J-S58040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JUSTIN ALFRED WARD

                            Appellant                      No. 40 MDA 2016


               Appeal from the PCRA Order December 16, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003160-2010;
                            CP-36-CR-0003165-2010


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

JUDGMENT ORDER BY GANTMAN, P.J.:                      FILED OCTOBER 05, 2016

        Appellant, Justin Alfred Ward, appeals from the order entered in the

Lancaster County Court of Common Pleas, denying his serial petition for

collateral relief under the Post Conviction Relief Act (“PCRA”),1 which

Appellant styled as a “petition for writ of habeas corpus.” We affirm.

        On July 12, 2011, Appellant pled guilty to two counts of delivery of a

controlled substance. On that same date, the trial court sentenced Appellant

to concurrent terms of four (4) to ten (10) years’ incarceration. Appellant

did not file a direct appeal.           Appellant filed his first PCRA petition on

September 16, 2014, which the PCRA court denied on June 19, 2015. On
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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August 13, 2015, Appellant pro se filed a “petition for writ of habeas

corpus,” challenging the legality of his sentence. The court treated the filing

as a PCRA petition and appointed counsel. On November 5, 2015, counsel

filed a Turner/Finley2 no-merit letter and petition to withdraw.            On

November 19, 2015, the court granted counsel leave to withdraw and issued

notice of its intent to dismiss Appellant’s PCRA petition per Pa.R.Crim.P. 907.

Appellant filed a pro se response to the Rule 907 notice on December 7,

2015.     On December 16, 2015, the court denied the PCRA petition.

Appellant timely filed a pro se notice of appeal on December 31, 2015. The

court did not order Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

        The timeliness of a PCRA petition is a jurisdictional requisite.

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

PCRA’s timeliness provisions allow for limited circumstances under which the

late filing of a petition will be excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-

(iii). To invoke the “new constitutional right” exception, the petitioner must
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2
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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plead and prove “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.A. § 9545(b)(1)(iii).

      Instantly, Appellant styled his filing as a habeas corpus petition; the

court properly treated it as a PCRA petition subject to the PCRA’s time

restrictions. See Commonwealth v. Concordia, 97 A.3d 366 (Pa.Super.

2014), appeal denied, ___ Pa. ___, 125 A.3d 775 (2015) (stating challenge

to legality of sentence is cognizable under PCRA); Commonwealth v.

Deaner, 779 A.2d 578 (Pa.Super. 2001) (stating any collateral petition

raising issues with respect to remedies offered under PCRA will be

considered PCRA petition). Appellant’s judgment of sentence became final

on August 11, 2011, upon expiration of the time to file a direct appeal with

this Court.   See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).       Appellant

filed the current PCRA petition four years later, on August 13, 2015. Thus,

Appellant’s petition is patently untimely.   See 42 Pa.C.S.A. § 9545(b)(1).

To the extent Appellant attempts to invoke the “new constitutional right”

exception to the PCRA’s timeliness requirement, the Pennsylvania Supreme

Court has declared that the rule announced in Alleyne v. United States,

___ U.S. ___, 133 S. Ct. 2151, 186 L.Ed.2d 314 (2013), does not apply

retroactively. See Commonwealth v. Washington, ___ A.3d ___, 2016

WL 3909088 (Pa. filed July 9, 2016).     Further, Appellant cannot meet the


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exception through reliance on subsequent Pennsylvania case law that merely

applied the constitutional right recognized in Alleyne. Therefore, the PCRA

court properly dismissed Appellant’s petition as time-barred.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




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