J-S27011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DENNIS EUGENE LANE,

Appellant No. 1692 MDA 2015

Appeal from the Order Entered September 15, 2015

In the Court of Common Pleas of Fulton County

Criminal Division at No(s): CP-29-CR-0000001-2011

BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED JUNE 14, 2016

Appellant, Dennis Eugene Lane, appeals from the order denying as 

untimely his second petition for relief filed under the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 We affirm.

The PCRA court summarized the procedural history of this case as 

follows:

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1

In addition, Appellant has filed a “Motion to Quash Appellee’s Brief” raising, 

among other concerns, the fact that the Commonwealth filed its brief in an 

untimely manner. In a letter dated January 4, 2015, the office of the 

Superior Court Prothonotary notified the Commonwealth that its brief was 

due in this Court on or before January 28, 2016. When the Commonwealth 

failed to file its brief, the case was submitted to this panel for consideration 

on February 29, 2016. The Commonwealth then filed its brief with this 

Court on March 4, 2016. Accordingly, we grant Appellant’s “Motion to Quash 

Appellee’s Brief,” and we will not consider it in rendering our disposition.
J-S27011-16

- 2 -

On November 16, 2011, [Appellant] was charged with 

Rape, two counts of Involuntary Deviate Sexual Intercourse, 

Statutory Sexual Assault, two counts of Aggravated Indecent 

Assault, Indecent Exposure, Corruption of Minors, Unlawful 

Contact with a Minor, and two counts of Indecent Assault, for 

offenses he committed from September 2007 to November 

2010. [Appellant] entered a guilty plea on July 12, 2011, to 

Rape, Involuntary Deviate Sexual Intercourse, Statutory Sexual 

Assault, Corruption of Minors, Unlawful Contact with a Minor, and 

Indecent Assault. After several continuances, [Appellant] was 

sentenced on March 22, 2012 to 11 to 22 years in prison and 

was determined after a hearing to be a sexually violent predator 

[(“SVP”)]. [Appellant did not file a direct appeal.]

On March 23, 2013, [Appellant] filed his first pro se

Petition for Post Conviction Collateral Relief. He was appointed 

PCRA counsel on March 27, 2013. An Amended Post Conviction 

Collateral Relief Act Petition was filed on December 5, 2013. A 

hearing was held on the Petition on May 20, 2014. On June 4, 

2014, the [PCRA c]ourt entered an Order denying the Petition.

[Appellant] filed a pro se Notice of Appeal on July 3, 2014. 

After failing to file a concise statement pursuant to the Court 

Order of August 29, 2014, [Appellant’s] court appointed counsel 

was removed, and Shane Kope, Esq., was eventually appointed. 

Attorney Kope filed a concise statement on January 5, 2015. On 

January 15, 2015, the [PCRA c]ourt entered an Order and 

Opinion pursuant to Pa.R.A.P. 1925(a). On August 19, 2015, the 

Superior Court affirmed [the PCRA c]ourt’s denial of [Appellant’s] 

PCRA Petition.

On August 19, 2015, [Appellant] filed a second Petition for 

Post Conviction Collateral Relief.[2] On August 26, 2015, the 

[c]ourt entered an Order notifying [Appellant] of its intention to 

dismiss the Petition without a hearing. On September 4, 2015, 

[Appellant] filed a [pro se] Response to the Court’s Notice of 

Intent to Dismiss. By Order, on September 16, 2015, the Court 

dismissed [Appellant’s] second PCRA Petition as being untimely

____________________________________________

2 Appellant titled this document a “Second Petition for Post Conviction 

Collateral Relief, or Alternatively for Writ of Habeas Corpus.”
J-S27011-16

- 3 -

pursuant to 42 Pa.C.S. § 9545(b). On September 30, 2015, 

[Appellant] filed a Notice of Appeal to the Superior Court.

Opinion, 12/8/15, at 1-2 (footnotes omitted). Both Appellant and the PCRA 

court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review, which we 

reproduce verbatim:

QUESTION # 1

Did the Trial Court ERROR in dismissing Appellants 

“Second Petition for Post Conviction Collateral Relief, or 

alternately for Writ of Habeas Corpus” under Rule 907 as 

untimely?

QUESTION # 2

Is an unconstitutional facially void statute enforceable as 

terms of a plea agreement?

QUESTION # 3

Are the crimes of Corruption of Minors (18 Pa. C.S. 

