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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ROGER FAIR, :
:
Appellant : No. 202 WDA 2016
Appeal from the PCRA Order January 13, 2016
in the Court of Common Pleas of Butler County,
Criminal Division, No(s): CP-10-CR-0000480-2004
BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 30, 2016
Roger Fair (“Fair”) appeals, pro se, from the Order dismissing his first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On October 7, 2004, Fair entered a plea of nolo contendere for
multiple crimes. On December, 21, 2004, the trial court sentenced Fair to
an aggregate prison term of eighty-four to two-hundred forty months. Fair
did not file a direct appeal.
On July 23, 2015, Fair filed the instant PCRA Petition, his first. The
PCRA court appointed Fair counsel. Subsequently, Fair’s counsel filed a
Petition to Withdraw and a Turner/Finley1 “no-merit” letter. The PCRA
court granted the Petition to Withdraw. On December 11, 2015, the PCRA
court entered a Pa.R.Crim.P. 907 Notice of Intent to Dismiss. Thereafter,
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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the PCRA court dismissed Fair’s PCRA Petition as patently untimely, after
which Fair filed a timely Notice of Appeal.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court and
the evidence of record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Under the PCRA, a defendant must file any PCRA petition within one
year of the date that the judgment becomes final. 42 Pa.C.S.A.
§ 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 review.” Id. § 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 v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, Fair’s judgment of sentence became final on January 20, 2005,
when the time to seek review with this Court expired. See Pa.R.A.P. 903(a).
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Fair had until January 20, 2006, to file a timely PCRA petition. Therefore,
Fair’s July 2015 PCRA Petition is facially untimely.
However, in the event that a petition is not filed within the one-year
time frame, the PCRA provides three timeliness exceptions. See 42
Pa.C.S.A. § 9545(b)(1)(i-iii). Any PCRA petition invoking one of these
exceptions shall be filed within sixty days of the date the claim could have
been presented. See id. § 9545(b)(2).
Here, Fair invokes the newly recognized constitutional right exception
based on the United States Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013). Brief for Appellant at 7, 9-14, 17, 19-20.
In Alleyne, the Supreme Court held that any fact that increases the
sentence for a given crime must be submitted to the jury and found beyond
a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The Supreme Court
reasoned that a Sixth Amendment violation occurs where these sentence-
determinative facts are not submitted to a jury. Id. at 2156. Fair argues
that his mandatory minimum sentence under 42 Pa.C.S.A. § 9718 is,
therefore, illegal based upon Alleyne. Brief for Appellant at 10-14.
Here, Fair filed the instant PCRA Petition on July, 23, 2015, well over
sixty days after June 17, 2013, the date that Alleyne was decided.2 See 42
2
Fair claims that his Petition is timely because he filed it within sixty days of
the decision rendered in Commonwealth v. Hopkins, 117 A.3d 247 (Pa.
2015). However, Hopkins was decided on direct appeal, and did not state
that Alleyne applies retroactively. Thus, Fair’s reliance on Hopkins to
invoke the third exception is misplaced.
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Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513,
517 (Pa. Super. 2007) (stating that “[w]ith regard to an after-recognized
constitutional right, this Court has held that the sixty-day period begins to
run upon the date of the underlying judicial decision.”).
Even if Fair had properly invoked the exception at section
9545(b)(1)(iii), the rule established in Alleyne does not apply retroactively
where the judgment of sentence is final. See Commonwealth v. Miller,
102 A.3d 988, 995 (Pa. Super. 2014) (stating that neither the United States
Supreme Court nor the Pennsylvania Supreme Court has held that Alleyne
applies retroactively where the judgment of sentence has become final); id.
(stating that although Alleyne claims implicate the legality of sentence,
courts cannot review a legality claim where the court does not have
jurisdiction). Because Fair failed to meet the requirements of the third
timeliness exception, the PCRA court properly dismissed Fair’s PCRA
Petition.3
Order affirmed.
3
To the extent that Fair argues that Alleyne represents a newly-discovered
fact, we note that judicial decisions cannot “be considered newly-discovered
facts which could invoke the protections afforded by section 9545(b)(1)(ii).”
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2016
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