J-S23007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL LEONARD RAZNY,

Appellant No. 3186 EDA 2016

Appeal from the PCRA Order of September 23, 2016

In the Court of Common Pleas of Pike County

Criminal Division at No(s): CP-52-CR-0000110-2009

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 21, 2017

Appellant, Michael Leonard Razny, appeals from the order entered on 

September 23, 2016, dismissing as untimely his petition filed pursuant to 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We 

affirm.

The PCRA court summarized the facts and procedural history of this 

case as follows:

On June 11, 2009, [Appellant] entered a guilty plea to one 

(1) count of robbery under 18 Pa.C.S.A. § 3701(a)(1)(ii) 

and one count of firearms not to be carried without a license 

under 18 Pa.C.S.A. § 6106(a). The plea agreement 

included a minimum mandatory sentence of five (5) years[’] 

incarceration[, pursuant to 42 Pa.C.S.A. § 9712 (sentences 

for offenses committed with firearms),] due to the factual 

allegation that [Appellant] pointed a modified Mossberg 

shotgun at the victim. 

On August 27, 2009, [Appellant] was sentenced [] to a total 

aggregate sentence of incarceration in a state correctional 
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facility for a period of not less than ten and one half (10.5) 

years nor more than twenty-one (21) years. [Appellant] 

filed a motion for modification of sentence on September 8, 

2009, and [the trial] court denied [Appellant’s] motion on 

September 11, 2009.

On March 3, 2016, [Appellant] filed a pro se PCRA petition 

and argued that his mandatory minimum sentence was 

unconstitutional based on the Supreme Court of 

Pennsylvania’s decision in Commonwealth v. Hopkins, 

[117 A.3d 247 (Pa. 2015), filed on June 15, 2015]. [The 

PCRA court] appointed [] PCRA counsel on March 4, 2016. 

An evidentiary hearing was held on August 5, 2016. [PCRA] 

counsel filed a motion to withdraw as counsel and no-merit 

letter on September 21, 2016. On September 23, 2016, 

[the PCRA court] entered an order which notified 

[Appellant] of the intention to dismiss his PCRA [petition, 

pursuant to Pa.R.A.P. 907]. The order also stated that 

[Appellant] was entitled to respond to the proposed 

dismissal within twenty (20) days of the order.

[Appellant] did not file a response to [the PCRA court’s] 

order of September 23, 2016. However, on October 12, 

2016, [] Appellant filed a premature notice of appeal as to 

the order dated September 23, 2016. On October 14, 

2016, [the PCRA court] entered an order dismissing 

[Appellant’s petition] for [PCRA] relief and granting [PCRA 

counsel’s] motion to withdraw as counsel. On that same 

day, [the PCRA court] ordered [] Appellant [to] file a 

concise statement of [errors] complained of on appeal 

[pursuant to Pa.R.A.P. 1925(b)] within twenty-one (21) 

days from the date of the order.

PCRA Opinion, 11/23/2016, at 1-2 (unpaginated) (superfluous capitalization 

omitted). 

The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on 

November 23, 2016. As of the time of the filing of that opinion, Appellant 

had not filed a Rule 1925(b) concise statement. Thus, the PCRA court was 
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“of the opinion that no issue [had] been preserved for appellate review.” Id.

at 2 (unpaginated).

We review the denial of PCRA relief to determine whether the findings 

of the PCRA court are supported by the record and free of legal error. 

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citation 

omitted).

On appeal, Appellant does not address the PCRA court’s determination 

that his failure to file a Rule 1925(b) statement resulted in waiver of 

appellate review of the dismissal of his PCRA petition. Our Supreme Court 

has stated that our jurisprudence is clear and well-settled, and firmly 

establishes that:

Rule 1925(b) sets out a simple bright-line rule, which 

obligates an appellant to file and serve a Rule 1925(b) 

statement, when so ordered; any issues not raised in a Rule 

1925(b) statement will be deemed waived; the courts lack 

the authority to countenance deviations from the Rule's 

terms; the Rule's provisions are not subject to ad hoc

exceptions or selective enforcement; appellants and their 

counsel are responsible for complying with the Rule's 

requirements; Rule 1925 violations may be raised by the 

appellate court sua sponte, and the Rule applies 

notwithstanding an appellee's request not to enforce it[.] 

