J-S55015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    KENNETH ALLEN GURNEE,                       :
                                                :
                      Appellant                 :    No. 272 MDA 2016

                  Appeal from the PCRA Order January 14, 2016
                In the Court of Common Pleas of Bradford County
               Criminal Division at No(s): CP-08-CR-0000575-1994

BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                  FILED OCTOBER 17, 2017

        Appellant, Kenneth Allen Gurnee, appeals from the Order entered on

January 14, 2016, in the Court of Common Pleas of Bradford County

dismissing as untimely his second Petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.                   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.

        Appellant   challenges     the    legality   of   the   sentence     imposed   in

connection with his convictions arising from his 1994 kidnapping and rape of

a child.      On April 13, 1995, a jury convicted Appellant of Kidnapping,

Terroristic    Threats,   two    counts    of   Indecent    Assault,   two    counts   of

Aggravated Indecent Assault, three counts of Involuntary Deviate Sexual
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*   Retired Senior Judge assigned to the Superior Court.
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Intercourse, and three counts of Rape.1          On June 1, 1995, the trial court

sentenced Appellant to an aggregate term of 20 to 56 years’ incarceration.

Although Appellant filed a direct appeal, this Court quashed it as untimely.

Commonwealth v. Gurnee, No. 826 Harrisburg 1995 (Pa. Super. filed

January 10, 1996) (per curiam).           Thus, Appellant’s Judgment of Sentence

became final on July 3, 1995.2           See Commonwealth v. Valentine, 928

A.2d 346, 349 (Pa. Super. 2007) (where petitioner filed untimely notice of

appeal and his appeal was dismissed, his judgment of sentence became final

upon expiration of time for taking the direct appeal by filing a timely notice

of appeal).

        On March 19, 2001, Appellant filed a pro se PCRA Petition, his first,

which the trial court denied after appointing counsel. This Court affirmed.

Commonwealth v. Gurnee, No. 1194 MDA 2001 (Pa. Super. filed

December 17, 2002) (unpublished memorandum).

        On September 8, 2015, Appellant filed the instant PCRA Petition, his

second, claiming his sentence is illegal pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013), and Commonwealth v. Hopkins, 117 A.3d

247 (Pa. 2015). After providing notice to Appellant pursuant to Pa.R.Crim.P.


____________________________________________


118 Pa.C.S. § 2901; 18 Pa.C.S. § 2706; 18 Pa.C.S. § 3126; 18 Pa.C.S. §
3125; 18 Pa.C.S. § 3123; and 18 Pa.C.S. § 3121, respectively.

2   July 1, 1995, was a Saturday. See 1 Pa.C.S. § 1908.



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907, the PCRA court dismissed Appellant’s Petition as untimely on January

14, 2016.

      Appellant filed a pro se Notice of Appeal on February 11, 2016. Both

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

      Appellant presents three issues for our review:

      I. Did the [PCRA] [c]ourt err in denying the instant [PCRA]
      Petition when it stated that the Supreme Court of Pennsylvania’s
      ruling in [Commonwealth v. Hopkins, 117 A.3d 247 (Pa.
      2015)] does not offer retrospective relief when through the “void
      ab initio” doctrine, [Hopkins] retains implied retroactivity since
      the ruling voids the statutes from their inception, thereby they
      did not exist at the time [Appellant] was sentenced?

      II. Did the [PCRA] [c]ourt err in denying the instant [PCRA]
      Petition when it failed to hear the merits of [Appellant’s] case,
      when he filed the instant [PCRA] timely by filing within 60 days
      of the date he found his sentence to be illegal under the
      Supreme Court of Pennsylvania’s ruling in [Hopkins]?

      III. Did the [PCRA] [c]ourt err in denying the instant [PCRA]
      Petition when [Appellant] raised a legality of sentence claim
      which through the Court’s inherent power always retains the
      jurisdiction to correct?

Appellant’s Brief at 4.

      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

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

Super. 2008).

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       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 at 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).    Any second or subsequent petition, such as the instant

PCRA Petition, filed after the effective date of the 1995 amendments to the

PCRA “is governed by the PCRA as thus amended.”        Commonwealth v.

Yarris, 731 A.2d 581, 586 (Pa. 1999).

       Here, Appellant’s Judgment of Sentence became final on July 3, 1995,

upon expiration of the time to file a direct appeal.     See 42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 903(a); Pa.R.Crim.P. 720(A)(3); Valentine, supra at

349.   Appellant’s Judgment of Sentence became final before the effective


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date of the 1995 amendments to the PCRA, which included a grace period of

one year for petitioners like Appellant.    See Commonwealth v. Thomas,

718 A.2d 326, 329 (Pa. Super. 1998). However, the grace period applied

only to PCRA petitions filed by January 16, 1997. Id. See also 42 Pa.C.S.

§ 9545(b)(1).    Appellant filed this PCRA Petition on September 8, 2015,

more than 18 years after the PCRA deadline, and more than 20 years after

his Judgment of Sentence became final. Appellant’s Petition is, thus, facially

untimely.

      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.

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      (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).

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

to   invoke   the   “new   fact”   timeliness   exception   provided   in   Section

9545(b)(1)(ii) to challenge the legality of his sentence, averring that the

court applied the mandatory minimums provided in 42 Pa.C.S. § 9718.

Appellant claims that he filed his Petition within 60 days of learning of

Hopkins, supra, in the prison law library. Appellant’s Brief at 17.

      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”).

      Our Supreme Court has expressly held that “subsequent decisional law

does not amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii)[.]”

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).                     See also

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (rejecting

“the notion that judicial decisions can be considered newly-discovered facts

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which would invoke the protections afforded by [S]ection 9545(b)(1)(ii).”).

Given this binding precedent, Appellant’s argument merits no relief.

      We also reject Appellant’s attempt to circumvent the timeliness

requirements and the PCRA framework by arguing that the PCRA time

restrictions    cannot    apply   to   sentences   that   were   later    deemed

unconstitutional as they are “void ab initio.” Appellant’s Brief at 18. This

argument ignores clear precedent, and effectively asks this Court to ignore

Hopkins,       supra,    and   Washington,    infra,   and   conclude     Alleyne

announced a substantive rule that applies retroactively.                 See also

Commonwealth v. Ciccone, 152 A.3d 1004, 1007-08 (Pa. Super. 2016)

(en banc) (rejecting similar void ab initio argument and holding that “we

likewise reject the position that a mandatory sentencing statute rendered

illegal by Alleyne is void ab initio thereby rendering any sentence imposed

thereunder invalid.”).

      Even if Appellant had attempted to invoke the timeliness exception

under Section 9545(b)(1)(iii), Appellant’s claim that he filed his PCRA

Petition within 60 days of the decision in Hopkins, supra, would merit no

relief. 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




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of June 17, 2013.3 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

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

September 8, 2015, 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, 142 A.3d 810, 820 (Pa. 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.            We,

thus, affirm the denial of PCRA relief.




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3 This Court applied Alleyne in Hopkins, supra, on June 15, 2015.
However, this Court recently reiterated that “the Hopkins decision did not
announce a ‘new rule,’ [for purposes of 42 Pa.C.S. § 9545(b)(1)(iii)] but
rather simply assessed the validity of Section 6317 under Alleyne and
concluded that particular mandatory minimum sentencing statute was
unconstitutional.” Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa.
Super. 2016). Accordingly, Appellant’s attempt to rely on Hopkins to
calculate the 60-day period is misplaced.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




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