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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
RAYMOND ROMAN, :
:
Appellant : No. 1760 MDA 2015
Appeal from the PCRA Order September 15, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division No(s): CP-36-CR-0005101-2012
CP-36-CR-0005102-2012
CP-36-CR-0005452-2012
CP-36-CR-0005460-2012
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED MAY 20, 2016
Appellant, Raymond Roman, appeals pro se from the Order entered on
September 15, 2015, dismissing his second petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.1
On April 23, 2013, Appellant entered a negotiated guilty plea to
numerous drug charges. Pursuant to the plea negotiations, the trial court
sentenced Appellant to an aggregate term of 6 to 15 years’ incarceration.
*
Retired Senior Judge assigned to the Superior Court.
1
The facts of the underlying convictions are not relevant to our disposition.
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Appellant did not file a direct appeal. Appellant’s Judgment of Sentence
became final on May 23, 2013.
On November 6, 2014, Appellant filed his first PCRA petition, which the
PCRA court ultimately dismissed as untimely on March 20, 2015.
Appellant filed this PCRA petition, his second, on August 17, 2015,
more than two years after his Judgment of Sentence became final. The
PCRA court dismissed the petition as untimely on September 15, 2015.
Appellant filed a timely pro se Notice of Appeal on October 6, 2015.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises one issue on appeal:
Did the PCRA Court commit plain error when holding
[A]ppellant’s claims “...[a]re untimely and meritless” by failing to
recognize the exception to 42 Pa.C.S. § 9545(b)(1)(iii) in accord
Commonwealth v. Hopkins, 2015 Pa. LEXIS 1281, No. 98 MAP
2013 (June 15, 2015), making mandatory minimum sentences
unconstitutional, and [A]ppellant preserved when filing his
[]Defendant’s Concise Statement of the Errors Complained of on
Appeal, P[a].R.A.P. 1925(b), statement []?
Appellant’s Brief at 4 (capitalization and underlining removed).
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc). Before addressing
the merits of Appellant’s claims, we must first determine whether we have
jurisdiction to entertain the underlying PCRA petition. See Commonwealth
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v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of
a PCRA petition is a jurisdictional requisite).
Under the PCRA, any PCRA petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
The PCRA’s timeliness requirements are jurisdictional in nature, and a court
may not address the merits of the issues raised if the PCRA petition was not
timely filed. Commonwealth. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, because Appellant filed the instant petition more than two years
after his Judgment of Sentence became final, it is facially untimely under the
PCRA.
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner can explicitly plead and prove one of the three exceptions set forth
in 42 Pa.C.S. § 9545(b), which provides the following:
(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
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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.
42 Pa.C.S. § 9545(b)(1)-(2). See, e.g., Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000) (applying sixty-day timeframe after reviewing
specific facts that demonstrated the claim was timely raised).
With respect to Appellant’s challenge to the legality of his sentence,
Appellant attempts to invoke the timeliness exception under Section
9545(b)(1)(iii) and argues that the trial court imposed illegal mandatory
minimum sentences pursuant to 18 Pa.C.S. § 7508 for several PWID
convictions. Appellant’s Brief at 9, 12. Appellant relies on Alleyne v.
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United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),2 as
well as Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).3
As long as this Court has jurisdiction over the matter, a legality of
sentencing issue is reviewable and cannot be waived. Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA petition. See 42
Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (“Although legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto”). Appellant must present an illegal sentencing claim in a
timely PCRA petition over which we have jurisdiction. See Fahy, supra at
223, and Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014)
(en banc) (explaining that the decision in Alleyne does not invalidate a
2
Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proved beyond a reasonable doubt. Id.,
131 S.Ct. at 2160-61.
3
Appellant avers that Hopkins, supra, is controlling authority. Appellant’s
Brief at 9-13. In Hopkins, our Supreme Court held 18 Pa.C.S. § 6317,
which imposed a mandatory minimum sentence for a drug sale or PWID
within 1,000 feet of a school, unconstitutional. Appellant fails to develop his
argument here and explain why Hopkins controls his mandatory sentence
pursuant to 18 Pa.C.S. § 7508. This defect is noteworthy because it
prevents Appellant from relying on the date of the Hopkins decision rather
than the date of the Alleyne decision for purposes of the sixty-day rule
under 42 Pa.C.S. § 9545(b)(1)(iii). Appellant’s reliance on Hopkins is, thus,
misplaced.
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mandatory minimum sentence when presented in an untimely PCRA
petition).
Here, the United States Supreme Court decided Alleyne on June 17,
2013. In order to invoke the “constitutional right” exception under 42
Pa.C.S. § 9545(b)(1)(iii), Appellant needed to submit his PCRA petition
within 60 days of June 17, 2013. See Commonwealth v. Boyd, 923 A.2d
513, 517 (Pa. Super. 2007) (stating that the 60-day period begins to run
upon the date of the underlying judicial decision). Appellant filed this PCRA
petition on August 17, 2015, well after the 60-day deadline of August 16,
2013. After concluding that Appellant failed to prove the applicability of one
of the timeliness exceptions, the PCRA court properly dismissed Appellant’s
PCRA petition as untimely.
In Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015), this
Court declined to give Alleyne retroactive effect to cases on timely collateral
review when the defendant’s Judgment of Sentence had been finalized
before Alleyne was decided. In Commonwealth v. Miller, 102 A.3d 988
(Pa. Super. 2014), this Court observed that Alleyne does not invalidate a
mandatory minimum sentence when presented in an untimely PCRA petition.
Because Appellant’s Judgment of Sentence was final when Alleyne
was decided and because he filed an untimely PCRA petition, the instant
case is indistinguishable from Riggle and Miller. The PCRA court’s
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determination is supported by the evidence of record and free of legal error.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
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