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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
DAVID FITZGERALD, :
:
Appellant : No. 410 WDA 2015
Appeal from the PCRA Order February 24, 2015
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009654-2008
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 11, 2016
David Fitzgerald (Appellant) appeals from the February 24, 2015 order
which dismissed his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In 2009, following attempted-homicide convictions, Appellant was
sentenced to two concurrent terms of 10 to 20 years of imprisonment. This
Court denied Appellant relief on direct appeal, and his judgment of sentence
became final in 2011 after our Supreme Court denied his petition for
allowance of appeal. Commonwealth v. Fitzgerald, 24 A.3d 467 (Pa.
Super. 2011) (unpublished memorandum), appeal denied, 25 A.3d 327 (Pa.
2011).
Appellant’s first, timely-filed PCRA petition resulted in no relief.
Appellant filed the petition that is the subject of the instant appeal on August
*Retired Senior Judge assigned to the Superior Court.
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20, 2013.1 Therein, he claimed that he is entitled to relief in the form of
resentencing because his sentence is illegal under Alleyne v. United
States, ––– U.S. –––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding
that a fact which triggers the imposition of a mandatory minimum sentence
is an element of the crime and must, therefore, be determined beyond a
reasonable doubt by a jury). Amended PCRA Petition, 12/8/2014, at 3. See
also Motion for Post Conviction Collateral Relief, 8/20/2013, attached
Memorandum of Fact and Law at 4 (same).
The PCRA court issued notice of its intent to dismiss the petition as
untimely filed without a hearing, to which Appellant filed a response in
opposition. On February 24, 2014, the PCRA court entered an order
dismissing Appellant’s petition. Appellant timely filed a notice of appeal, and
both Appellant and the PCRA court complied with Pa.R.A.P. 1925. On
appeal, Appellant claims, inter alia, that his petition was timely filed under
42 Pa.C.S. § 9545(b)(1)(iii). Appellant’s Brief at 3.
The timeliness of a post-conviction petition is jurisdictional. See,
e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f
a PCRA petition is untimely, neither this Court nor the [PCRA] court has
1
This petition was stayed until the appeal from the dismissal of his first
PCRA petition was concluded in 2014.
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jurisdiction over the petition. Without jurisdiction, we simply do not have
the legal authority to address the substantive claims.”).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b) and (c).
It is clear that Appellant’s 2013 petition is facially untimely: his
judgment of sentence became final in 2011. However, Appellant alleges that
his petition satisfies the following timeliness exception: “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. § 9545(b)(1)(iii).
Appellant’s argument is unavailing. As this Court has explained,
[e]ven assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor the United
States Supreme Court has held that Alleyne is to be applied
retroactively to cases in which the judgment of sentence had
become final. This is fatal to Appellant’s argument regarding the
PCRA time-bar.
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
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Accordingly, Appellant failed to establish the applicability of a
timeliness exception, and the PCRA court properly dismissed the petition for
lack of jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2016
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