J.S17035/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

RICHARD A. CANNON, :

:

Appellant :

: No. 1316 WDA 2015

Appeal from the Order August 12, 2015

in the Court of Common Pleas of Mercer County Criminal Division

at No(s): CP-43-CR-0001003-2004

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 1, 2016

Appellant, Richard A. Cannon, appeals from the order of the Mercer 

County Court of Common Pleas dismissing his second Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, petition as meritless. Appellant 

challenges his 2005 mandatory minimum sentences, imposed under 18 

Pa.C.S. § 7508(a) (“Drug trafficking sentencing and penalties”), and asserts 

those sentences are now unconstitutional in light of Alleyne v. United 

States, 133 S. Ct 2151 (2013), and subsequent decisions by this Court. 

See, e.g., Commonwealth v. Fennell, 105 A.3d 13, 18-20 (Pa. Super. 

2014), appeal denied, 121 A.3d 494 (Pa. 2015). We affirm. 

 

*

Former Justice specially assigned to the Superior Court.
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This Court previously summarized the relevant procedural history of 

this appeal. 

On August 18, 2005, Appellant was convicted by a jury 

of seven counts of possession with intent to deliver 

controlled substances, 35 P.S. § 780-113(a)(30), seven 

counts of possession of controlled substances, 35 P.S. § 

780-113(a)(16), and six counts of use of a communication 

facility, 18 Pa.C.S.[ ] § 7512(a). Appellant was 

subsequently sentenced to an aggregate term of twelve 

years to twenty-five years imprisonment[, which included 

several mandatory minimum sentences of five years’ 

imprisonment based on 18 Pa.C.S. § 7508(a)(3)]. Trial 

counsel, William G. McConnell, Jr., Esquire, filed postsentence motions on Appellant’s behalf, which included a 

claim that Appellant’s sentence should be reduced because 

the Commonwealth engaged in unlawful sentence 

entrapment. Appellant’s post-sentence motion was denied 

without hearing on October 26, 2005.

On November 7, 2005, Appellant attempted to file a 

timely appeal of his judgment of sentence. The appeal 

was never filed or processed. As a result, Appellant filed a 

PCRA petition, and his direct appeal rights were reinstated 

nunc pro tunc. Appointed counsel, Randall T. Hetrick, 

Esquire, filed a notice of appeal and concise statement of 

errors complained of on appeal pursuant to Pa.R.[A].P. 

1925(b) for Appellant. On February 6, 2008, this Court 

denied the appeal, affirming Appellant’s judgment of 

sentence. [Commonwealth v. Cannon, 1975 WDA 2006 

(Pa. Super. Feb. 6, 2008)]. Appellant filed a petition for 

allowance of appeal with the Supreme Court, which was 

denied on October 14, 2008. [Commonwealth v. 

Cannon, 145 WAL 2008 (Pa. Oct. 14, 2008)].

On December 30, 2009, PCRA counsel, Scott Coffey, 

Esquire, filed a PCRA petition on behalf of Appellant. 

Attorney Coffey then filed an amended PCRA petition on 

January 27, 2010, in which he raised a claim that 

“trial/sentencing/post sentencing counsel was [sic] 

ineffective for failing to raise a claim that the 

Commonwealth manipulated [Appellant’s] sentence by 

waiting until he had committed 7 drug transactions over a 
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four month period, resulting in an increase of the 

mandatory minimum sentences requested from 5 years to 

32 years (the actual mandatory minimum imposed was 12 

years).”

Commonwealth v. Cannon, 713 WDA 2010 (Pa. Super. Jan. 25, 2011) 

(unpublished memorandum at 1-3). On April 8, 2010, The PCRA Court 

denied Appellant’s first PCRA petition following an evidentiary hearing. Id.

at 3. This Court affirmed, and the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal. Id. at 8; see also 

Commonwealth v. Cannon, 598 WAL 2011 (Pa. Mar. 7, 2012)

On July 27, 2015, Appellant filed the pro se “petition/motion to vacate 

judgment of sentence—motion to set aside the mandatory minimum,” which 

gives rise to this appeal.1 On August 12, 2015, the PCRA court entered a 

memorandum opinion and order denying relief. The court concluded it was 

“bound by stare decisis to follow” Commonwealth v. Riggle, 119 A.3d 

1059 (Pa. Super. 2015), and find no relief was due because Alleyne and its 

Pennsylvania progeny did not apply retroactively. See Order, 8/12/15; 

PCRA Ct. Op., 8/12/15, at 4 (unpaginated). Appellant timely filed a notice of 

appeal and a court-ordered Pa.R.A.P. 1925(b) statement. 

Appellant, in his pro se brief, presents the following question for 

review: “Is Appellant’s mandatory minimum sentence illegal and 

 

1 Although Appellant’s filing was received and docketed by the court on June 

29, 2015, the record contains an envelope bearing a postmark dated June 

27th, which we adopt as the date of filing. See Commonwealth v. 

Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).
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unconstitutional since 18 Pa.C.S.[ ] § 7508 has been declared 

unconstitutional by recent Superior Court decisions?” Appellant’s Brief at 5. 

