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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

v. 

JOSEPH E. BURCKHARD 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

Appellant No. 1622 MDA 2016 

Appeal from the PCRA Order September 7, 2016 

In the Court of Common Pleas of Centre County 

Criminal Division at No(s): CP-14-CR-0000953-1996 

BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ. 

MEMORANDUM BY BOWES, J.: FILED AUGUST 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 to the care of his 

wife. On July 29, 1997, the court sentenced him to five to ten years 

imprisonment on each of seven 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 

* Former Justice specially assigned to the Superior Court. 
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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 concurrently with 

the thirty-five to seventy years. The applicability of a mandatory minimum 

sentence of five to ten years imprisonment for sexual assault of a victim 

under age sixteen was acknowledged, but the sentencing court exercised its 

discretion to impose the mandatory sentences concurrently. In addition, it 

did not impose a sentence on the sixteen counts of indecent assault and one 

count of corruption of minors, finding that these offenses merged with the 

more serious offenses. 

This Court affirmed judgment of sentence 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 

of appeal. Appellant filed a second PCRA petition on June 24, 2009, counsel 

was appointed and the petition amended. After Appellant pled, but failed to 

prove, a timeliness exception based on newly -discovered evidence, the PCRA 

court dismissed the petition as untimely on 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 court served 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 brief at 3 (unnecessary capitalization omitted). 

Our standard of review from the denial of post -conviction relief "is 

limited to examining whether the PCRA court's determination is supported 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 disturb findings that are supported by the 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 seek allowance of appeal 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 petitions filed beyond the one-year time bar 

if the petitioner pleads and proves any one of the following statutorily 

enumerated exceptions to the 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 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. 

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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 to the time bar. He argues that his sentence 

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. 

United States, 133 S.Ct. 2151, 2163 (2013), holding that "any fact that, by 

law, increases the penalty for a crime must be treated as an element of 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 

"Alleyne does not apply retroactively to 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 on the merits. 

Order affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 8/1/2017 

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