J-S07040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD GARDNER,

Appellant No. 817 MDA 2015

Appeal from the PCRA Order April 14, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-2315-2012

CP-36-CR-2319-2012

CP-36-CR-2323-2012

BEFORE: BOWES, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 11, 2016

Appellant, Edward Gardner, appeals pro se from the order of the 

Lancaster County Court of Common Pleas dismissing his second Post 

Conviction Relief Act1(“PCRA”) petition as untimely. Appellant contends his 

July 30, 2013 sentence for possession with intent to deliver a controlled 

substance2is illegal under Alleyne v. United States, 133 S. Ct. 2151 

(2013). We affirm.

The following procedural history is relevant to this appeal. On July 30, 

2013, Appellant entered into a negotiated plea agreement. N.T. Sentencing 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 35 P.S. § 780-113(a)(30).
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Hr’g, 7/30/13, at 2. He was charged on three informations with three 

violations of the Controlled Substance Act, specifically delivery of cocaine. 

Id. at 3. He was sentenced to five to ten years’ imprisonment on each 

count to run concurrently.3 Id. at 2-3. He did not take a direct appeal.

On October 14, 2014, Appellant filed a pro se PCRA petition. On 

October 15, 2014, counsel was appointed to represent Appellant. On 

November 21, 2014, counsel filed a motion to withdraw. On December 5, 

2014, the PCRA court filed a Pa.R.Crim.P. 907 notice of intent to dismiss the 

petition, providing Appellant with twenty days to file a response. Appellant 

did not file a response and on January 2, 2015, the court dismissed the 

PCRA petition. Appellant did not file a direct appeal.

On March 27, 2015, pro se Appellant filed his second PCRA petition. 

The PCRA court dismissed the petition as untimely on April 14, 2015. This 

timely appeal followed. Appellant filed a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal4and the PCRA court filed a responsive 

opinion.

 

3 The sentence included the application of the mandatory minimum sentence 

for delivery based upon the weight of the cocaine. See 18 Pa.C.S. § 7508.

4 Appellant raised the following issues in his Rule 1925(b) statement, 

reproduced verbatim:

1. Did the trial court err and abused its discretion, when 

Petitioner suffers from mental incompetence which 

satisfies the time-bar requirements of 42 Pa.C.S.A. § 

9545(b)(1)(ii)?
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Appellant raises the following issues, reproduced verbatim, for our 

review:

1.(a) Being that the Pennsylvania Constitution Article 1 

Section § 11 states one has a right to be heard did the 

Trial Court err in waiving Appellant’s PCRA without a 

hearing?

(b) Being that a trial court never relinquish their 

jurisdiction to correct an illegal sentence, did the trial court 

err in not correcting [A]ppellant’s now illegal 

unconstitutional mandatory minimum sentence?

Appellant’s Brief at 6.5

 

2. Did the trial court err and abused its discretion by 

denying Petitioner’s PCRA, because Alleyne is a 

retroactive case and applies to Petitioner as a substantive 

rule?

Appellant’s 1925(b) Concise Statement of Matters complained of, 5/7/15, at 

1-2. Appellant did not raise issue number one in his brief and therefore it is 

abandoned on appeal. See Commonwealth v. Dunphy, 20 A.3d 1215, 

1218 n.2 (Pa. Super. 2011) (holding claims raised in Rule 1925(b) statement 

but not identified in statement of questions presented or developed in 

argument section of brief abandoned on appeal).

5 We note Appellant “contends that Trial Courts never relinquish their 

jurisdiction to correct an illegal sentence.” Appellant’s Brief at 9. However, 

Appellant contradicts this averment in his brief and states “[a] challenge to 

the legality of the sentence may be raised as a matter of right, is nonwaivable, and may be entertained so long as the reviewing Court has 

jurisdiction.” Id. at 14-15. Appellant acknowledges that “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).” Id. at 18. Appellant again 

cites Sesky for that proposition. Id. at 19. He states that “[a] challenge to 

the legality of a sentence may be entertained as long as the reviewing Court 

has jurisdiction.” Id. at 20. 
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When analyzing the dismissal of a PCRA petition, “an appellate court’s 

scope of review is limited by the PCRA’s parameters; since most PCRA 

appeals involve mixed questions of fact and law, the standard of review is 

whether the PCRA court’s findings are supported by the record and free of 

legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). 

