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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NATHAN ROBERT PARKER
Appellant No. 976 EDA 2015
Appeal from the PCRA Order March 10, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003993-2011
CP-51-CR-0003551-2011
BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 20, 2015
Nathan Robert Parker appeals from the order entered in the Court of
Common Pleas of Chester County, dismissing his petition filed under the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Upon review,
we affirm.
On June 27, 2012, Parker entered a negotiated guilty plea to one
count each of robbery, criminal conspiracy and possession with intent to
deliver and was sentenced to an aggregate of 9 to 18 years’ imprisonment.
He did not file a direct appeal. The intervening procedural history, involving
Parker’s filing of multiple motions and a prior PCRA petition, is not relevant
to our disposition here, except to note that in his previous PCRA petition,
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*
Retired Senior Judge assigned to the Superior Court.
J-S70044-15
Parker challenged the legality of the search of the safe in which contraband
was discovered.
Parker filed the instant PCRA petition, his second, on August 8, 2014,
alleging claims of ineffectiveness of counsel, an unlawfully induced guilty
plea, and an illegal sentence. With regard to the last claim, Parker asserted
that his mandatory minimum sentence is in violation of Alleyne v. United
States, 133 S.Ct. 2151 (2013). On January 22, 2015, the PCRA court
issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Parker
filed three responses to the court’s Rule 907 notice. On March 10, 2015, the
court dismissed Parker’s petition as untimely filed. This timely appeal
followed, in which Parker raises the following issues for our review:
1. The police officers whom [sic] conducted the search of
[Parker’s] residence exceeded the scope of the warrant when
they searched [Parker’s] safe.
2. Commonwealth is in violation of Brady v. Maryland, 373
U.S. [83] (1963), when they failed to provide [Parker] with
favorable evidence.
3. [Parker’s] counsel was ineffective for multiple reasons
including manipulation, coercion and withholding information
from [Parker].
4. [Parker] was sentenced to a mandatory minimum sentence
pursuant to 42 Pa.C.S.A. [§] 7508 for the [possession with intent
to deliver charge] in violation of the recent decisions by the
Pennsylvania Supreme and Superior Courts as well as the United
States Supreme Court.
Brief of Appellant, at [3].
Our standard and scope of review for the denial of a PCRA petition is
well-settled. We review the PCRA court’s findings of fact to determine
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whether they are supported by the record, and review its conclusions of law
to determine whether they are free from legal error. Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to
the findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level. Id.
The PCRA court dismissed Parker’s petition as untimely filed. A PCRA
petition, including a second or subsequent petition, must be filed within one
year of the date the underlying judgment of sentence becomes final. See
42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz, 830 A.2d
1273, 1275 (Pa. Super. 2003). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3); see also
Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).
Here, Parker was sentenced on June 27, 2012 and did not file a direct appeal
to this Court. Thus, his judgment of sentence became final no later than
July 27, 2012, upon the expiration of the thirty-day period for filing an
appeal to this Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Parker had one year from that date, or until July 27, 2013, to file a timely
PCRA petition. See 42 Pa.C.S.A. § 9545(b). Parker did not file the instant
petition until August 8, 2014, more than one year after his judgment of
sentence became final. Accordingly, Parker’s petition is facially untimely
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unless he pled and offered to prove one of the three statutory exceptions to
the time bar. See 42 Pa.C.S.A. § 9545(b).
The timeliness exceptions provided for in the PCRA include interference
by government officials in the presentation of the claim, after-discovered
facts or evidence, and an after-recognized, retroactively applied
constitutional right. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). A PCRA petition invoking
one of these exceptions must be filed within 60 days of the date the claims
could have been presented. 42 Pa.C.S.A. § 9545(b)(2). The timeliness
requirements of the PCRA are jurisdictional in nature and, accordingly, a
PCRA court cannot hear untimely petitions. Commonwealth v. Robinson,
837 A.2d 1157 (Pa. 2003).
Here, Parker invokes the exception under section 9545(b)(1)(iii),
claiming that the U.S. Supreme Court’s decision in Alleyne renders his
sentence illegal. This claim is meritless. First, we note that Parker’s PCRA
petition failed to allege which of his sentences was a mandatory minimum
sentence subject to the dictates of Alleyne. Second, even if Parker received
a sentence to which Alleyne applies, he would not be entitled to relief.
Alleyne has not been held by either the Pennsylvania Supreme Court or the
United States Supreme Court to apply retroactively. See Commonwealth
v. Miller, 102 A.3d 988 (Pa. Super. 2014) (affirming dismissal of PCRA
Alleyne claim because case not held to be applied retroactively for purposes
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of PCRA). Thus, it does not satisfy the requirements of section
9545(b)(1)(iii). Third, even if Alleyne had been held to apply retroactively,
Parker failed to timely raise the claim as required under section 9545(b)(2).
The Supreme Court announced its decision in Alleyne on June 17, 2013.
Accordingly, Parker was required to raise his claim on or before August 17,
2013. As noted above, Parker did not file the instant petition until August 8,
2014. Therefore, his claim is untimely and he is entitled to no relief.
Parker’s remaining claims implicate the alleged ineffectiveness of his
trial counsel.1 They can garner him no relief for two reasons. First, Parker
does not assert that any of the claims satisfy any of the exceptions to the
time bar under section 9545(b). Second, pursuant to section 9543 of the
PCRA, a petitioner is eligible for relief only if “the allegation of error has not
been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). Pursuant
to section 9544 of the PCRA, “an issue has been previously litigated if . . . it
has been raised and decided in a proceeding collaterally attacking the
conviction or sentence.” 42 Pa.C.S.A. § 9544(a)(3). Further, “an issue is
waived if the petitioner could have raised it but failed to do so before trial, at
trial . . . on appeal, or in a prior state postconviction proceeding.” 42
Pa.C.S.A. § 9544(b). Here, Parker’s remaining claims have either been
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1
Although Parker’s appellate brief does not couch two of these issues in
terms of ineffectiveness, his PCRA petition did.
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previously litigated or could have been raised in a prior proceeding, but were
not.
For the foregoing reasons, Parker is not entitled to PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2015
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