§6301(a)(1) and Indecent Assault of person under 16 years of 

age (18 Pa. C.S. §3126(a)(8) lesser included offenses of Rape 

(18 Pa. C.S. §3121(a)(1) or ISDI (18 Pa. C.S. §3123(a)(7) or 

Statutory Sexual Assault (18 Pa. C.S. §3122.1) or Unlawful 

contact with minor (18 Pa. C.S. §631.8(a)(1)?

QUESTION # 4

Were the procedures utilized in the Appellants SVP hearing 

to determine Appellants SVP status unconstitutional?

QUESTION # 5

Was each of Appellants three counsel ineffective?

Appellant’s Brief at 3.

Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA 

court’s determination is free of legal error. Commonwealth v. Phillips, 31 
J-S27011-16

- 4 -

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001)).

Initially, we must determine whether this matter is properly before us. 

We begin by determining whether the PCRA court accurately considered 

Appellant’s petition to be a PCRA petition and to impose the applicable 

timeliness requirements.

The scope of the PCRA is explicitly defined as follows:

This subchapter provides for an action by which persons 

convicted of crimes they did not commit and persons serving 

illegal sentences may obtain collateral relief. 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 prior proceedings or to 

provide relief from collateral consequences of a criminal 

conviction.

42 Pa.C.S. § 9542 (emphasis added).

The plain language of the statute above demonstrates that the General 

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235 

(Pa. 2001) (emphases in original). Where a defendant’s claims “are 
J-S27011-16

- 5 -

cognizable under the PCRA, the common law and statutory remedies now 

subsumed by the PCRA are not separately available to the defendant.” Id. 

at 1235 (citations omitted). By its own language, and by judicial decisions 

interpreting such language, the PCRA provides the sole means for obtaining 

state collateral relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 

1999) (citations omitted). Thus, it is well settled that any collateral petition 

raising issues with respect to remedies offered under the PCRA will be 

considered to be a PCRA petition. Commonwealth v. Deaner, 779 A.2d 

578, 580 (Pa. Super. 2001).

The question then is whether the particular claims raised in Appellant’s 

petition are claims that were available to him under the PCRA. Upon review 

of the relevant law and Appellant’s petition, we are constrained to conclude 

that the PCRA court properly considered it to be a PCRA petition.

A PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time 

requirement is mandatory and jurisdictional in nature, and may not be 

ignored in order to reach the merits of the petition. Commonwealth v. 

Murray, 753 A.2d 201, 203 (Pa. 2000). 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).
J-S27011-16

- 6 -

However, an 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(b)(1)(i), (ii), 

and (iii), is met.3 A petition invoking one of these exceptions must be filed 

within sixty days of the date the claim could first have been presented. 42 

Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the 

PCRA’s one-year filing deadline, “the petitioner must plead and prove 

specific facts that demonstrate his claim was raised within the sixty-day time 

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

Our review of the record reflects that Appellant’s judgment of sentence 

became final on April 23, 2012, thirty days after the trial court imposed the 

____________________________________________

3

 The exceptions to the timeliness requirement are:

(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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
J-S27011-16

- 7 -

judgment of sentence and Appellant failed to file a direct appeal with this 

Court.4 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, in order to be 

timely under the PCRA, Appellant needed to file the Petition on or before 

April 23, 2013. Appellant did not file the Petition until August 19, 2015. 

Accordingly, the Petition is a patently untimely PCRA petition.

As previously stated, if a petitioner does not file a timely PCRA 

petition, his petition may nevertheless be received under any of the three 

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. § 

9545(b)(1). That burden necessarily entails an acknowledgment by the 

petitioner that the PCRA petition under review is untimely but one or more of 

the exceptions apply. Commonwealth v. Beasley, 741 A.2d 1258, 1261 

(Pa. 1999). If a petitioner asserts one of these exceptions, he must file his 

petition within sixty days of the date that the exception could be asserted. 

42 Pa.C.S. § 9545(b)(2). In addition, exceptions cannot be raised for the 

first time on appeal. Commonwealth v. Wharton, 886 A.2d 1120, 1126 

(Pa. 2005).

____________________________________________

4 We note that a direct appeal needed to be filed on or before Monday, April 

23, 2012, because April 21, 2012, was a Saturday. See 1 Pa.C.S. § 1908 

(stating that, for computations of time, whenever the last day of any such 

period shall fall on Saturday or Sunday, or a legal holiday, such day shall be 

omitted from the computation). See also Pa.R.A.P. 107; Pa.R.A.P. 903, 

note.
J-S27011-16

- 8 -

Our review of the record reflects that the Petition failed to specifically 

allege or prove that any of the exceptions apply. Petition, 8/19/15. The 

court of common pleas aptly addressed this shortcoming in its opinion filed 

pursuant to Pa.R.A.P. 1925(a) as follows:

[Appellant] does not allege that he meets any of the three 

exceptions to the time-bar found in 42 Pa.C.S. § 9545(b)(i-iii).

