J-S58040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN ALFRED WARD
Appellant No. 40 MDA 2016
Appeal from the PCRA Order December 16, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003160-2010;
CP-36-CR-0003165-2010
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED OCTOBER 05, 2016
Appellant, Justin Alfred Ward, appeals from the order entered in the
Lancaster County Court of Common Pleas, denying his serial petition for
collateral relief under the Post Conviction Relief Act (“PCRA”),1 which
Appellant styled as a “petition for writ of habeas corpus.” We affirm.
On July 12, 2011, Appellant pled guilty to two counts of delivery of a
controlled substance. On that same date, the trial court sentenced Appellant
to concurrent terms of four (4) to ten (10) years’ incarceration. Appellant
did not file a direct appeal. Appellant filed his first PCRA petition on
September 16, 2014, which the PCRA court denied on June 19, 2015. On
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42 Pa.C.S.A. §§ 9541-9546.
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*Retired Senior Judge assigned to the Superior Court.
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August 13, 2015, Appellant pro se filed a “petition for writ of habeas
corpus,” challenging the legality of his sentence. The court treated the filing
as a PCRA petition and appointed counsel. On November 5, 2015, counsel
filed a Turner/Finley2 no-merit letter and petition to withdraw. On
November 19, 2015, the court granted counsel leave to withdraw and issued
notice of its intent to dismiss Appellant’s PCRA petition per Pa.R.Crim.P. 907.
Appellant filed a pro se response to the Rule 907 notice on December 7,
2015. On December 16, 2015, the court denied the PCRA petition.
Appellant timely filed a pro se notice of appeal on December 31, 2015. The
court did not order Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008). 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 three statutory exceptions to the
PCRA’s timeliness provisions allow for limited circumstances under which the
late filing of a petition will be excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-
(iii). To invoke the “new constitutional right” exception, the petitioner must
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2
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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plead and prove “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)(iii).
Instantly, Appellant styled his filing as a habeas corpus petition; the
court properly treated it as a PCRA petition subject to the PCRA’s time
restrictions. See Commonwealth v. Concordia, 97 A.3d 366 (Pa.Super.
2014), appeal denied, ___ Pa. ___, 125 A.3d 775 (2015) (stating challenge
to legality of sentence is cognizable under PCRA); Commonwealth v.
Deaner, 779 A.2d 578 (Pa.Super. 2001) (stating any collateral petition
raising issues with respect to remedies offered under PCRA will be
considered PCRA petition). Appellant’s judgment of sentence became final
on August 11, 2011, upon expiration of the time to file a direct appeal with
this Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant
filed the current PCRA petition four years later, on August 13, 2015. Thus,
Appellant’s petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
To the extent Appellant attempts to invoke the “new constitutional right”
exception to the PCRA’s timeliness requirement, the Pennsylvania Supreme
Court has declared that the rule announced in Alleyne v. United States,
___ U.S. ___, 133 S. Ct. 2151, 186 L.Ed.2d 314 (2013), does not apply
retroactively. See Commonwealth v. Washington, ___ A.3d ___, 2016
WL 3909088 (Pa. filed July 9, 2016). Further, Appellant cannot meet the
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exception through reliance on subsequent Pennsylvania case law that merely
applied the constitutional right recognized in Alleyne. Therefore, the PCRA
court properly dismissed Appellant’s petition as time-barred.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2016
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