Com. v. Hopkins, G.

Opinion

J-S72011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GEORGE J. HOPKINS

Appellant No. 2277 MDA 2015

Appeal from the PCRA Order December 10, 2015 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004161-2005

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED OCTOBER 25, 2016

Appellant, George J. Hopkins, appeals pro se from the order entered in

the Dauphin County Court of Common Pleas, which denied his second

petition filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.

§§ 9541-9546. On October 11, 2006, a jury convicted Appellant of two

counts of aggravated assault and one count each of firearms not to be

carried without a license, persons not to possess firearms, REAP, and false

identification to law enforcement authorities. On December 20, 2006, the

court sentenced Appellant to an aggregate term of 150-360 months’

imprisonment, which allegedly included a mandatory minimum sentence.

This Court affirmed the judgment of sentence on November 30, 2007, and

Appellant did not seek further review with our Supreme Court. See

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*Retired Senior Judge assigned to the Superior Court. J-S72011-16

Commonwealth v. Hopkins, 944 A.2d 793 (Pa.Super. 2007).

Appellant filed his first PCRA petition on January 2, 2008, which the

PCRA court denied on October 2, 2008. On July 16, 2015, Appellant filed the

current pro se PCRA petition. The PCRA court issued Rule 907 notice on

December 10, 2015, and dismissed the petition as untimely on December

31, 2015. Appellant timely filed a pro se notice of appeal. The PCRA court

ordered Appellant to file a Rule 1925(b) statement, and Appellant timely

complied.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). 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

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).

A petitioner asserting a timeliness exception must file a petition within sixty

days of the date the claim could have been presented. 42 Pa.C.S.A. §

9545(b)(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

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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 judgment of sentence became final on December

30, 2007, upon expiration of the time to file a petition for allowance of

appeal with the Pennsylvania Supreme Court. See Pa.R.A.P. 1113.

Appellant filed his current petition on July 16, 2015, over seven years later;

thus, the petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant attempts to invoke the “new constitutional right” exception to the

PCRA time bar by citing the U.S. Supreme Court’s decision in Alleyne v.

U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and the

Pennsylvania Supreme Court’s decision in Commonwealth v. Hopkins, ___

Pa. ___, 117 A.3d 247 (2015). Neither the U.S. Supreme Court nor the

Pennsylvania Supreme Court, however, has held that Alleyne or its progeny

apply retroactively on collateral review. See Commonwealth v. Miller,

102 A.3d 988 (Pa.Super. 2014) (holding that even if Alleyne announced

new constitutional right, neither our Supreme Court nor United States

Supreme Court has held that Alleyne applies retroactively, which is fatal to

appellant’s attempt to satisfy “new constitutional right” exception to

timeliness requirements of PCRA). See also Commonwealth v.

Washington, ___ Pa. ___, 142 A.3d 810 (2016) (holding Alleyne does not

apply retroactively on collateral review to challenge to mandatory minimum

sentence as “illegal”). Therefore, Appellant’s petition remains time barred,

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and the PCRA court lacked jurisdiction to review it. See Hackett, supra.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/25/2016

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