J-S27015-17

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

SHAWN DUELL

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2467 EDA 2016

Appeal from the PCRA Order July 11, 2016

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0002216-2012

BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 02, 2017

Appellant, Shawn Duell, appeals from the order of the Chester County 

Court of Common Pleas, which dismissed as untimely his second petition 

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. On July 3, 2013, Appellant entered a negotiated guilty plea to 

robbery and persons not to possess firearms; the court sentenced Appellant 

to 71⁄2 to 15 years’ imprisonment, which included a mandatory minimum 

sentence of 5 years’ imprisonment per 42 Pa.C.S.A. § 9712(a) (offenses 

committed with firearms), plus 5 years’ probation. Appellant did not file a 

direct appeal. Appellant filed his first PCRA petition on September 29, 2014, 

claiming, inter alia, that his sentence was illegal under Alleyne v. United 

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (decided 
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June 17, 2013). The court appointed counsel, who filed a motion to 

withdraw and a no-merit letter on November 5, 2014. The court issued 

notice per Pa.R.Crim.P. 907 on December 2, 2014; Appellant did not 

respond. On January 7, 2015, the court denied PCRA relief and allowed 

counsel to withdraw. Appellant did not seek further review. 

Appellant filed the current pro se PCRA petition on June 1, 2016, for 

relief under Alleyne, claiming both trial counsel and PCRA counsel were 

ineffective, based on their failure to pursue his Alleyne claim. The court 

issued Rule 907 notice on June 8, 2016; Appellant responded on June 27, 

2016. On July 11, 2016, the court denied PCRA relief. Appellant timely filed

a pro se notice of appeal on August 3, 2016. The court ordered Appellant to 

file a concise statement per Pa.R.A.P. 1925(b); Appellant timely complied.

The timeliness of a PCRA petition is a jurisdictional requisite. 

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA 

petition, including a second or subsequent petition, shall be filed within one 

year of the date the underlying judgment of sentence becomes final. 42 

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final “at the 

conclusion of direct review, including discretionary 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.” 42 Pa.C.S.A. § 9545(b)(3). The 

statutory exceptions to the PCRA time-bar allow for very limited 

circumstances which excuse the late filing of a petition; a petitioner 
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asserting a timeliness exception must file a petition within 60 days of when 

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2). 

To invoke the “new facts” exception, the petitioner must plead and 

prove: “[T]he facts upon which the claim is predicated were unknown to the 

petitioner and could not have been ascertained by the exercise of due 

diligence[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii). The “new constitutional right” 

exception requires the petitioner to plead and prove: “[T]he 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.” 42 Pa.C.S.A. § 9545(b)(1)(iii). 

Instantly, Appellant’s judgment of sentence became final on or about 

August 2, 2013, upon expiration of the 30 days for filing a direct appeal with 

this Court. See Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA 

petition on June 1, 2016, which is patently untimely. See 42 Pa.C.S.A. § 

9545(b)(1). See also Commonwealth v. Taylor, 65 A.3d 462, 465 

(Pa.Super. 2013) (stating issues regarding legality of sentence must be 

presented in timely PCRA petition). To the extent Appellant attempts to 

invoke the “new facts” exception, the Alleyne decision and its Pennsylvania 

progeny do not constitute “new facts” under Section 9545(b)(1)(ii). See 

Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011) (stating judicial 

determinations are not “facts” within meaning of Section 9545(b)(1)(ii)). 
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Moreover, the “new constitutional right” exception provides no benefit to 

Appellant because Alleyne does not serve as an exception to the PCRA 

time-bar. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) 

(holding that even if Alleyne announced new constitutional right, neither 

our Supreme Court nor U.S. Supreme Court has held that Alleyne applies 

retroactively, which is fatal to appellant’s attempt to satisfy “new 

constitutional right” exception to timeliness requirements of PCRA).1 

Therefore, Appellant’s petition remains time-barred, and the PCRA court 

lacked jurisdiction to review it. Accordingly, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/2/2017

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1 Appellant also failed the 60-day rule. See 42 Pa.C.S.A. § 9545(b)(2). 

Further, Appellant’s ineffective assistance of prior counsel claims do not 

qualify as exceptions to the statutory timeliness requirement. See 

Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000).