As a prefatory matter, we consider whether the instant PCRA petition 

is timely. The timeliness of a PCRA petition is a threshold question that 

implicates the jurisdiction of a court to consider the merits of the relief 

requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014). 

Although a legality of sentence claim cannot be “waived,” the claim must be 

presented in a timely PCRA petition to obtain post-conviction collateral 

relief. Seskey, 86 A.3d at 241. “The PCRA’s time restrictions are 

jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this 

Court nor the trial court has jurisdiction over the petition. Without 

jurisdiction, we simply do not have the legal authority to address the 

substantive claims.” Id.

We . . . turn to the time limits imposed by the PCRA, 

as they implicate our jurisdiction to address any and all of 

[an a]ppellant’s claims. To be timely, a PCRA petition 

must be filed within one year of the date that the 

petitioner’s judgment of sentence became final, unless the 

petition alleges and the petitioner proves one or more of 

the following statutory exceptions:

(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 
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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.

42 Pa.C.S. § 9545(b)(1).

We emphasize that it is the petitioner who bears the 

burden to allege and prove that one of the timeliness 

exceptions applies. In addition, a petition invoking any of 

the timeliness exceptions must be filed within 60 days of 

the date the claim first could have been presented. 42 

Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–

day requirement of Section 9545(b) if he or she fails to 

explain why, with the exercise of due diligence, the claim 

could not have been filed earlier.

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some 

citations omitted).

“[A]n 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. § 9545] are met.” 

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014). Our Supreme 

Court has stated:

This Court has repeatedly stated that the PCRA timeliness 

requirements are jurisdictional in nature and, accordingly, 

a PCRA court cannot hear untimely PCRA petitions. In 

addition, we have noted that the PCRA confers no 

authority upon this Court to fashion ad hoc equitable 
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exceptions to the PCRA time-bar in addition to those 

exceptions expressly delineated in the Act. We have also 

recognized that the PCRA’s time restriction is 

constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations 

and quotation marks omitted).

Finally, we note:

A PCRA hearing is not a matter of right, and the PCRA 

court may decline to hold a hearing if there is no genuine 

issue concerning any material fact and the defendant is not 

entitled to relief as a matter of law.

Commonwealth v. Morrison, 878 A.2d 102, 109 (Pa. Super. 2005) (en 

banc).

Appellant was sentenced on July 30, 2013. He did not take a direct 

appeal, and thus his judgment of sentence became final thirty days 

thereafter, on August 29, 2013. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 

903(a). Appellant then generally had one year to file a PCRA petition. See 

42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one 

year of date judgment becomes final). Because Appellant filed his PCRA 

petition on March 27, 2015, it is petition is patently untimely. 

Therefore, we review whether his petition alleges and proves a 

timeliness exception. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Marshall, 947 

A.2d at 719-20; Lawson, 90 A.3d at 5. Appellant avers his sentence is 

unconstitutional based upon Alleyne. Appellant’s Brief at 11. He claims 

that “the ‘new rule’ of law established by Alleyne directly applies to [his] 
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claim of an illegal sentence . . . .” Id. Alleyne was decided on June 17, 

2013. The instant PCRA petition was filed on March 27, 2015. Appellant 

failed to meet the timeliness requirement of 42 Pa.C.S. § 9545(b)(2). 

Appellant did not plead and prove any exception to the PCRA’s 

timeliness requirement. See Marshall, 947 A.2d at 719-20; Lawson, 90 

A.3d at 5. The PCRA court did not err in dismissing his PCRA petition as 

untimely. See Pitts, 981 A.2d at 878; Marshall, 947 A.2d at 719-20. 

Thus, the court lacked jurisdiction to consider the legality of Appellant’s 

sentence. See Davis, 86 A.3d at 887; Seskey, 86 A.3d at 241. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/2016