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NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

v. JOSEPH E. BURCKHARD IN THE SUPERIORCOURT OF PENNSYLVANIA



### Appellant No. 1622 MDA2016 Appeal

### fromthe PCRAOrder September 7, 2016 In theCourt ofCommon Pleas ofCentreCounty Criminal Division at No(s): 

### CP-14-CR-0000953-1996
BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ. MEMORANDUM BY BOWES, J.: 

### FILEDAUGUST

### 01, 

### 2017 Joseph E. Burckhard appeals 

### from the PCRA 

### court's dismissal 

### of his 

### third PCRA 

### petition as 

### untimely. We

### affirm. On June 4, 1997, a 

### jury convicted 

### Appellant of 

### fifty-four counts of 

### involuntary deviate sexual 

### intercourse 

### ("IDSI"), sixteen counts of indecent assault, and one 

### count of 

### corruption of minors. The 

### convictions stemmed from two years of sexual abuse 

### Appellant perpetrated upon six

### -year-old P.K.,while the child was in

### Appellant's home and 

### entrusted tothe care

### of his wife. On July 29, 1997, the 

### court sentenced him to 

### five to ten years 

### imprisonment on each ofseven of

### the IDSI counts, its stated 

### intention being to impose a 

### cumulative minimum sentence of 

### thirty-five years and a 

### cumulative maximum sentence of seventy years 

### imprisonment. On each 

### of


### * FormerJusticespecially assignedtothe 

### Superior Court.J

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the remaining 

### forty-six IDSI counts, 

### the court imposed the same 

### five to ten 

### year term of 

### imprisonment, but ran all of those sentences 

### concurrentlywith the 

### thirty-five to 

### seventyyears. The 

### applicability of a 

### mandatory minimum sentence of five to ten years 

### imprisonment for sexual assault of a 

### victim under age sixteen was acknowledged, butthe sentencing 

### courtexercised its 

### discretion to impose the 

### mandatory sentences 

### concurrently. In 

### addition, it did not impose a sentence on the sixteen countsofindecentassault and one count of 

### corruption of 

### minors, finding 

### that these offenses merged 

### with the moreseriousoffenses. This

### Court affirmed

### judgment ofsentence on 

### September 29, 2000, and 

### Appellant filed his 

### first PCRA 

### petition on April 12, 2001. Following 

### appointment of counsel, an amended 

### petition was filed and an 

### evidentiary hearing held. PCRA 

### relief was denied on July 22, 2003. 

### Appellant filed a 

### timely appeal, this Court 

### affirmed, and the Supreme Court denied allowance ofappeal. 

### Appellantfiled a second PCRA 

### petition on June 24, 2009, counsel was appointed and the 

### petition amended. 

### AfterAppellant pled, butfailed to prove, a 

### timeliness exception based on newly-discovered evidence,the PCRA 

### courtdismissed the 

### petition as 

### untimelyon November 5, 2010 On July 1, 2015, 

### Appellant filed the 

### instant PCRA 

### petition styled as 

### "Motion for Correction of 

### Sentence," counsel was 

### appointed, new counsel



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was appointed at Appellant's request, and the second 

