J-S55015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH ALLEN GURNEE,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 272 MDA 2016

Appeal from the PCRA Order January 14, 2016

In the Court of Common Pleas of Bradford County

Criminal Division at No(s): CP-08-CR-0000575-1994

BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 17, 2017

Appellant, Kenneth Allen Gurnee, appeals from the Order entered on 

January 14, 2016, in the Court of Common Pleas of Bradford County 

dismissing as untimely his second Petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful 

review, we affirm on the basis that Appellant’s PCRA Petition is untimely and 

this Court, thus, lacks jurisdiction to review the Petition.

Appellant challenges the legality of the sentence imposed in 

connection with his convictions arising from his 1994 kidnapping and rape of 

a child. On April 13, 1995, a jury convicted Appellant of Kidnapping, 

Terroristic Threats, two counts of Indecent Assault, two counts of 

Aggravated Indecent Assault, three counts of Involuntary Deviate Sexual 

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* Retired Senior Judge assigned to the Superior Court.
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Intercourse, and three counts of Rape.1 On June 1, 1995, the trial court 

sentenced Appellant to an aggregate term of 20 to 56 years’ incarceration. 

Although Appellant filed a direct appeal, this Court quashed it as untimely. 

Commonwealth v. Gurnee, No. 826 Harrisburg 1995 (Pa. Super. filed 

January 10, 1996) (per curiam). Thus, Appellant’s Judgment of Sentence 

became final on July 3, 1995.2 See Commonwealth v. Valentine, 928 

A.2d 346, 349 (Pa. Super. 2007) (where petitioner filed untimely notice of 

appeal and his appeal was dismissed, his judgment of sentence became final 

upon expiration of time for taking the direct appeal by filing a timely notice 

of appeal).

On March 19, 2001, Appellant filed a pro se PCRA Petition, his first,

which the trial court denied after appointing counsel. This Court affirmed. 

Commonwealth v. Gurnee, No. 1194 MDA 2001 (Pa. Super. filed 

December 17, 2002) (unpublished memorandum).

On September 8, 2015, Appellant filed the instant PCRA Petition, his 

second, claiming his sentence is illegal pursuant to Alleyne v. United 

States, 133 S.Ct. 2151 (2013), and Commonwealth v. Hopkins, 117 A.3d 

247 (Pa. 2015). After providing notice to Appellant pursuant to Pa.R.Crim.P. 

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1 18 Pa.C.S. § 2901; 18 Pa.C.S. § 2706; 18 Pa.C.S. § 3126; 18 Pa.C.S. § 

3125; 18 Pa.C.S. § 3123; and 18 Pa.C.S. § 3121, respectively.

2 July 1, 1995, was a Saturday. See 1 Pa.C.S. § 1908.
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907, the PCRA court dismissed Appellant’s Petition as untimely on January 

14, 2016.

Appellant filed a pro se Notice of Appeal on February 11, 2016. Both 

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant presents three issues for our review:

I. Did the [PCRA] [c]ourt err in denying the instant [PCRA] 

Petition when it stated that the Supreme Court of Pennsylvania’s 

ruling in [Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 

2015)] does not offer retrospective relief when through the “void

ab initio” doctrine, [Hopkins] retains implied retroactivity since 

the ruling voids the statutes from their inception, thereby they 

did not exist at the time [Appellant] was sentenced?

II. Did the [PCRA] [c]ourt err in denying the instant [PCRA] 

Petition when it failed to hear the merits of [Appellant’s] case, 

when he filed the instant [PCRA] timely by filing within 60 days 

of the date he found his sentence to be illegal under the 

Supreme Court of Pennsylvania’s ruling in [Hopkins]?

III. Did the [PCRA] [c]ourt err in denying the instant [PCRA] 

Petition when [Appellant] raised a legality of sentence claim 

which through the Court’s inherent power always retains the 

jurisdiction to correct?

Appellant’s Brief at 4.

We review the denial of a PCRA Petition to determine whether the 

record supports the PCRA court’s findings and whether its Order is otherwise 

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). There is no right to a PCRA hearing; a hearing is unnecessary where 

the PCRA court can determine from the record that there are no genuine 

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. 

Super. 2008).
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Before addressing the merits of Appellant’s claims, we must first 

determine whether we have jurisdiction to entertain the underlying PCRA 

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) 

(explaining that the timeliness of a PCRA Petition is a jurisdictional 

requisite).

Under the PCRA, any Petition “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes 

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes 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. § 

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature, 

and a court may not address the merits of the issues raised if the PCRA 

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 

1093 (Pa. 2010). Any second or subsequent petition, such as the instant 

PCRA Petition, filed after the effective date of the 1995 amendments to the 

PCRA “is governed by the PCRA as thus amended.” Commonwealth v. 

