pa. 2013).

        Further, even had Baldwin met the requirement of Section 9545(b)(2),

the after-discovered evidence exception would not apply as the Pennsylvania

Supreme Court has held that a judicial decision does not trigger Section

9545(b)(1)(ii). See Commonwealth v. Watts, 23 A.3d 980, 986–987 (Pa.

2011).

        Additionally, Alleyne would not provide Baldwin with an exception

under Section 9545(b)(1)(iii), as “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.”

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

        Accordingly, were Baldwin’s claims not waived by failure to file a

Pa.R.A.P. 1925(b) statement, we would conclude that he is still entitled to no

relief based upon his failure to pled and prove the applicability of a PCRA

timeliness exception. Therefore, there is no basis upon which to disturb the

PCRA court’s denial of PCRA relief.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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