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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AYUB ABDULLAH :
:
Appellant : No. 3580 EDA 2017
Appeal from the Order October 16, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012294-2012
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 22, 2019
Appellant, Ayub Abdullah, appeals pro se from the order entered on
October 16, 2017, dismissing his petition filed pursuant to the Post Conviction
Relief Act1 (PCRA) as untimely. We affirm.
The PCRA court summarized the facts and procedural history of this case
as follows:
On February 18, 201[4], [Appellant] entered into a negotiated
guilty plea on the charges of robbery, conspiracy, as well as two
counts of aggravated assault [pertaining to an armed home
invasion and robbery in Philadelphia, Pennsylvania on July 11,
2012]. [Appellant] was sentenced in accordance with [plea]
negotiations to [an aggregate] period of 10-20 years of
incarceration[, representing four concurrent 10-20 year sentences
(one sentence for each of the four felonies pled)]. This sentence
became final on March 20, 2014 as [Appellant] did not file [a
direct] appeal, petition to withdraw his plea, or petition for
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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reconsideration. On October 6, 2015, [Appellant] filed a pro se
[PCRA] petition[.]
On July 26, 2016, [Appellant] was appointed counsel to review the
merits of the PCRA petition. Following this appointment, on May
8, 2017, counsel filed a letter pursuant to Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988), as well as a motion to
withdraw as counsel from the PCRA matter. On July 11, 2017, [a]
first dismissal notice pursuant to [Pa.R.Crim.P.] 907 was filed by
the [PCRA] court[. Appellant] filed a response to the dismissal
notice on July 31, 2017[.] Thereafter, on August 23, 2017, [a]
second notice of dismissal pursuant to Rule 907 was filed by the
[PCRA] court.
PCRA Court Opinion, 10/26/2018, at *2 (unpaginated) (unnecessary
capitalization omitted).
On October 27, 2017, Appellant filed a pro se notice of appeal. Upon
review of the docket, this Court entered an order on February 20, 2018
remanding this matter to the PCRA court because there was no indication that
the PCRA court disposed of the PCRA petition or ruled on PCRA counsel’s
motion to withdraw. On March 2, 2018, the PCRA court granted PCRA counsel
permission to withdraw. On August 10, 2018, the PCRA court dismissed
Appellant’s PCRA petition.2
On appeal, Appellant presents one issue for our review. See Appellant’s
Brief at *7 (unpaginated). He claims that the PCRA court erred by dismissing
his PCRA petition as untimely because his sentence was illegal. Id. at *10.
Appellant contends that he received four mandatory minimum sentences, one
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2 Pursuant to Pa.R.A.P. 905(a), we deem Appellant’s pro se appeal timely.
See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of
a determination but before the entry of an appealable order shall be treated
as filed after such entry and on the day thereof.”).
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for each of his four convictions, pursuant to 42 Pa.C.S.A. § 9714 (sentences
for second and subsequent violent offenses). Id. at *10-11. Appellant argues
that the United States Supreme Court declared mandatory minimum
sentences unconstitutional in Alleyne v. United States, 570 U.S. 99, 133
S.Ct. 2151 (2013). Id. Appellant further contends that our Supreme Court
subsequently examined Alleyne in Commonwealth v. Hopkins, 117 A.3d
247 (Pa. 2015) and that Hopkins provides him a timeliness exception to the
PCRA as newly discovered evidence under 42 Pa.C.S.A. § 9545(b)(1)(ii). Id.
“This Court's standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error.” Commonwealth v.
Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019). “The PCRA court's findings
will not be disturbed unless there is no support for the findings in the certified
record.” Id.
We previously determined:
The timeliness of a PCRA petition is a jurisdictional requisite. The
PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of the
petition. In other words, Pennsylvania law makes clear no court
has jurisdiction to hear an untimely PCRA petition. The PCRA
requires a petition, including a second or subsequent petition, to
be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
is 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 at the expiration of time for
seeking review. 42 Pa.C.S.A. § 9545(b)(3).
Further:
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The PCRA provides the sole means for obtaining collateral
review of a judgment of sentence. A court may entertain a
challenge to the legality of the sentence so long as the court
has jurisdiction to hear the claim. In the PCRA context,
jurisdiction is tied to the filing of a timely PCRA petition.
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. Thus, a
collateral claim regarding the legality of a sentence can be
lost for failure to raise it in a timely manner under the PCRA.
In circumstances in which no timely direct appeal is filed relative
to a judgment of sentence, and direct review is therefore
unavailable, the one-year period allowed for the filing of a post-
conviction petition commences upon the actual expiration of the
time period allowed for seeking direct review, as specified in the
PCRA. The initial untimely filing does not serve to circumvent the
clear and unambiguous language of Section 9545(b)(3) and alter
the date when the judgment of sentence became final.
