Commonwealth vs. Ray Henry No. CP-38-CR-0001760-2008

Criminal Law-Post Conviction Relief Act-Subsequent Petition-Jurisdiction-Timeliness-Exception-New Constitutional Right-Mandatory Minimum Sentence-Retroactive Application
Defendant was sentenced on March 25, 2009 on Robbery and related convictions to an aggregate sentence of four (4) to twenty (20) years’ imprisonment. Defendant’s judgment of sentence was affirmed by the Pennsylvania Superior Court on March 3, 2010. Defendant’s first Petition for Post Conviction Collateral Relief was denied by the Court on July 19, 2010, the denial of which was affirmed by the Pennsylvania Superior Court on February 23, 2011. On May 1, 2015, Defendant filed a Motion to Modify and Correct Illegal Sentence, asserting that his judgment of sentence is illegal pursuant to a holding by the United States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013), that any fact that increases the penalty for a crime, including a fact that triggers application of a mandatory minimum sentencing provision, must be submitted to the jury and proven beyond a reasonable doubt.
1. The Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., is the sole means to present a collateral challenge to a sentence. Any petition filed after a judgment of sentence becomes final should be treated as a request for relief pursuant to the PCRA.
2. Jurisdictional time limitations for filing a PCRA petition are mandatory, and a court has no authority to entertain the merits of a PCRA petition that is not filed within the statutory timeliness requirements of the PCRA.
3. A PCRA petition, including a subsequent petition, must be filed within one (1) year of the date that the judgment becomes final. § 9545(b)(1). A judgment becomes final at the conclusion of direct review, including discretionary review in the United States Supreme Court and the Pennsylvania Supreme Court, or the expiration of time for seeking such review. § 9545(b)(3). There are statutory exceptions to the one (1) year time limitation that confers jurisdiction upon the court to entertain an untimely PCRA petition. A statutory exception to the one (1) year limitation is if the petition alleges and proves that the right asserted is a constitutional right that was recognized by the United States Supreme Court or the Pennsylvania Supreme Court after the one (1) year limitation and has been held by that Court to apply retroactively. § 9545(b)(1)(iii). Any petition invoking an exception to the one (1) year timeliness requirements must be filed within sixty (60) days of the date when the claim could have been presented. § 9545(b)(2). The defendant has the burden of pleading in the petition and proving that an exception applies.
4. Defendant’s current Motion to Modify and Correct Illegal Sentence is untimely under the PCRA, as it was filed more than one (1) year after his judgment of sentence became final.
5. Defendant asserted in his Motion that since Alleyne, supra, set forth a new constitutional right by the United States Supreme Court after the one (1) year time limitation to file a timely PCRA petition had elapsed, the Court has jurisdiction to entertain the merits of his Motion.
6. Even assuming that Alleyne recognized a new constitutional right, neither the United States Supreme Court nor the Pennsylvania Supreme Court has held that the holding in Alleyne may be applied retroactively to cases in which a defendant’s judgment of sentence has become final.
7. Even if the United States Supreme Court or the Pennsylvania Supreme Court had held that the holding in Alleyne should be applied retroactively, the sixty (60) day time period for a petition invoking an exception to the timeliness requirements of the PCRA that relies upon a holding in a judicial decision begins to run on the date of the underlying judicial decision. Defendant failed to file his Motion within sixty (60) days of June 17, 2013, the date when the United States Supreme Court issued its decision in Alleyne.

L.C.C.C.P. No. CP-38-CR-0001760-2008, Opinion by Samuel A. Kline, Judge, September 25, 2015.

Gregory H. Becker, Esquire, for the Commonwealth
Erin Zimmerer, Esquire for Defendant Ray Henry

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION CP-38-CR-1760-2008

COMMONWEALTH OF PENNSYLVANIA
v.
RAY HENRY

ORDER

And now, to wit, this 25th day of September, 2015, upon consideration of the Defendant’s Petition filed pursuant to the Post-Conviction Relief Act, the Court finds that it lacks the jurisdiction to entertain the merits of the Petition, and the Petition is DISMISSED without a hearing. The Defendant is advised he may appeal this decision to the Superior Court of Pennsylvania within 30 days after service of this Order.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:
Gregory H. Becker, Esq. for the Commonwealth
Erin Zimmerer, Esq. for the Defendant

