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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : I000N THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN MCCURDY, :
:
Appellant : No. 1018 WDA 2016
Appeal from the PCRA Order August 14, 2015
in the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0000536-2006
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 9, 2017
John McCurdy (Appellant) appeals from the August 14, 2015 order
which dismissed his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In 2006, following convictions for inter alia, corrupt organizations,
criminal conspiracy, and possession of a controlled substance, Appellant was
sentenced to 13½ to 28 years of imprisonment. On February 15, 2008, this
Court affirmed Appellant’s judgment of sentence, Commonwealth v.
McCurdy, 943 A.2d 299 (Pa. Super. 2008), and Appellant did not file a
petition for allowance of appeal.
Appellant’s first PCRA petition resulted in no relief. Commonwealth
v. McCurdy, 75 A.3d 559 (Pa. Super. 2013) (unpublished memorandum).
Appellant filed the petition that is the subject of the instant appeal on April
*Retired Senior Judge assigned to the Superior Court.
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2, 2014. Counsel was appointed and filed an amended petition on
Appellant’s behalf on August 14, 2015. Therein, Appellant claimed that he is
entitled to relief because his sentence is illegal under Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015) (applying Alleyne v. United States,
133 S.Ct. 2151 (2013) to hold that the mandatory minimum sentence found
at 18 Pa.C.S. § 6317 (relating to drug activity in a school zone) is
unconstitutional).
An evidentiary hearing was held on September 4, 2015. On November
13, 2015, the PCRA court issued an order and opinion denying Appellant’s
petition. Although still represented by counsel, Appellant filed pro se a
notice of appeal, and the PCRA court ordered Appellant to comply with
Pa.R.A.P. 1925(b). Though ordered by the PCRA court, the certified record
was never transmitted to this Court. On June 3, 2016, counsel filed a
motion to withdraw, which the PCRA court subsequently granted. On June
15, 2016, Appellant filed a request to file an appeal nunc pro tunc and
requested the appointment of counsel, which the PCRA court granted on
June 21, 2016. Appellant timely filed a notice of appeal and his case is now
ready for disposition.
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
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was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b) and (c).
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
jurisdiction over the petition. Without jurisdiction, we simply do not have
the legal authority to address the substantive claims.”).
It is clear that Appellant’s 2014 petition is facially untimely: his
judgment of sentence became final in 2008. 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). In doing so, Appellant urges
this Court to find that Hopkins should apply retroactively. Appellant’s Brief
at 10-11.
Appellant’s argument is unavailing. The Hopkins Court did not
recognize a new constitutional right, let alone hold that any such right
applied retroactively; rather, it merely applied Alleyne to hold that a
particular mandatory minimum sentence not applied to Appellant was
unconstitutional. Furthermore, as acknowledged by Appellant, our Supreme
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Court held that Alleyne “does not apply retroactively to cases pending on
collateral review.” Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016). See Appellant’s Brief at 11.
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: 2/9/2017
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