J-S40020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT L. WOODARD,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 49 EDA 2017

Appeal from the PCRA Order November 18, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0220171-1992

BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JULY 11, 2017

Appellant, Robert L. Woodard,1appeals from the Order entered in the 

Philadelphia County Court of Common Pleas dismissing his thirteenth Petition 

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546, as untimely. 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.

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*

Former Justice specially assigned to the Superior Court.

1 As this Court explained in a prior decision, Woodard’s surname is listed in 

the certified record both as Woodward and Woodard. It appears that his 

correct surname name is Woodard. We have changed the caption 

accordingly.
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On December 10, 1992, a jury convicted Appellant of multiple counts 

of Robbery, Burglary, Rape, and Possessing an Instrument of Crime.2 On 

March 29, 1993, the trial court imposed an aggregate term of 48 to 96 

years’ incarceration. On May 5, 1994, we affirmed Appellant’s Judgment of 

Sentence. See Commonwealth v. Woodard, 647 A.2d 268 (Pa. Super. 

filed May 5, 1994) (unpublished memorandum).

Appellant did not seek review by the Pennsylvania Supreme Court. 

Appellant’s Judgment of Sentence, therefore, became final on June 4, 1994. 

See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113.

Over the course of the next twenty years, Appellant filed twelve PCRA 

Petitions, each of which were dismissed either because they lacked merit or 

because they were patently untimely under the strict terms of the PCRA. 

This Court affirmed each dismissal on appeal.

Appellant filed the instant pro se PCRA Petition, his thirteenth, on 

September 19, 2016, more than twenty-two years after his Judgment of 

Sentence became final. Relying on Alleyne v. United States, 133 S.Ct. 

2151 (U.S. 2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa. 

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2 18 Pa.C.S. § 3701; 18 Pa.C.S. § 3502; 18 Pa.C.S. § 3121; and 18 Pa.C.S. 

§ 907, respectively.
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Super. 2014),3 Appellant averred that he received an illegal mandatory 

minimum sentence as a result of being sentenced under 42 Pa.C.S. § 9714.

On October 4, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice 

advising Appellant of its intent to dismiss his Petition. Appellant did not file 

a response.

On November 18, 2016, the PCRA court dismissed Appellant’s Petition 

without a hearing, concluding that “Alleyne is inapplicable to [Appellant’s] 

sentence.”4 PCRA Court Opinion, dated 11/18/16, at 1.

Appellant timely appealed on December 14, 2016. The PCRA court did 

not order Appellant to file a Pa.R.A.P. 1925(b) Statement of Errors. The 

PCRA court filed a brief Pa.R.A.P. 1925(a) Opinion incorporating several of 

its prior Opinions.

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 

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3 Alleyne held that, other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory minimum 

must be submitted to a jury and proved beyond a reasonable doubt. 

Alleyne, 133 S.Ct. at 2160-61. In Newman, this Court held that pursuant 

to Alleyne, 42 Pa.C.S. § 9712.1 is no longer constitutional. Newman, 99 

A.3d at 88.

4 The PCRA court noted that this was Appellant’s fourth PCRA Petition 

invoking Alleyne in an attempt to vacate his Judgment of Sentence.
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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).

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 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).

Here, Appellant’s Judgment of Sentence became final on June 4, 1994, 

upon expiration of the time to file a Petition for Allowance of Appeal with the 

Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113. 

In order to be timely, Appellant needed to submit his PCRA Petition by June 

4, 1995. Id. Appellant filed this PCRA Petition on September 19, 2016, 
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more than two decades after the one-year deadline. Thus, Appellant’s

Petition is facially untimely.

Pennsylvania courts may consider an untimely PCRA petition 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. 

(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 also, 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).
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Here, in relying on Alleyne and Newman, supra, Appellant attempts 

to invoke the timeliness exception under Section 9545(b)(1)(iii) to challenge 

the legality of his sentence, averring that the court applied Section 9714’s 

mandatory minimum.

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) (holding that “[a]lthough 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”).

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 

of June 17, 2013, i.e., by August 16, 2013.5 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 19, 2016, over three years after the Alleyne

decision.

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5 This Court applied Alleyne in Newman, supra, on August 20, 2014. 

However, the clear terms of 42 Pa.C.S. § 9545(b)(1)(iii) only apply to 

decisions issued by the U.S. Supreme Court and the Pennsylvania Supreme 

Court. See also Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa. Super. 

2016).
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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 (Pa. filed July 19, 2016).6

Accordingly, Appellant failed to plead and prove any of the timeliness 

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly 

dismissed Appellant’s untimely Petition. The record supports the PCRA 

court’s findings and its Order is free of legal error. We, thus, affirm the 

denial of PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2017

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6 Appellant acknowledges that Washington, supra, is “binding” precedent. 

Appellant’s Brief at 10.