OPINION, KLINE, J., SEPTEMBER 25, 2015
Before the Court is the Defendant’s second Petition filed pursuant to the Post-Conviction Relief Act (hereinafter “PCRA”), 42 Pa.C.S.A. §9541 et. seq. For the reasons set forth herein, we dismiss the Petition without a hearing as we lack the jurisdiction to entertain the merits, as specified below.
FACTS AND PROCEDURAL HISTORY
On February 6, 2009, a jury found the Defendant guilty of robbery, criminal conspiracy to commit robbery, and possession of an instrument of crime. On March 25, 2009, the Defendant was sentenced to an aggregate sentence of 4-20 years in a state correctional institution. The Defendant appealed. On March 3, 2010, the Superior Court of Pennsylvania granted the Defendant’s trial counsel motion to withdraw, and the Court affirmed his judgment of sentence. (See Commonwealth of Pennsylvania v. Ray Henry, 949 MDA 2009).
On April 12, 2010, the Defendant filed a first PCRA Petition. This Court denied the PCRA Petition after hearing held on July 19, 2010. The Defendant filed an appeal to the Superior Court of Pennsylvania. On February 23, 2011, the Superior Court granted PCRA counsel’s motion to withdraw and affirmed the denial of the first PCRA Petition. (See Commonwealth of Pennsylvania v. Ray Henry, 1321 MDA 2010).
On May 1, 2015, the Defendant filed a pro se Motion to Modify and Correct Illegal Sentence Nunc Pro Tunc. The Defendant claimed that his sentence was illegal pursuant to the holding in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013). A rule to show cause was issued upon the Commonwealth. The Commonwealth filed a response on May 13, 2015. Since the Defendant was requesting relief available under the PCRA, the Court treated the Defendant’s pro se Motion as a PCRA Petition, and we notified the Defendant that it intended to dismiss the PCRA Petition without a hearing. “[T]he PCRA statute is intended as the sole means of collaterally challenging a sentence. Com. v. Concordia, 97 A.3d 366, 372 (Pa. Super. 2014). Generally, any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition. Id.
On July 8, 2015, the Defendant filed a response to the proposed dismissal. On August 31, 2015, the Defendant filed a counseled Amended PCRA Petition. The case is thus before us and ripe for disposition.
DISCUSSION
The Court finds that it lacks the jurisdiction to entertain the merits of the second PCRA Petition. The PCRA provides as follows:
§ 9545. Jurisdiction and proceedings
(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 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.A. § 9545(b). “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.” 42 Pa.C.S.A. § 9545(b)(3).
It is obvious that the second PCRA Petition is patently untimely as it was filed more than one year after his judgment of sentence became final. Therefore, the issue as to whether this Court has the jurisdiction to entertain the merits turns on whether one of the statutory enumerated exceptions applies. “If a petition is not filed within the one-year time frame, the courts lack jurisdiction to grant relief unless the petitioner can plead and prove that one of the three statutorily-enumerated exceptions to the time-bar applies.” Com. v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007). In addition, a petition invoking one or more of these exceptions must be filed within sixty days of the date the claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “The petitioner has the burden to plead in the petition and subsequently to prove that an exception applies.” Flower, 930 A.2d at 591.
In the Defendant’s response to the proposed dismissal and in the Amended PCRA Petition filed by counsel, the Defendant asserts that exception 3 set forth above applies to the instant case. The Defendant specifically claims that Alleyne established a new constitutional right, thereby relieving him of the time limitations set forth by the PCRA. The Defendant’s argument lacks merit.
The third exception provides, “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). In Com. v. Miller, 102 A.3d 988 (Pa. Super. 2014), an appellant was sentenced to a mandatory minimum pursuant to 42 Pa.C.S.A. §9714(a)(2). In a second PCRA Petition, the appellant averred that the time-bar exception at Section 9545(b)(1)(iii) applied. Specifically, appellant claimed that the decision in Alleyne announced a new constitutional right that applies retroactively. The Superior Court rejected this argument by providing the following analysis:
Subsection (iii) of Section 9545[ (b)(1) ] has two requirements. First, it provides that 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 provided in this section. Second, it provides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and that the right “has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e., “that court” has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.
As noted above, Appellant argues that Alleyne announced a new constitutional right that applies retroactively. In Alleyne, the Supreme Court held that “facts that increase mandatory minimum sentences must be submitted to the jury” and must be found beyond a reasonable doubt. Alleyne is an extension of the Supreme Court’s line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the Court overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), in which the Court had reached the opposite conclusion, explaining that there is no constitutional distinction between judicial fact finding which raises the minimum sentence and that which raises the maximum sentence.
