J-S33008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.

WILLIE MILES Appellant No. 843 WDA 2015

Appeal from the PCRA Order April 14, 2015 in the Court of Common Pleas of Allegheny County Cr iminal Division

at No(s): CP-02-CR-0003921-2011 BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, * J. MEMORANDUM BY FITZGERALD, J.: FILED JUNE 17, 2016 Appellant, Willie Miles, appeals pro se from the order of the Allegheny County Court of Common Pleas dismissing his second Post Conviction Relief

Act 1 (“PCRA”) petition, entitled “Motion to Vacate Ille gal Sentence,” 2 as

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 We note that

[t]he PCRA provides: The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis . This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in priorJ-S33008-16

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untimely. Appellant contends that his February 21, 2012 sentence following his convictions of possession of a controlled subst ance with intent to deliver 3 (“PWID”), possession of a controlled substance, 4 and possession of drug paraphernalia 5 is illegal under Alleyne v. United States , 113 S. Ct. 2151 (2013). 6 We affirm. Appellant was sentenced on February 21, 2012, to f ive to ten years’ imprisonment for PWID with no further penalty at th e remaining counts. On February 26, 2013, this Court affirmed the judgment of sentence.

Commonwealth v. Miles , 446 WDA 2012 (unpublished memorandum) (Pa.

proceedings or to provide relief from collateral consequences of a criminal conviction. 42 [Pa.C.S.] § 9542. Accordingly, if the PCRA offe rs a remedy for an appellant’s claim, it is the sole ave nue of relief and the PCRA time limitations apply. Commonwealth v. Taylor , 65 A.3d 462, 466 (Pa. Super. 2013). Commonwealth v. Wyatt , 115 A.3d 876, 879 (Pa. Super. 2015). The PCRA “provides for an action by which persons convi cted of crimes they did not commit and persons serving illegal sentences ma y obtain collateral relief.” Commonwealth v. Jackson , 30 A.3d 516, 518 (Pa. Super. 2011) (citing 42 Pa.C.S. § 9542). Therefore, the PCRA co urt properly treated Appellant’s “Motion to Vacate Illegal Sentence” as a PCRA petition. See Wyatt , 115 A.3d at 879; Jackson , 30 A.3d at 518.

3 35 P.S. § 780-113(a)(30).

4 35 P.S. § 780-113(a)(16).

5 35 P.S. § 780-113(a)(32).

6 We note that Alleyne was decided on June 17, 2013.J-S33008-16

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Super. Feb. 26, 2013). On March 26, 2013, Appellan t filed a pro se PCRA petition. Counsel was appointed and filed a motion to withdraw on June 17, 2013. The PCRA court granted the motion to withdra w. On July 24, 2013, the PCRA petition was denied. On March 23, 2015, A ppellant filed the

instant pro s e “Motion to Vacate Illegal Sentence.” On March 27 , 2015, the PCRA court filed a notice of intent to dismiss purs uant to Pa.R.Crim.P. 907. On April 6, 2015, Appellant filed a “Written Respon se” to the Rule 907

notice. 7 On April 14, 2015, the court dismissed the PCRA p etition. This timely appeal followed. 8 Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant raises the following issues for our revi ew:

1. Is Appellant’s sentence illegal and unconstituti onal pursuant to recent decisions declaring 18 Pa.C.S.A. § 7508 unconstitutional?

7 We note that the written response was docketed on April 16, 2015. Appellant’s certificate of service is dated April 6 , 2015.

8 In the instant case, the notice of appeal is docke ted as filed on May 21, 2015, beyond the thirty day appeal period from the April 14, 2015, order. See Pa.R.A.P. 903(a); Commonwealth v. Coolbaugh , 770 A.2d 788, 791 (Pa. Super. 2001) (noting “questions of jurisdictio n may be raised sua sponte ”) (citation omitted). However, pro se Appellant is incarcerated. The notice of appeal is dated by Appellant as having be en served on May 12, 2015, and Appellant attached an envelope post-marke d May 14, 2015. It is well settled the “prisoner mailbox rule provides th at 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). Thus, we adopt May 12, 2015 as the date of filing and conclude the present appeal is timely. See id. at 40.J-S33008-16

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- 2. Since Appellant’s sentence is unconstitutional i s Appellant entitled to resentencing in that his sent ence is illegal? Appellant’s Brief at 4. When analyzing the dismissal of a PCRA petition, “a n appellate court’s scope of review is limited by the PCRA’s parameters ; since most PCRA appeals involve mixed questions of fact and law, th e 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) (citation omitted). Before examining the merits of Appellant’s claims, we consider whether the PCRA court had jurisdiction to entertai n the underlying PCRA petition. The timeliness of a PCRA petition is a t hreshold 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).