Generally, to obtain merits review of a PCRA petition filed more
than one year after the sentence became final; the petitioner must
allege and prove at least one of the three timeliness exceptions.
See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The petitioner must allege
and prove:
(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 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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). When a PCRA petition is not
filed within one year of the expiration of direct review, or not
eligible for one of the three limited exceptions, or entitled to one
of the exceptions, but not filed within 60 days of the date that the
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claim could have been first brought, the trial court has no power
to address the substantive merits of a petitioner's PCRA claims.
We can raise sua sponte the timeliness of a PCRA petition because
it is an issue of the court's jurisdiction.
Commonwealth v. Ballance, 203 A.3d 1027, 1031–1032 (Pa. Super. 2019)
(internal case citations, quotations, and brackets omitted).
Here, the trial court sentenced Appellant on February 18, 2014.
Therefore, his judgment of sentence became final on March 20, 2014, or upon
the expiration of the thirty-day period to file a direct appeal. See 42 Pa.C.S.A.
§ 9545(b)(3) (“[A] judgment 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 at the expiration of time for seeking
the review.”); see also Pa.R.A.P. 903 (“[N]otice of appeal [] shall be filed
within 30 days after the entry of the order from which the appeal is taken.”).
Thus, Appellant had until March 20, 2015 to file a timely PCRA petition.
Appellant, however, filed his PCRA petition on October 6, 2015, clearly outside
of the one-year timing requirement of the PCRA.3
On appeal, Appellant argues the timeliness exception under 42 Pa.C.S.A.
§ 9545(b)(1)(ii) applies in this case. He contends that he did not know
Alleyne rendered mandatory minimum sentences unconstitutional when he
decided to plead guilty. Appellant’s Brief at *10. He claims that it was not
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3 We reject Appellant’s suggestion that his illegal sentencing claim is
“nonwaivable.” See Appellant’s Brief at *11; see also Ballance, 203 A.3d
at 1032 (“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.”).
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until he was imprisoned “that he heard about the mandatory minimum scheme
being unconstitutional through fellow inmates and doing his own research that
he learned from the legal reference aid[e] that his sentence was illegal.” Id.
More specifically, Appellant maintains that our Supreme Court’s decision in
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which was issued on
June 15, 2015, provides him a timeliness exception to the PCRA as newly
discovered evidence under 42 Pa.C.S.A. § 9545(b)(1)(ii). Id. at 10-11.
Appellant’s argument fails in several respects. First, “judicial decisions
do not constitute new ‘facts’ for purposes of the newly-discovered evidence
exception set forth in Section 9545(b)(1)(ii).” Commonwealth v.
Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018) (citation omitted).
Accordingly, Appellant’s reliance on his purported discovery of our Supreme
Court’s decision in Hopkins as a newly discovered evidence exception to the
PCRA fails. Moreover, Hopkins was decided on June 15, 2015 and Appellant
did not file his PCRA petition until October 6, 2015, more than 60 days of the
date that the claim could have been first brought.4 See Ballance, 203 A.3d
at 1032. Next, the Hopkins decision held that the imposition of mandatory
minimum sentences for selling narcotics within 1,000 feet of a school,
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4 The legislature amended 42 Pa.C.S.A. § 9545(b)(2) to allow petitioners one
year, instead of sixty days, to file a claimed exception to the PCRA. The
amendment only applies to claims arising on or after December 24, 2017.
Appellant filed his PCRA petition in 2015. Therefore, the original 60-day rule
is applicable herein.
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pursuant to 18 Pa.C.S.A § 6317(a), was unconstitutional. Appellant was not
sentenced under Section 6317 for selling narcotics near a school; he was
sentenced as a repeat violent offender under Section 9714. Thus, Appellant’s
reliance on Hopkins does not afford him relief.5 Because Appellant failed to
file a timely PCRA petition and did not prove one of the exceptions to the
one-year PCRA filing requirement, the PCRA court lacked jurisdiction to reach
the merits of Appellant’s claim and properly dismissed Appellant’s PCRA
petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/19
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5 Finally, to the extent that Appellant’s claim could be interpreted as
implicating a new constitutional right exception to the PCRA under 42
Pa.C.S.A. § 9545(b)(1)(iii), our Supreme Court has held that Section 9714 is
constitutional. See Commonwealth v. Bragg, 133 A.3d 328 (Pa. Super.
2016), affirmed, Commonwealth v. Bragg, 169 A.3d 1024 (Pa. 2017) (per
curiam). Moreover, in Alleyne, while the United States Supreme Court
established that “[a]ny fact that, by law, increases the penalty for a crime is
an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt[,]” the Alleyne Court recognized “a narrow exception to
this general rule for [] prior conviction[s].” Id. at 2155 and 2160 n.1.
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