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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAY HENRY
Appellant No. 1820 MDA 2015
Appeal from the PCRA Orders September 25 and 28, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000318-2009;
CP-38-CR-0001760-2008
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 09, 2016
Appellant, Ray Henry, appeals from the orders entered in the Lebanon
County Court of Common Pleas, which dismissed his serial petitions filed
under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. At docket no. 1760-2008, a jury convicted Appellant on February 6,
2009, of robbery (3 counts), conspiracy, and possessing instruments of
crime. The court sentenced Appellant on March 25, 2009, to an aggregate
term of 4-20 years’ imprisonment. The sentence included a deadly weapon
enhancement (“DWE”) per 204 Pa.Code § 303.10(a) (providing court shall
consider special DWE sentencing matrix when court determines offender
possessed/used deadly weapon during commission of offense). This Court
affirmed on March 3, 2010. See Commonwealth v. Henry, 996 A.2d 544
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(Pa.Super. 2010). Appellant filed a pro se PCRA petition on April 12, 2010.
The court appointed counsel, who filed an amended petition on June 7,
2010. Following a hearing, the court denied relief on July 19, 2010. This
Court affirmed on February 23, 2011. See Commonwealth v. Henry, 24
A.3d 462 (Pa.Super. 2011). At docket no. 318-2009, Appellant pled guilty
on May 21, 2009, to two counts of robbery. The court sentenced Appellant
on June 24, 2009, to an aggregate term of 40 months to 10 years’
imprisonment, concurrent with the docket 1760-2008 sentence. The record
suggests the court also imposed a DWE sentence at this docket. Appellant
filed a PCRA petition on April 12, 2010, which he withdrew on June 7, 2010.
On May 1, 2015, Appellant filed his current pro se “Motion for
Modification and Correct Illegal Sentence Nunc Pro Tunc” at both dockets.
The court treated the motions as PCRA petitions, and on June 26, 2015,
appointed counsel and issued notice per Pa.R.Crim.P. 907. Appellant
responded on July 8, 2015. Counsel filed amended petitions on August 31,
2015. On September 25th and 28th, 2015, the court denied PCRA relief at
docket 1760-2008, and at docket 318-2009, respectively. Appellant timely
filed one notice of appeal on October 16, 2015, and a concise statement per
Pa.R.A.P. 1925(b) on October 26, 2015.1
____________________________________________
1
Ordinarily, where one or more orders resolves issues arising on more than
one docket, an appellant must file separate notices of appeal from each
order. See Pa.R.A.P. 341, Note. Upon inquiry from this Court, Appellant
(Footnote Continued Next Page)
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The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,
625 Pa. 649, 91 A.3d 162 (2014). 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 statutory exceptions to the timeliness provisions of the PCRA allow for
very limited circumstances under which the late filing of a petition will be
excused; a petitioner asserting a timeliness exception must file a petition
within 60 days of the date the claim could have been presented. See 42
Pa.C.S.A. § 9545(b)(1-2). Instantly, Appellant’s judgment of sentence at
docket 1760-2008 became final on April 2, 2010, upon expiration of the time
to file a petition for allowance of appeal with our Supreme Court. See
Pa.R.A.P. 1113(a). Appellant’s judgment of sentence at docket 318-2009
became final on July 24, 2009, upon expiration of the time to file a notice of
appeal with our Superior Court. See Pa.R.A.P. 903(a). Appellant filed the
current PCRA petitions on May 1, 2015, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). Appellant now attempts to invoke the “new
constitutional right” exception to the statutory time bar per Section
_______________________
(Footnote Continued)
filed amended notices of appeal and amended concise statements (one for
each docket). Given these circumstances, we decline to penalize Appellant
for his technical non-compliance with Rule 341.
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9545(b)(1)(iii), relying on Alleyne v. United States, ___ U.S. ___, 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013), to declare unconstitutional the DWE
provision under which Appellant was sentenced. Nevertheless, even if
Alleyne created a new constitutional right, held to apply retroactively, and
even if Appellant complied with the 60-day rule, the law on which he relies
affords him no relief, because the DWE provision does not implicate
Alleyne. See Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super.
2014) (en banc), appeal denied, ___ Pa. ___, 104 A.3d 1 (2014) (noting
DWE does not implicate Alleyne). Thus, we affirm the denial of PCRA relief.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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