J-S50018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES J. BURDEN

Appellant No. 2699 EDA 2014

Appeal from the Order July 23, 2014

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0007263-2007

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.: FILED OCTOBER 21, 2015

Appellant, James J. Burden, appeals, pro se, from the July 23, 2014 

order dismissing, as untimely, his second petition for relief filed pursuant to 

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

careful review, we affirm.

We summarize the relevant procedural history from the certified 

record in this case as follows. On March 19, 2008, Appellant entered into an 

open guilty plea to six counts of manufacture, delivery, or possession with 

intent to deliver a controlled substance, five counts of dealing in unlawful 

proceeds, and one count each of corrupt organizations (employee), criminal 

conspiracy, criminal use of a communication facility, criminal attempt to 

manufacture or deliver, criminal conspiracy to engage in corrupt 
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organizations, criminal conspiracy to aid, and possession of marijuana.1 

Immediately thereafter, the trial court imposed an aggregate judgment of 

sentence of 181⁄2 to 50 years’ imprisonment. On March 27, 2008, Appellant 

filed a timely post-sentence motion, which the trial court denied on August 

11, 2008. Appellant did not appeal his sentence to this Court.

On November 14, 2008, Appellant timely filed his first PCRA petition. 

Appellant was appointed counsel, and the PCRA court conducted a hearing 

on Appellant’s petition on July 21, 2009. The next day, July 22, 2009, 

Appellant agreed to withdraw his PCRA petition and motioned, instead, for 

reconsideration of his sentence nunc pro tunc, to which the Commonwealth 

agreed. Immediately thereafter, Appellant and the Commonwealth entered 

into a negotiated guilty plea, under which the trial court vacated Appellant’s 

March 19, 2008 judgment of sentence and resentenced Appellant to an 

aggregate judgment of sentence of 12 to 28 years’ imprisonment, followed 

by 12 years’ probation. N.T., 7/22/09, at 3-12. Appellant did not file a 

timely post-sentence motion or a direct appeal to this Court.

On August 20, 2009, Appellant did, however, file, pro se, an untimely 

post-sentence motion to vacate or reconsider the fines, costs, and restitution 

nunc pro tunc. See Pa.R.Crim.P. 720(A)(1) (providing that a post-sentence 

____________________________________________

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 5111(a)(1), 911(b)(3), 

911(b)(4), 7512(a), 901(a), 903(a)(1), 903(a)(2), and 35 P.S. § 780-

113(a)(31), respectively.
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motion must be filed within ten days of the imposition of sentence). The 

trial court did not expressly grant nunc pro tunc relief before Appellant’s 

sentence became final on August 21, 2009. Therefore, Appellant’s untimely 

post-sentence motion did not toll the appeal period. See Commonwealth 

v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (explaining that a postsentence motion nunc pro tunc filed within the 30-day appeal period may toll 

the appeal period if the appellant properly requests nunc pro tunc relief, and 

the trial court expressly permits the filing within the appeal period), citing 

Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en 

banc). The trial court ultimately denied the post-sentence motion on 

October 19, 2009. Appellant did not appeal that denial to this Court.

On October 12, 2012, Appellant filed, pro se, a motion for modification 

of sentence. The PCRA court treated it as Appellant’s first PCRA petition and 

appointed counsel. On November 1, 2013, following a hearing, the PCRA 

court denied Appellant’s petition. On December 12, 2013, Appellant filed an 

appeal to this Court, and this Court affirmed Appellant’s judgment of 

sentence on June 24, 2014. Commonwealth v. Burden, 105 A.3d 43 (Pa. 

Super. 2014) (unpublished memorandum). Appellant did not file a petition 

for allowance of appeal with our Supreme Court.

Thereafter, on July 14, 2014, Appellant filed, pro se, the instant PCRA 

petition. The PCRA court denied Appellant’s petition without a hearing on 
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July 23, 2014. On August 19, 2014, Appellant filed a timely notice of 

appeal.2

On appeal, Appellant raises the following five issues for our review.

A. Whether the sentence in this case is illegal and 

violates the Sixth Amendment to the United 

States Constitution because the sentencing 

[court] relied upon conduct not found by a [j]ury 

or admitted in a plea?

B. Whether the [p]etition in this case was timely 

filed pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i) and 

(ii)?