It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty. This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed to the crime—and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.
Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.
Alleyne, supra at 2160–2161 (internal quotation marks and citations omitted).
Even assuming that Alleyne did announce a new constitutional right, neither our Supreme Court, nor the United States Supreme Court has held that Alleyne is to be applied retroactively to cases in which the judgment of sentence had become final. This is fatal to Appellant’s argument regarding the PCRA time-bar. This Court has recognized that a new rule of constitutional law is applied retroactively to cases on collateral review only if the United States Supreme Court or our Supreme Court specifically holds it to be retroactively applicable to those cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.Super.2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012), citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super.2007) (stating, “for purposes of subsection (iii), the language ‘has been held by that court to apply retroactively’ means the court announcing the rule must have also ruled on the retroactivity of the new constitutional right, before the petitioner can assert retroactive application of the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy the new constitutional right exception to the time-bar.
Miller, 102 A. 3d at 993-994 (emphasis added, certain citations omitted).
Accordingly, assuming that Alleyne recognized a new constitutional right, the Defendant completely fails to acknowledge that the right also has to have been held by the United States Supreme Court or the Pennsylvania Supreme Court to apply retroactively in order for the exception to apply. Therefore, the Defendant’s reliance on this exception fails.
Even assuming that the exception applies, the Defendant also fails to recognize that he did not raise his claim within the 60 day deadline set forth in 42 Pa.C.S.A. § 9545(b)(2). “In addition to pleading and proving one of the three enumerated exceptions to the time-bar, this Court has often explained that all of the PCRA time-bar exceptions are subject to a separate deadline.” Miller, 102 A.3d at 993, footnote 4. Alleyne was decided on June 17, 2013, and this date triggers the 60 day deadline. See Miller, 102 A.3d at 993, footnote 4. “…[T]he sixty-day period begins to run upon the date of the underlying judicial decision. Ignorance of the law does not excuse [a defendant’s] failure to file his petition within the 60 days following the…decision. Neither the court system nor the correctional system is obliged to educate or update prisoners concerning changes in case law.” Com. v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (citations omitted).
To conclude, jurisdictional time limitations for filing post-conviction petitions are mandatory and interpreted literally, and a court has no authority to extend filing periods except as the statute permits; if the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition. Com. v. Jackson, 30 A.3d 516 (Pa. Super. 2011). Because the statutory time restrictions are jurisdictional in nature, they may not be altered or disregarded to reach the merits of the claims raised in a petition under the PCRA. Com. v. Valentine, 928 A.2d 346 (Pa. Super. 2007).
We are aware that an issue pertaining to Alleyne goes to the legality of a sentence. The Superior Court also stated:
It is generally true that “this Court is endowed with the ability to consider an issue of illegality of sentence sua sponte.” However, in order for this Court to review a legality of sentence claim, there must be a basis for our jurisdiction to engage in such review. See Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.Super.2011) (stating, “[a] challenge to the legality of a sentence … may be entertained as long as the reviewing court has jurisdiction[ ]”) (citation omitted). As this Court recently noted, “[t]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised … in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim.”
Miller, 102 A.3d at 995 (citations omitted).
For all the aforementioned reasons, we find that we lack the jurisdiction to entertain the merits of the second PCRA Petition, and we dismiss the Second PCRA Petition on this action number without a hearing. We will enter an Order consistent with the foregoing.

1) 18 Pa.C.S.A. §3701(a)(1)(ii), (iv) and (v), 903, and 907, respectively.

2) The Defendant also filed this document to docket number CP-38-CR-318-2009 where he raises the exact same argument.  This docket number is before the Honorable John C. Tylwalk.

3) In Alleyne, the Supreme Court of the United States concluded that any 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.  Mandatory minimum sentences increase the penalty for a crime.  Therefore, any fact that increases the mandatory minimum is an element that must be submitted to the jury.

4) On May 13, 2015, an Order was mistakenly entered which denied the Motion to Modify and Correct Illegal Sentence Nunc Pro Tunc.  This Order was later vacated as erroneously being entered.

5) We note that the Defendant was sentenced more than 4 years before Alleyne was even decided.