J-S64001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROGER LEON BARLOW

Appellant No. 328 EDA 2016

Appeal from the PCRA Order Entered December 17, 2015

In the Court of Common Pleas of Chester County

Criminal Division at No: CP-15-CR-0001166-2009

BEFORE: STABILE, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2016

Appellant, Roger Leon Barlow, appeals pro se from the December 17, 

2015 order dismissing his petition pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm. 

On September 17, 2010, Appellant pled guilty to eight counts of arson 

and one count of criminal mischief.1 On that same date, the trial court 

imposed an aggregate 121⁄2 to 25 years or incarceration followed by ten 

years of probation. Appellant did not file a direct appeal. 

Appellant filed the instant PCRA petition on July 21, 2015, well over 

three years after his judgment of sentence became final. The PCRA court 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

 18 Pa.C.S.A. §§ 3301 and 3304, respectively. 
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appointed counsel on September 14, 2015. On October 22, 2015, counsel 

filed a no merit letter and petition to withdraw pursuant to Commonwealth 

v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 479 

A.2d 568 (Pa. Super. 1984) (en banc). On November 12, 2015, the PCRA 

court filed notice of its intent to dismiss the petition without a hearing 

pursuant to Pa.R.Crim.P. 920. Appellant responded on December 1, 2015. 

On December 17, 2015, the PCRA court entered an order dismissing 

Appellant’s petition and permitting counsel to withdraw. This timely appeal 

followed. 

The PCRA requires any petition thereunder to be filed within one year 

of the date on which his judgment of sentence becomes final. 42 Pa.C.S.A. 

§ 9545(b)(1); Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 

2010). If, as is presently the case, the petition is facially untimely, the 

petitioner must plead and prove the applicability of one of the three 

statutory exceptions to the one-year time bar. Id. Failure to do so deprives 

the PCRA court of jurisdiction. This is true even if the petition challenges the 

legality of the petitioner’s sentence. Commonwealth v. Fahy, 737 A.2d 

214, 223 (Pa. 1999). 

One exception to the PCRA’s one-year time bar is the recognition, by 

the United States Supreme Court, of a new constitutional right that is held 

by that Court to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(iii). To this 

end, Appellant argues his sentence is illegal pursuant to Alleyne v. United 
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States, 133 S. Ct. 2151 (2013) and Commonwealth v. Hopkins, 117 A.3d 

247 (Pa. 2015). 

In Alleyne, the United States Supreme Court held that any fact, other 

than a prior conviction, triggering a mandatory minimum sentence must be 

found beyond a reasonable doubt by a jury. Alleyne, 133 S. Ct. at 2163-

64. In Hopkins, the Pennsylvania Supreme Court relied on Alleyne to 

strike down the Drug Free School Zones Act, 18 Pa.C.S.A. § 6317. Section 

6317 imposed mandatory minimum sentences for certain controlled 

substance offenses that occurred within a specified distance of a school or 

playground. 18 Pa.C.S.A. § 6317. 

As noted above, Appellant did not file a direct appeal and his judgment 

of sentence became final in October of 2010. The Pennsylvania Supreme 

Court has held that Alleyne does not apply retroactively to cases pending 

on collateral review. Commonwealth v. Washington, 142 A.3d 810, 820 

(Pa. 2016). We have held that Alleyne applies only to cases pending on 

direct appeal as of June 17, 2013, the date the United States Supreme Court 

handed down the opinion in Alleyne. Commonwealth v. Newman, 99 

A.3d 86, 90 (Pa. Super. 2014). Alleyne therefore does not apply to 

Appellant’s case, and he cannot rely on it to meet the requirements of 

§ 9545(b)(1)(iii). 

Appellant argues that his petition is timely under Hopkins because he 

filed it within 60 days of that decision, in accordance with § 9545(b)(2) of 
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the PCRA. Hopkins does not apply because Appellant was not sentenced 

under § 6317. Indeed, the record of the sentencing proceeding does not 

confirm that Appellant received any mandatory minimum sentence. 

Appellant therefore did not salvage the timeliness of his petition by filing it 

within 60 days of the Hopkins decision. 

In summary, Appellant’s PCRA petition is facially untimely and he has 

failed to plead and prove the applicability of any timeliness exception. We 

therefore affirm the PCRA court’s order. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2016