### lawyer filed a 

### motion to 

### withdraw and no

### -merit letter pursuant to 

### Turner/Finley.' Counsel's 

### petition to 

### withdraw was granted and the 

### courtserved Rule 907 notice 

### of its 

### intent to dismiss the 

### petition as 

### untimely. Ultimately, the 

### court dismissed the 

### within petition, stating 

### that Appellant had failed to provide any reason 

### why 

### Commonwealth v. 

### Washington, 142 A.3d 810, 820 (Pa. 

### 2015), did not render the 

### petition untimely. Appellant 

### timely filed this appeal and presents two issues 

### for our review: 1. Did the lower 

### court err in denying 

### Appellants' P.C.R.A where Appellant challenged the 

### legality of sentence 

### pursuant to 

### Alleyne? 2. Did the lower 

### court abuse its 

### discretion in sentencing 

### Appellant to an aggregated sentence of

### thirty-five to 

### seventy years incarceration? Appellant's 

### briefat 3 

### (unnecessarycapitalization 

### omitted). Our standard of review 

### from the denial of post

### -conviction relief "is limited to 

### examining

### whetherthe PCRA

### court's 

### determination issupported by the evidence of record and 

### whether it is free of legal 

### error." 

### Commonwealth v. 

### Watley, 153 A.3d 1034, 1039 (Pa.Super. 

### 2016). We 

### "will not 

### disturbfindings

### that are supported bythe record." 

### Id. at 1040.

1 

### Commonwealth v. 

### Turner, 544 A.2d 927 (Pa. 

### 1988), and 

### Commonwealth v. 

### Finley, 550 A.2d 213 (Pa.Super. 

### 1988). 

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Before we address 

### Appellant's claims, however, we 

### must 

### first determine whether we have 

### jurisdiction to 

### entertain the 

### within appeal. A PCRA 

### petition, including a second or subsequent 

### petition, must be filed 

### within one 

### year of the date 

### judgment of sentence became final. 

### Commonwealth v. 

### Robinson, 139 A.3d 178 (Pa. 

### 2016). The 

### time-bar is 

### jurisdictional and 

### implicates the power of the 

### court to 

### adjudicate the 

### controversy. 

### Id. In this case, 

### Appellant's 

### judgment of sentence became final in November 2001, when he did not seekallowance 

### ofappeal 

### from this Court's 

### order affirming

### judgment of sentence. Thus, the 

### within petition filed more than 

### fifteen years later is 

### facially untimely. However, we do review the 

### merits of issues raised in PCRA 

### petitionsfiled beyond the 

### one-yeartime bar if the 

### petitioner pleads and proves any one of the following 

### statutorily enumerated exceptionstothe

### time-bar: (i) the 

### failure to raise the claim was the result of 

### interference by 

### government officials with the presentation of the claim in 

### violation ofthe Constitution or laws of

### this Commonwealth orthe 

### Constitution or laws ofthe United 

### States; (ii) thefacts upon which the claim is predicated were unknown to the 

### petitioner and could not have been ascertained by the exerciseofdue

### 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

### afterthe 

### time period provided in 

### this section and has been held by 

### that court to apply 

### retroactively. 

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42 Pa.C.S. § 

### 9545(b)(1)(i)-(iii). However, even if a 

### petition pleads one 

### of these exceptions, we will not consider it unless

### the petition was 

### "filed within 60 days of the date the claim could have been 

### presented." 42 Pa.C.S. § 

### 9545(b)(2). As the Commonwealth notes,

### Appellant does not address

### timeliness or 

### specifically invoke an exception tothe

### time bar. He argues

### that hissentence based on 

### mandatory minimum sentencing provisions was illegal, and 

### that he is 

### entitled to 

### relief based on the Supreme Court's decision in 

### Alleyne v. 

### UnitedStates, 133 S.Ct. 2151, 2163 

### (2013), holding 

### that"anyfact

### that, by law, increases the penalty 

### for a 

### crime must be 

### treated as an 

### elementof the offense, 

### submitted to a 

### jury, rather than a 

### judge, and found beyond a reasonable 

### doubt." Our High Court subsequently held in

### Commonwealth v. 

### Hopkins, 117 A.3d 247 (Pa. 

### 2015), 

### that a 

### two-year mandatory minimum sentence 

### for possession 

### of controlled substances 

### within a drug

### -free school zone was 

### unconstitutional under

### Alleyne. In 

### order to avail 

### himself of the exception to the 

### time bar 

### for new 

### constitutional rights, Appellant was required to file a 

### petition pleading and proving the exception. In his 

### petition, as well as in his 

### appellate brief, Appellant failed to invoke any 

### exception. To the 

### extent 

### that his reliance upon 

### Alleyne and 

### Hopkins can be construed as invoking the newly- recognized 

### constitutional right exception, we note 

### that neither

### Alleyne nor 

### Hopkins was held by the respective courts to 

### apply 

### retroactively.

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Furthermore, our High Court held in 

### Washington, supra at 820, 

### that 

### "Alleynedoes not apply 

### retroactivelyto cases pending on 

### collateral 

### review." Since 

### Appellant did not invoke or prove an exception to the 

### time-bar 

### that would 

### render his 

### petition 

### timely, we lack

### jurisdiction to consider his claims onthe 

### merits. Order

### affirmed.
Judgment Entered.

J seph D. 

### Seletyn, Prothonotary
Date: 

### 8/1/2017



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