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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
                    v.                      :
                                            :
ROBERT G. CABELL,                           :
                                            :
                          Appellant         :     No. 2837 EDA 2015

                  Appeal from the PCRA Order August 28, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0012754-2007

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                            FILED AUGUST 30, 2016

        Appellant, Robert G. Cabell, appeals from the Order entered in the

Philadelphia County Court of Common Pleas dismissing his second Petition

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

9546, as untimely.        After careful review, we affirm on the basis that

Appellant’s PCRA Petition is untimely and this Court, thus, lacks jurisdiction

to review the Petition.

        On January 14, 2009, following a bench trial, the trial court convicted

Appellant of Third-Degree Murder, Carrying Firearm in Public in Philadelphia,

Possession of an Instrument of Crime (“PIC”), and Recklessly Endangering




*
    Former Justice specially assigned to the Superior Court.
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Another Person (“REAP”).1     On May 21, 2009, the trial court sentenced

Appellant to a term of 17 to 45 years’ incarceration.           Although the

Commonwealth had filed a Notice of its intent to pursue a mandatory

minimum sentence pursuant to 42 Pa.C.S. § 9712, the trial court did not, in

fact, impose a mandatory minimum sentence.           See Sentencing Order,

5/21/2009, at 1-2.2

      This Court affirmed the Judgment of Sentence on May 28, 2010, and

our   Supreme   Court   denied   appeal   on   December    1,   2010.    See

Commonwealth v. Cabell, No. 3159 EDA 2009 (Pa. Super. filed May 28,

2010), appeal denied, 13 A.3d 474 (Pa. 2010).        Appellant did not seek

review by the U.S. Supreme Court.         Appellant’s Judgment of Sentence,

therefore, became final on March 1, 2011.      See 42 Pa.C.S. § 9545(b)(3);

U.S. Sup. Ct. R. 13.

      Appellant filed his first PCRA Petition on August 23, 2011, which the

PCRA court dismissed on July 25, 2012.      He filed the instant pro se PCRA

Petition, his second, on October 16, 2014.     Relying on Alleyne v. United

States, 133 S.Ct. 2151 (U.S. 2013), and Commonwealth v. Newman, 99


1
  18 Pa.C.S. § 2502(c); 18 Pa.C.S. § 6108; 18 Pa.C.S. § 907; and 18
Pa.C.S. § 2705, respectively.
2
   Although the record does not contain a sentencing transcript, the
sentencing court’s forms indicate that it did not impose a mandatory
minimum sentence on any charge. We rely on this fact from the certified
record in reaching our conclusion that the trial court did not rely on Section
9712 at Appellant’s sentencing.



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A.3d 86 (Pa. Super. 2014)3, Appellant averred that he received an illegal

mandatory minimum sentence as a result of being sentenced under 42

Pa.C.S. § 9712.

      On June 23, 2015, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition.   Appellant filed a

response on July 7, 2015, repeating his illegal sentencing claim.

      On August 28, 2015, the PCRA court dismissed Appellant’s Petition

without a hearing, concluding it lacked jurisdiction to consider Appellant’s

underlying claim because the Petition was untimely and Appellant had failed

to plead and prove any one of the timeliness exceptions provided in 42

Pa.C.S.§ 9545(b)(1).

      Appellant timely appealed on September 18, 2015.         Both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine



3
  Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proved beyond a reasonable doubt. Id.,
131 S.Ct. at 2160-61. In Newman, this Court held that pursuant to
Alleyne, 42 Pa.C.S. § 9712.1 is no longer constitutional.



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issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed.    Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).

      Here, Appellant’s Judgment of Sentence became final on March 1,

2011, upon expiration of the time to file a Petition for Writ of Certiorari with

the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.

Ct. R. 13.      In order to be timely, Appellant needed to submit his PCRA

Petition by March 1, 2012. Id. Appellant filed this PCRA Petition on October



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16, 2014, well after the one-year deadline.        The PCRA court properly

concluded that Appellant’s Petition is facially untimely. PCRA Court Opinion,

dated 12/22/15, at 2, 4.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

      (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).     See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).


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       Here, in relying on Alleyne and Newman, supra, Appellant attempts

to invoke the timeliness exception under Section 9545(b)(1)(iii) to challenge

to the legality of his sentence, averring that the court applied Section 9712’s

mandatory minimum.          As noted above, the trial court did not, in fact,

sentence Appellant to a mandatory minimum. Accordingly, Alleyne has no

relevance to Appellant’s illegality of sentence claim.

       Even if Alleyne were applicable, this Court would have no jurisdiction

to review the claim. Although a legality of sentence claim cannot be waived,

it must be raised in a timely PCRA Petition. Commonwealth v. Jones, 932

A.2d    179,   182   (Pa.     Super.   2007);   42   Pa.C.S.   §   9545(b)(2);

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality

of sentence is always subject to review within the PCRA, claims must still

first satisfy the PCRA’s time limits or one of the exceptions thereto”).

       The United States Supreme Court decided Alleyne on June 17, 2013.

In order to invoke the “constitutional right” exception under 42 Pa.C.S. §

9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days

of June 17, 2013.4 See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super. 2007) (stating that the 60-day period begins to run upon the date of




4
  This Court applied Alleyne in Newman, supra, on August 20, 2014.
However, the clear terms of 42 Pa.C.S. § 9545(b)(1)(iii) only apply to
decisions issued by the U.S. Supreme Court and the Pennsylvania Supreme
Court.



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the underlying judicial decision).    Appellant filed this PCRA Petition on

October 16, 2014, well after 60 days of the Alleyne decision.

      Moreover, our Supreme Court has recently reiterated that Alleyne

does not apply retroactively on post-conviction collateral review. See

Commonwealth v. Washington, ___ A.3d ___, 2016 WL 3909088, No. 37

EAP 2015 (Pa. filed July 19, 2016).

      Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely. See

PCRA Court Opinion, dated 12/22/15, at 3-5. We, thus, affirm the denial of

PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/30/2016




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