To be timely, a PCRA petition must be filed within one year of the date that the petitioner’s judgment of sente nce became final, unless the petition alleges and the p etitioner proves one or more of the following statutory excep tions: (i) the failure to raise the claim previously was t he 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 w ere unknown to the petitioner and could not have been ascertained by the exercise of due diligence; orJ-S33008-16

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- (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 be en held by that court to apply retroactively. 42 Pa.C.S. § 9545(b)(1). We emphasize that it is the petitioner who bears th e burden to allege and prove that one of the timeline ss exceptions applies. In addition, a petition invoki ng any of the timeliness exceptions must be filed within 60 d ays of the date the claim first could have been presented. 42 Pa.C.S. § 9545(b)(2). A petitioner fails to satisf y the 60– day requirement of Section 9545(b) if he or she fai ls to explain why, with the exercise of due diligence, th e 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 a ny 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) (footnote omitted). Appellant was sentenced on February 21, 2012. Thi s Court affirmed his judgment of sentence on February 26, 2013. App ellant did not seek discretionary review in the Supreme Court of Pennsy lvania. Thus, his judgment of sentence became final on March 28, 2013

. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment becomes final at the conclusion of direct review, including discretionary review in the Supre me Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of timeJ-S33008-16

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for seeking the review[ ]”). Appellant generally h ad until March 28, 2014, to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Therefore, because Appellant filed the instant PCRA petition on March 23, 2015, 9 his petition is untimely. 10 Appellant avers that he is serving an illegal sent ence pursuant to Alleyne , 11 and therefore his sentence should be vacated. App ellant’s Brief at 8, 11. He contends his mandatory minimum senten ce is unconstitutional

under Alleyne

. Id. at 8. We find no relief is due.

In Commonwealth v. Ruiz , 131 A.3d 54 (Pa. Super. 2015), this Court opined:

[A]n Alleyne claim is a non-waivable challenge to the legality of sentence. Such a claim may be raised o n direct appeal, or in a timely filed PCRA petition. See 42 Pa.C.S. § 9542 (“persons serving illegal sentences may obta in collateral relief”); Commonwealth v. Hockenberry , [ ] 689 A.2d 283, 288 [(Pa. Super.] 1997) (“Issues rela ting to the legality of sentence cannot be waived and are cognizable under the PCRA”; addressing challenge to

9 The PCRA court erroneously states that Appellant’s “Motion to Vacate Illegal Sentence” was filed on December 22, 2014. See PCRA Ct. Op., 11/3/15, at 2. The “Motion to Vacate Illegal Sente nce” was filed with Appellant’s Application to Proceed In Forma Pauperis on March 23, 2015. The docket does not indicate any activity in the in stant case in 2014.

10 We note that Appellant does not argue that any of the timeliness exceptions apply in the instant case. See Marshall , 947 A.2d at 719-20.

11 The United States Supreme Court in Alleyne held that “[a]ny fact that, by law, increases the penalty for a crime is an ‘eleme nt’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne , 133 S. Ct. at 2155.J-S33008-16

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- imposition of a mandatory minimum under 18 Pa.C.S. § 7508(a)). Indeed, in [ Commonwealth v. ] Newman [99 A.3d 86 (Pa. Super. 2014) ( en banc )] the en banc panel recognized that Alleyne constituted a “new rule” that “applies to all criminal cases still pending on direct review .” Newman , [ ] 99 A.3d at 90 (emphasis supplied), quoting Schriro v. Summerlin , [ ] 124 S. Ct. 2519, [ ] (2004).

Id. at 60 (some emphasis added). 12 Moreover,

[i]t is also settled that Alleyne does not invalidate a mandatory minimum sentence when presented in an untimely PCRA petition. See Commonwealth v. Miller , 102 A.3d 988 (Pa. Super. 2014). In concluding Alleyne does not satisfy the new retroactive constitutional right exception to the PCRA’s one year time bar, 42 Pa.C. S. § 9545(b)(1)(iii), the Miller Court explained: Even assuming that Alleyne did announce a new constitutional right, neither our Supreme Court, no r the United States Supreme Court has held that Alleyne is to be applied retroactively to cases in which the judgment of sentence had become final . . . . This Court has recognized that a new rule of constitutional law is applied retroactively to c ases on collateral review only if the United States Supreme Court or our Supreme Court specifically holds it to be retroactively applicable to those ca ses. Id. at 995 (citations omitted) (emphasis supplied). Furthermore, this Court also recently declined to g ive Alleyne retroactive effect to cases on timely collateral

12 This Court has determined that the following cases be considered by the Court en banc : Commonwealth v. Aybar , 1224 MDA 2014, Commonwealth v. Ciccone , 3114 EDA 2014, and Commonwealth v. Haskins , 1815 MDA 2014. The en banc Court will address the issue of “[w]hether the PCRA petitioner is entitled to relie f when he raises, in a timely PCRA petition , a claim that his sentence is illegal pursuant to Alleyne . . . and Commonwealth v. Newman , 99 A. 3d 86 (Pa. Super. 2014) ( en banc )”.J-S33008-16

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- review when the defendant’s judgment of sentence wa s finalized before Alleyne was decided. See Commonwealth v. Riggle , 119 A.3d 1058 (Pa. Super. 2015).

Id. at 58. Appellant’s judgment of sentence was final on Marc h 28, 2013. Thus, his PCRA petition, filed on March 23, 2015, is faci ally untimely. Alleyne does not apply retroactively to an untimely PCRA. See Ruiz , 131 A.3d at 60. Appellant did not plead and prove any exceptio n to the PCRA’s timeliness requirement. See Marshall , 947 A.2d at 719-20; Lawson , 90 A.3d at 5. Therefore, the PCRA court lacked jurisd iction to consider the legality of Appellant’s sentence. See Davis , 86 A.3d at 887. The PCRA court did not err in dismissing his PCRA petition a s untimely. See Pitts , 981 A.2d at 878; Marshall , 947 A.2d at 719-20.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/17/2016