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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARTHUR RASHAD COLE, JR.
Appellant No. 1471 MDA 2014
Appeal from the PCRA Order July 31, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006063-2006
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 02, 2015
Arthur Rashad Cole, Jr. appeals pro se from the order of the Court of
Common Pleas of York County that dismissed his petition filed pursuant to
the Post Conviction Relief Act.1 After careful review, we affirm.
On April 9, 2008, a jury convicted Cole of possession with intent to
deliver a controlled substance (PWID) and possession of a controlled
substance. At a sentencing hearing on May 21, 2008, the trial court noted
that under the sentencing guidelines, the standard range sentence was 18 to
24 months. However, because of Cole’s extensive prior record, the fact that
he committed offenses while on probation, and the court’s belief that Cole
was a poor candidate for rehabilitation who would re-offend by dealing drugs
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1
42 Pa.C.S. §§ 9541-9546.
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if released, the court sentenced him to five to ten years’ incarceration. N.T.
Sentencing, 5/28/08, at 5-7. This Court affirmed Cole’s judgment of
sentence on September 17, 2009. Commonwealth v. Cole, 986 A.2d 1250
(Pa. Super. 2009) (unpublished memorandum), and our Supreme Court
denied allowance of appeal on March 9, 2010. Commonwealth v. Cole,
990 A.2d 727 (Pa. 2010).
Cole filed a PCRA petition on July 18, 2014, asserting that his sentence
is unconstitutional under Alleyne v. United States, 133 S.Ct. 2151 (2013),
which holds that any fact that increases the mandatory minimum sentence
for a crime is an element that must be submitted to the jury. The PCRA
court dismissed the petition as untimely on July 30, 2014.
On appeal, Cole raises the following issue for our review:
Did not the PCRA court error [sic] by ruling that [Cole’s] second2
[sic] PCRA petition was untimely when Alleyne v. United
States, 123 [sic] S.Ct. 215 [sic] (2013), held that where the
jury did not prove [sic] beyond a reasonable doubt that the facts
that triggered the mandatory on [Cole’s] sentence was violative
of [Cole’s] rights under the Sixth Amendment to a Fair Trial?
Appellant’s Brief, at 4.
“Our standard of review regarding a PCRA court’s order is whether the
determination of the PCRA court is supported by the evidence of record and
is free of legal error. The PCRA court’s findings will not be disturbed unless
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2
The docket does not reflect, nor does the record contain, a PCRA petition
other than the one filed on July 18, 2014.
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there is no support for the findings in the certified record.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)
(citations omitted).
Section 9545 of the PCRA provides in relevant part:
(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.
(3) For purposes of this subchapter, a judgment
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
review.
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(4) For purposes of this subchapter, “government
officials” shall not include defense counsel, whether
appointed or retained.
42 Pa.C.S. § 9545(b).
Cole’s judgment of sentence became final on June 7, 2010, when he
failed to file a petition for writ of certiorari in the United States Supreme
Court within ninety days of our Supreme Court’s denial of his petition for
allowance of appeal. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13.
Cole had one year from that date within which to file “any petition . . .
including a second or subsequent petition” seeking post-conviction relief.
See 42 Pa.C.S. § 9545(b)(1). Cole filed the instant petition on July 18,
2014, which was more than three years after his judgment of sentence
became final.
Cole asserts that Alleyne recognized a new constitutional right that
applies retroactively, see 9545(b)(1)(iii), and thus is an exception to the
timeliness requirements of the PCRA. However, in Commonwealth v.
Miller, 102 A.3d 988 (Pa. Super. 2014) this Court held to the contrary,
noting, “neither our Supreme Court nor the Supreme Court of the United
States has held that Alleyne is to be applied retroactively to cases in which
the judgment of sentence has become final.” Id. at 995.
Even if Cole were entitled to relief under Alleyne, which he is not, his
petition would still have been untimely. The U.S. Supreme Court issued its
decision in Alleyne on June 17, 2013. Cole did not file his PCRA petition
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until July 18, 2014. Section 9545(b)(2) of the PCRA provides that a petition
raising an exception to the timeliness requirements must be filed within 60
days of the date the claim could have been presented. However, Cole did
not present his claim until thirteen months after the filing of Alleyne.
A court has no jurisdiction to consider an untimely PCRA petition.
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003). Because
Cole has failed to plead and prove an exception to the timeliness
requirements of section 9545(b), the trial court did not err in dismissing his
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2015
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