Com. v. Brown, M.

Opinion

J-S52045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MARK DAVID BROWN : : Appellant : No. 604 MDA 2017

Appeal from the PCRA Order March 2, 2017 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001797-2010

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 06, 2017

Appellant, Mark David Brown, appeals pro se from the order of the

Luzerne County Court of Common Pleas, which dismissed as untimely his

first petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On March 31, 2011, Appellant entered a nolo

contendere plea to unlawful contact with a minor. The court adjudicated

Appellant a sexually violent predator on July 28, 2011, and sentenced him to

14 to 44 months’ imprisonment, followed by 12 months’ probation.

Appellant did not seek direct review, and his judgment of sentence became

final on or about August 27, 2011. On February 19, 2015, the court revoked

Appellant’s probation and resentenced him to 14 to 72 months’

imprisonment plus 24 months’ probation, with a credit of 44 months’ time

served. This Court affirmed the judgment of sentence on February 4, 2016. J-S52045-17

Appellant filed his first, current PCRA petition on September 22, 2016,

claiming that his July 28, 2011 judgment of sentence was illegal under

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013). The PCRA court appointed counsel, who filed a motion to withdraw

and Turner/Finley1 no-merit letter on November 30, 2016. The PCRA

court issued Rule 907 notice on January 13, 2017, permitted counsel to

withdraw, and denied relief on March 2, 2017. Appellant timely filed a pro

se notice of appeal on March 29, 2017. No concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b) was ordered or filed.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed 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). The

statutory exceptions to the PCRA time-bar allow for very limited

circumstances which excuse the late filing of a petition; a petitioner

asserting a timeliness exception must file a petition within 60 days of when ____________________________________________

1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2). When

asserting the newly created constitutional right exception under Section

9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’ constitutional

right and that the right ‘has been held’ by that court to apply retroactively.”

Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal

denied, 616 Pa. 625, 46 A.3d 715 (2012).

Instantly, Appellant’s 2011 judgment of sentence became final on or

about August 27, 2011, upon expiration of the 30 days for filing a direct

appeal. See Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA

petition on September 22, 2016, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new

constitutional right” exception, citing Alleyne, which affords Appellant no

relief. See Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810

(2016) (holding new constitutional rule announced in Alleyne is not

substantive or watershed procedural rule that warrants retroactive

application to collateral attacks on mandatory minimum sentences where

judgment of sentence became final before Alleyne was decided); See also

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (holding that

even if Alleyne announced new constitutional right, neither our Supreme

Court nor U.S. Supreme Court has held Alleyne and its progeny apply

retroactively, which is fatal to appellant’s attempt to satisfy “new

constitutional right” exception to timeliness requirements of PCRA).

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Moreover, Appellant failed the 60-day rule. See 42 Pa.C.S.A. § 9545(b)(2).

Finally, the record shows the court did not impose a mandatory minimum

sentence. Therefore, Appellant’s petition remains time-barred, and the

PCRA court properly dismissed it. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/6/2017

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