Opinion, 12/8/15, at 3. Upon review of the Petition, we likewise conclude 

that Appellant failed to allege in his pleading that any of the exceptions 

apply or that the Petition was presented within the applicable sixty-day time 

frame. Thus, the court of common pleas was without jurisdiction to grant 

relief in this matter and it properly dismissed Appellant’s PCRA petition as 

untimely.

In addition, in his memorandum in support of his PCRA petition, it 

appears that Appellant has ostensibly attempted to invoke the time-bar 

exception under section 9545(b)(1)(iii) by maintaining that his sentence is 

illegal and needs to be corrected by citing to Apprendi v. New Jersey, 530 

U.S. 466 (2000), Alleyne v. United States, 133 S.Ct. 2151 (2013), and 

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). 

Memorandum, 8/19/15, at 4-6. Thus, Appellant’s citations may be 

characterized as an attempt to assert the “new constitutional right” 

exception to the PCRA time-bar based on Apprendi, Alleyne, and 

Newman.
J-S27011-16

- 9 -

This Court has explained the rulings and impact of Apprendi, 

Alleyne, and Newman as follows:

In Alleyne, the Supreme Court held that the constitutional jury 

trial right requires any fact, other than a prior conviction, that 

triggers a mandatory minimum sentence to be proven beyond a 

reasonable doubt before the finder of fact. Alleyne is an 

application of the Court’s prior pronouncement in Apprendi v. 

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 

(2000), which ruled that any fact that increases a maximum 

sentence must be found by the factfinder beyond a reasonable 

doubt or admitted by the defendant during his guilty plea. In 

Alleyne, the United States Supreme Court expressly overruled 

Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 

L.Ed.2d 524 (2002), which held that a fact that involves a 

mandatory minimum sentence does not implicate jury trial 

rights. Alleyne also implicitly abrogated McMillan v. 

Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 

(1986), which withstood an Apprendi attack in the Harris 

decision.

In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (relying upon Commonwealth v. Watley, 81 A.3d 108, 

118 (Pa. Super. 2013) (en banc)), we noted that Alleyne will be 

applied to cases pending on direct appeal when Alleyne was 

issued. 

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015) 

(emphasis added).

While this Court has held that Alleyne applies retroactively to cases 

that were on direct appeal when Alleyne was issued, we have declined to 

construe that decision as applying retroactively to cases during PCRA review.

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 [Commonwealth v. Miller, 

102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:
J-S27011-16

- 10 -

Even assuming that Alleyne did announce a new 

constitutional right, neither our Supreme Court, nor 

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 is fatal to Appellant’s argument regarding 

the PCRA time-bar. This Court has recognized that a 

new rule of constitutional law is applied retroactively 

to cases on collateral review only if the United States 

Supreme Court or our Supreme Court specifically 

holds it to be retroactively applicable to those cases.

Id. at 995 (citations omitted) (emphasis supplied). 

Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa. Super. 2015) (emphasis 

original).

Alleyne was decided on June 17, 2013. As noted, Appellant’s 

judgment of sentence became final on April 23, 2012, more than one year 

before Alleyne was decided. Additionally, although a challenge based on 

Alleyne does implicate the legality of a sentence, “a legality of sentence 

claim may nevertheless be lost should it be raised . . . in an untimely PCRA

petition for which no time-bar exception applies.” Miller, 102 A.3d at 995-

996. Appellant’s petition was filed beyond the one-year deadline under the 

PCRA, and Appellant cannot rely on Alleyne or its progeny to invoke the 

timeliness exception at section 9545(b)(1)(iii) to rescue his petition.5

____________________________________________

5 While we acknowledge that Appellant’s claim concerning Alleyne goes to 

the legality of his sentence, we note that this Court has stated that 

“although illegal sentencing issues cannot be waived, they still must be 

presented in a timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d 

462, 465 (Pa. Super. 2013).
J-S27011-16

- 11 -

In conclusion, because Appellant’s second PCRA petition was untimely 

and no exceptions apply, the PCRA court lacked jurisdiction to address the 

claims presented and grant relief. See Commonwealth v. Fairiror, 809 

A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction 

to hear untimely petition). Likewise, we lack the authority to address the 

merits of any substantive claims raised in the PCRA petition. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) 

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/14/2016