Yarris, 731 A.2d 581, 586 (Pa. 1999).

Here, Appellant’s Judgment of Sentence became final on July 3, 1995, 

upon expiration of the time to file a direct appeal. See 42 Pa.C.S. § 

9545(b)(3); Pa.R.A.P. 903(a); Pa.R.Crim.P. 720(A)(3); Valentine, supra at 

349. Appellant’s Judgment of Sentence became final before the effective 
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date of the 1995 amendments to the PCRA, which included a grace period of 

one year for petitioners like Appellant. See Commonwealth v. Thomas, 

718 A.2d 326, 329 (Pa. Super. 1998). However, the grace period applied 

only to PCRA petitions filed by January 16, 1997. Id. See also 42 Pa.C.S. 

§ 9545(b)(1). Appellant filed this PCRA Petition on September 8, 2015, 

more than 18 years after the PCRA deadline, and more than 20 years after 

his Judgment of Sentence became final. Appellant’s Petition is, thus, facially 

untimely.

Pennsylvania courts may consider an untimely PCRA petition, however, 

if the appellant pleads and proves one of the three exceptions set forth in 42 

Pa.C.S. § 9545(b), which provides the following:

(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 

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. 
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(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. § 9545(b)(1)-(2). See, e.g., Commonwealth v. Lark, 746 

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the 

claim had been timely raised within 60-day timeframe).

Here, in relying on Alleyne and Hopkins, supra, Appellant attempts 

to invoke the “new fact” timeliness exception provided in Section 

9545(b)(1)(ii) to challenge the legality of his sentence, averring that the 

court applied the mandatory minimums provided in 42 Pa.C.S. § 9718. 

Appellant claims that he filed his Petition within 60 days of learning of 

Hopkins, supra, in the prison law library. Appellant’s Brief at 17.

Although a legality of sentence claim cannot be waived, it must be 

raised in a timely PCRA Petition. Commonwealth v. Jones, 932 A.2d 179, 

182 (Pa. Super. 2007); 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy, 

737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always 

subject to review within the PCRA, claims must still first satisfy the PCRA’s 

time limits or one of the exceptions thereto”).

Our Supreme Court has expressly held that “subsequent decisional law 

does not amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii)[.]” 

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). See also 

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

“the notion that judicial decisions can be considered newly-discovered facts 
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which would invoke the protections afforded by [S]ection 9545(b)(1)(ii).”). 

Given this binding precedent, Appellant’s argument merits no relief.

We also reject Appellant’s attempt to circumvent the timeliness 

requirements and the PCRA framework by arguing that the PCRA time 

restrictions cannot apply to sentences that were later deemed 

unconstitutional as they are “void ab initio.” Appellant’s Brief at 18. This 

argument ignores clear precedent, and effectively asks this Court to ignore 

Hopkins, supra, and Washington, infra, and conclude Alleyne

announced a substantive rule that applies retroactively. See also 

Commonwealth v. Ciccone, 152 A.3d 1004, 1007-08 (Pa. Super. 2016) 

(en banc) (rejecting similar void ab initio argument and holding that “we 

likewise reject the position that a mandatory sentencing statute rendered 

illegal by Alleyne is void ab initio thereby rendering any sentence imposed 

thereunder invalid.”).

Even if Appellant had attempted to invoke the timeliness exception 

under Section 9545(b)(1)(iii), Appellant’s claim that he filed his PCRA 

Petition within 60 days of the decision in Hopkins, supra, would merit no 

relief. The United States Supreme Court decided Alleyne on June 17, 2013. 

In order to invoke the “constitutional right” exception under 42 Pa.C.S. § 

9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days 
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of June 17, 2013.3 See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. 

Super. 2007) (stating that the 60-day period begins to run upon the date of 

the underlying judicial decision). Appellant filed this PCRA Petition on 

September 8, 2015, well after 60 days of the Alleyne decision.

Moreover, our Supreme Court has recently reiterated that Alleyne

does not apply retroactively on post-conviction collateral review. See

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

Accordingly, the PCRA court properly concluded that Appellant failed to 

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. § 

9545(b)(1), and properly dismissed Appellant’s Petition as untimely. We, 

thus, affirm the denial of PCRA relief.

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3 This Court applied Alleyne in Hopkins, supra, on June 15, 2015. 

However, this Court recently reiterated that “the Hopkins decision did not 

announce a ‘new rule,’ [for purposes of 42 Pa.C.S. § 9545(b)(1)(iii)] but 

rather simply assessed the validity of Section 6317 under Alleyne and 

concluded that particular mandatory minimum sentencing statute was 

unconstitutional.” Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa. 

Super. 2016). Accordingly, Appellant’s attempt to rely on Hopkins to 

calculate the 60-day period is misplaced.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/17/2017