[...]In order to preserve their claims for appellate review, 

[a]ppellants must comply whenever the trial court orders 

them to file a [s]tatement of [errors] [c]omplained of on 

[a]ppeal pursuant to Pa.R.A.P. 1925. Any issues not raised 

in a Pa.R.A.P. 1925(b) statement will be deemed waived.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). “[A] pro se litigant 

must comply with the procedural rules set forth in the Pennsylvania Rules of 

[Appellate Procedure].” Commonwealth v. Freeland, 106 A.3d 768, 776 
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(Pa. Super. 2014) (citation omitted). Based upon all of the foregoing, we 

conclude that Appellant waived all issues for appellate review.

Had Appellant properly preserved his claims, however, we further 

conclude that the PCRA court was without jurisdiction to entertain 

Appellant’s untimely PCRA petition. We have previously determined:

It is well-established that the PCRA's timeliness 

requirements are jurisdictional in nature and must be 

strictly construed; courts may not address the merits of the 

issues raised in a petition if it is not timely filed. Generally, 

a PCRA petition must be filed within one year of the date 

the judgment of sentence becomes final unless the 

petitioner meets his burden to plead and prove one of the 

exceptions enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), 

which include: (1) the petitioner's inability to raise a claim 

as a result of governmental interference; (2) the discovery 

of previously unknown facts or evidence that would have 

supported a claim; or (3) a newly-recognized constitutional 

right. However, the PCRA limits the reach of the exceptions 

by providing that a petition invoking any of the exceptions 

must be filed within 60 days of the date the claim first could 

have been presented. 

Commonwealth v. Walters, 135 A.3d 589, 591–592 (Pa. Super. 2016) 

(internal citations and quotations omitted).

Appellant’s current PCRA petition was filed over a year after his 

judgment of sentence became final. A judgment of sentence becomes final 

at the conclusion of direct review or when the time for seeking direct review 

expires. See 42 Pa.C.S.A. § 9545(b)(3). When a timely post-sentence 

motion is filed, an appellant has 30 days from the entry of the order deciding 

the motion to file a notice of appeal. See Pa.R.Crim.P. 720(A)(2)(a). Thus, 

Appellant had 30 days from September 11, 2009 to file a direct appeal with 
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this Court. Appellant did not. Thus, upon expiration of the 30-day appeal 

period, Appellant’s judgment of sentence became final on Monday, October 

12, 2009. See 1 Pa.C.S.A § 1908 (“Whenever the last day of [a statutory] 

period shall fall on [] Sunday [] such day shall be omitted from the 

computation.”). Therefore, Appellant’s PCRA petition filed on March 3, 2016, 

over six years later, was patently untimely.

Pursuant to 42 Pa.C.S.A. § 9545(b)(1)(iii), Appellant claims that his 

mandatory minimum sentence is illegal because 42 Pa.C.S.A. § 9712 is 

unconstitutional based on the Supreme Court of Pennsylvania’s decision in 

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)1and the United 

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 

2151 (2013). Appellant’s Brief at 9, 11. However, in Commonwealth v. 

Washington, 142 A.3d 810 (Pa. 2016), our Supreme Court, in specifically 

examining Section 9712, held “that Alleyne does not apply retroactively to 

cases pending on collateral review[.]” Washington, 142 A.3d at 820. 

Thus, Appellant cannot rely on Alleyne or its progeny as a newly recognized 

constitutional right in the PCRA context. As such, we discern no error of law 

____________________________________________

1

 Hopkins was a direct appeal challenge to the constitutionality and 

severability of 18 Pa.C.S.A. § 6317(a) (imposing a mandatory minimum for 

drug-free school zones). The procedural posture and mandatory minimum 

sentencing statute are completely different from the instant case. We 

declared Section 9712 unconstitutional in Commonwealth v. Valentine, 

101 A.3d 801 (Pa. Super. 2014), after Appellant’s judgment of sentence 

became final. Thus, in order to be entitled to relief, Appellant must establish 

he is entitled to retroactive application of the law. 
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by the PCRA court for dismissing Appellant’s PCRA petition for lack of 

jurisdiction.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2017