C. Whether under Teague v. Lane, 489 U.S. 288 

(1989) and its progeny the United States 

Supreme Court’s decision in Alleyne v. United 

States, 133 U.S. 2151 (2013) should be applied 

retroactively?

D. Whether the [a]pplication of the [m]andatory 

[p]rovision in sentencing, now determined to be 

____________________________________________

2 Although Appellant’s notice of appeal was docketed on August 21, 2014, 

the envelope that the notice of appeal was mailed in is dated August 19, 

2014. Under the prisoner mailbox rule, “a pro se prisoner’s document is 

deemed filed on the date he delivers it to prison authorities for mailing.” 

Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation 

omitted), appeal denied, 46 A.3d 715 (Pa. 2012). As a result, we deem 

Appellant’s notice of appeal filed on August 19, 2014, and therefore timely. 

See Pa.R.A.P. 903(a) (providing that a notice of appeal must be filed within 

30 days). We further note that while the clerk of courts found his notice of 

appeal defective, that has no effect on its timeliness. See Pa.R.A.P. 902 

(providing that the “[f]ailure of an appellant to take any step other than the 

timely filing of a notice of appeal does not affect the validity of the 

appeal...[]”). Appellant cured those defects on September 4, 2014. 

Moreover, the PCRA court did not order Appellant to file a concise statement 

of matters complained of on appeal pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(b), and the PCRA court authored an opinion on 

January 7, 2015. 
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unconstitutional, vitiates the sentence and 

eliminates all question of waiver, timeliness and 

due diligence as bars to the relief sought?

E. Whether having declared the [m]andatory 

provision relied upon herein illegal, allowing 

Appellant to continue to suffer that sentence 

constitutes cruel and unusual punishment in 

violation of the Eighth Amendment to the United 

States Constitution?

Appellant’s Brief at 3.

We begin by noting our well-settled standard of review. “In reviewing 

the denial of PCRA relief, we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation 

marks and citation omitted). “The scope of review is limited to the findings 

of the PCRA court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the trial level.” Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled 

that a PCRA court’s credibility determinations are binding upon an appellate 

court so long as they are supported by the record.” Commonwealth v. 

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this 

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth 

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

Before we may address the merits of Appellant’s arguments, we must 

first consider the timeliness of Appellant’s PCRA petition because it 

implicates the jurisdiction of this Court and the PCRA court. 
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Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation 

omitted). Pennsylvania law makes clear that when “a PCRA petition is 

untimely, neither this Court nor the trial court has jurisdiction over the 

petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) 

(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for 

filing a PCRA petition is not subject to the doctrine of equitable tolling; 

instead, the time for filing a PCRA petition can be extended only if the PCRA 

permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 

2014) (internal quotation marks and citation omitted), cert. denied, Ali v. 

Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord finality to the 

collateral review process.” Commonwealth v. Watts, 23 A.3d 980, 983 

(Pa. 2011) (citation omitted). “However, an 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.” Commonwealth v. 

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted). The PCRA 

provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings

...

(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 
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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 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. 

...

42 Pa.C.S.A. § 9545(b)(1)-(2).

Here, Appellant was sentenced on July 22, 2009, and did not file a 

direct appeal with this Court. As a result, Appellant’s judgment of sentence 

became final on August 21, 2009, when the time for Appellant to file a notice 

of appeal to this Court expired. See id. § 9545(b)(3) (stating, “a judgment 

becomes final at the conclusion of direct review, including discretionary 
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review in the Supreme Court of the United States and the Supreme Court of 

Pennsylvania, or at the expiration of time for seeking the review[]”). 

Accordingly, Appellant had until August 21, 2010 to file a timely PCRA 

petition. See id. § 9545(b)(1) (providing that a PCRA petition must be filed 

within one year of the judgment of sentence becoming final to be considered 

timely). Therefore, Appellant’s present July 14, 2014 petition was facially 

untimely. See id. However, Appellant asserts that two time-bar exceptions 

apply in this case. Specifically, Appellant raises the governmental 

interference and the newly discovered fact exceptions to the time-bar. 

Appellant’s Brief at 9-10. We conclude that Appellant’s alleged basis for 

invoking these exceptions, the United States Supreme Court’s decision in 

Alleyne, does not satisfy the requirements of either exception.