Appellant cites to Alleyne, refers to this Court’s decisions invalidating 

mandatory minimum sentences, and asserts his sentences are similarly 

subject to correction. See id. at 10-11. We are constrained to disagree. 

It is well settled that the PCRA 

provides for an action by which persons convicted of 

crimes they did not commit and persons serving illegal 

sentences may obtain collateral relief. The action 

established in this subchapter shall be the sole means of 

obtaining collateral relief and encompasses all other 

common law and statutory remedies for the same purpose 

that exist when this subchapter takes effect, including 

habeas corpus and coram nobis.

42 Pa.C.S. § 9542; see also 42 Pa.C.S. § 6503(b) (“Where a person is 

restrained by virtue of sentence after conviction for a criminal offense, the 

writ of habeas corpus shall not be available if a remedy may be had by postconviction hearing proceedings authorized by law.”). Pennsylvania courts 

must “evaluate any post-conviction petition under the Post Conviction Relief 

Act (PCRA), regardless of the title of the document filed.” Williams v. Erie 

Cnty. Dist. Attorney’s Office, 848 A.2d 967, 969 (Pa. Super. 2004) 

(citation omitted); accord Commonwealth v. Rivera, 802 A.3d 629, 633 

(Pa. Super. 2002). 

Appellant’s present claim for relief from the application of a mandatory 

minimum sentence is cognizable under the PCRA. Cf. Commonwealth v. 

Ford, 947 A.2d 1251, 1252-53 (Pa. Super. 2008); Commonwealth v. 
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Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Therefore, his instant pro se

“petition/motion” must be regarded as a PCRA petition, his second. See

Williams, 848 A.2d at 969; Rivera, 802 A.3d at 633.

Consequently, our standard of review is as follows. “[W]e examine 

whether the PCRA court’s determination is supported by the record and free 

of legal error.” Miller, 102 A.3d at 992 (citations and quotation marks 

omitted). “[T]his Court may affirm the decision of the PCRA Court if it is 

correct on any basis.” Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa. 

Super. 2000); see also Commonwealth v. Callahan, 101 A.3d 118, 121 

(Pa. Super. 2014) (noting this Court may raise question of timeliness under 

PCRA sua sponte). 

Pennsylvania law makes clear that when “a PCRA 

petition is untimely, neither this Court nor the trial court 

has jurisdiction over the petition.” . . . [“A]n untimely 

petition may be received when the petition alleges, and the 

petitioner proves, that any of the three limited exceptions 

to the time for filing the petition, set forth at 42 Pa.C.S.A. 

§ 9545(b)(1)(i), (ii), and (iii), are met.” The PCRA 

provides, in relevant part, as follows.

* * *

(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 
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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.

Miller, 102 A.3d at 993 (quoting 42 Pa.C.S. § 9545(b)(1)(i)-(iii), (2)). 

Section 9545(b)(1)(ii) codifies the “previously unknown facts” 

exception. To invoke that provision, 

the petitioner must establish that: 1) the facts upon which 

the claim was predicated were unknown and 2) could not 

have been ascertained by the exercise of due diligence. If 

the petitioner alleges and proves these two components, 

then the PCRA court has jurisdiction over the claim under 

this subsection.

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citation 

omitted) (emphasis added). However, judicial decisions do not constitute 

facts for the purposes of Section 9545(b)(1)(ii). See id. Thus, the mere 

discovery of recent case law will not provide a basis for asserting a PCRA 

timeliness exception. See id. 
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Section 9545(b)(1)(iii) establishes a timeliness exception for newly 

recognized constitutional rights. To assert the exception, “a petitioner must 

prove that there is a ‘new’ constitutional right and that the right ‘has 

been held’ by that court to apply retroactively.” Miller, 102 A.3d at 

994 (citation omitted) (emphasis added). 

In Miller, this Court concluded Alleyne does not establish a timeliness 

exception under Section 9545(b)(1)(iii). Id. at 995. We reasoned, 

“[N]either 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.” Id. 

Instantly, Appellant’s judgment of sentence became final on January 

12, 2009,2and he had until January 12, 2010, to file a facially timely PCRA 

petition. See 42 Pa.C.S. § 9545(b)(1), (3). Therefore, he was required to 

plead and prove a timeliness exception under 42 Pa.C.S. § 9545(b) to 

establish jurisdiction over his July 27, 2015 motion/petition.3 This he did not 

do. Accordingly, this Court must affirm the PCRA court’s dismissal of 

 

2 As noted above, this Court affirmed the judgment of sentence on February 

6, 2008, and the Pennsylvania Supreme Court denied allowance of appeal on 

October 14, 2008. Appellant did not petition the United States Supreme 

Court for writ of certiorari in his direct appeal. We emphasize Appellant’s 

conviction became final before the United States Supreme Court decided 

Alleyne on June 17, 2013. See Commonwealth v. Ruiz, ___ A.3d ___, 

___, 2015 WL 9632089 (Pa. Super. Dec. 30, 2015). 

3 Moreover, Appellant’s petition was not filed by August 16, 2013, the 

sixtieth day after Alleyne was decided. See 42 Pa.C.S. § 9545(b)(2). 
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Appellant’s second PCRA petition. See Callahan, 101 A.3d at 121; 

Hutchins, 760 A.2d at 55.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: March 1, 2016