First, in order to meet the statutory requirements of the governmental 

interference exception, “[the] [a]ppellant [is] required to plead and prove 

that his failure to raise the claim previously was the result of interference by 

government officials with the presentation of the claim [or claims] in 

violation of the Constitution or laws of this Commonwealth or the 

Constitution or laws of the United States....” Commonwealth v. Chester, 

895 A.2d 520, 523 (Pa. 2006) (internal quotation marks and citation 

omitted; emphasis in original). 

In his brief, Appellant attempts to invoke the governmental 

interference exception based on Alleyne with the following argument.
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The evidence which the instant petition rests [on] 

was within the knowledge and control of the 

sentencing [c]ourt, specifically, that the facts relied 

upon in imposing the mandatory provision at 

sentencing were judicially found and unavailable to 

Appellant until Alleyne was decided and 

subsequently clarified by the Blair County Court of 

Common Pleas. 

Appellant’s Brief at 9. Appellant’s argument does not fit into the 

governmental interference exception. Appellant did not plead any 

affirmative interference by a government official that prevented him from 

bringing a claim that his mandatory minimum sentence was unconstitutional. 

Instead, Appellant had knowledge of the facts the sentencing court relied 

upon in imposing the sentence because those facts were available to him 

prior to his plea, at the time of his plea, and at the sentencing hearing when 

the sentencing court disclosed the basis for its sentencing decision in open 

court. Moreover, the Alleyne decision was announced in the course of the 

normal judicial process; Appellant does not allege that a government official 

interfered with his ability to discover Alleyne or bring a claim based on 

Alleyne. Therefore, Appellant has failed to plead a proper claim of 

governmental interference, and his PCRA petition is untimely on this basis. 

See Chester, supra. 

Likewise, our Supreme Court has previously described a petitioner’s 

burden under the newly discovered evidence exception as follows. 

[S]ubsection (b)(1)(ii) has two components, which 

must be alleged and proved. Namely, the petitioner 

must establish that: 1) “the facts upon which the 
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claim was predicated were unknown” and 2) “could 

not have been ascertained by the exercise of due 

diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis 

added). 

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in 

original). 

Similar to his governmental interference claim, Appellant alleges that 

the Alleyne decision constitutes a newly discovered fact. Appellant’s Brief 

at 10. It is well settled, however, that a judicial decision is not a “fact” for 

purposes of satisfying the newly discovered facts exception to the PCRA 

time-bar. Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011); accord 

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

denied, 81 A.3d 75 (Pa. 2013). Accordingly, as Alleyne is not a fact, and 

Appellant has not pled or proven any other newly discovered facts that 

would meet the time-bar exception in Section 9545(b)(1)(ii), his PCRA 

petition is untimely on this basis.3 See Watts, supra.

____________________________________________

3 We note that Appellant does not invoke the time-bar exception in Section 

9545(b)(1)(iii), the newly recognized constitutional right exception. Even if 

he did, his claim would fail because this court has held that Alleyne does 

not satisfy the new constitutional right exception to the time-bar. 

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014). 

Moreover, neither our Supreme Court nor the United States Supreme Court 

has held that Alleyne is retroactive to cases on collateral review. See 42 

Pa.C.S.A. § 9545(b)(1)(iii) (providing a time-bar exception for “a 

constitutional right that was recognized by the Supreme Court of the United 

States or the Supreme Court of Pennsylvania ... and has been held by that 

court to apply retroactively[]”). 
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Based on the foregoing, the PCRA court properly denied Appellant’s 

second PCRA petition because it was untimely filed.4 Accordingly, we affirm 

the PCRA court’s July 23, 2014 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2015

____________________________________________

4 Even if Appellant were able to overcome the PCRA time-bar, his claim 

would fail because this Court has held that Alleyne does not apply 

retroactively on collateral review to judgments of sentence that became final 

before Alleyne was announced. Commonwealth v. Riggle, --- A.3d ---, 

2015 WL 4094427, at *4-6 (Pa. Super. 2015) (noting Alleyne applies 

retroactively to cases pending on direct appeal, but concluding that Alleyne

did not announce a substantive or watershed constitutional procedural rule, 

and therefore, is not entitled to retroactive application in the PCRA setting). 

As Appellant’s sentence became final on August 21, 2009, before Alleyne

was announced on June 17, 2013, he is not entitled to the retroactive 

application of Alleyne on collateral review. See id. at *6.