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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. WENDELL F. JOHNSON, Appellant No. 3227 EDA 2015

Appeal from the PCRA Order Entered September 18 , 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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BEFORE: BENDER, P.J.E ., DUBOW, J., and STEVENS, P.J.E. * MEMORANDUM BY BENDER, P.J.E.: FILED JULY 14, 2016 Appellant, Wendell F. Johnson, appeals pro se from the September 18, 2015 order denying, as untimely, his petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546 . We affirm. The facts of Appellant’s underlying convictions are not necessary to our disposition of his appeal. The PCRA court briefly summarized the pertinent procedural history of Appellant’s case, as follows:

On September 17, 1992, [Appellant] was sentenced to 65 to 130 years’ incarceration for five counts of robbery as a felony [of] the first degree, two counts of conspiracy and two counts of possession of an instrument of crime by the Honorable Marvin Halbert. After [Appellant] filed an appeal, t he Superior Court remanded the case for re

- sentencing on the grounds that the trial court had not referenced the applicable guidelines for the

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* Former Justice specially assigned to the Superior Court.J

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crimes for which [Appellant] was convicted. 1 Thereafter, [Appellant] filed another appeal which was dismissed du e to the failure of his lawyer to file a brief. [Appellant] then filed a petition under the [PCRA] and his appellate rights were reinstated, but the Superior Court declined to consider the issue of the appropriateness of [Appellant’s] sentence, and the Pe nnsylvania Supreme Court denied allocatur on February 1, 2000. [ See Commonwealth v. Johnson , 742 A.2d 205 (Pa. Super. 1999) (unpublished memorandum), appeal denied , 751 A.2d 186 (Pa. 2000).] [Appellant’s] judgment became final ninety days thereafter when his ability to file for discretionary review in the United States Supreme Court had expired.
1 [Appellant] was subsequently re

- sentenced on May 29, 1996, and received the same 65 to 130 years’ incarceration. [Appellant’s] next [PCRA] petition was filed o n February 26, 2001, wherein counsel was appointed to represent [him]. Counsel then filed a letter pursuant to Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988), and this court dismissed the petition based on a lack of merit. The instant PCRA petiti on ... was filed on June 24, 2015, and a [Pa.R.Crim.P.] 907 Notice of Intent to Dismiss was mailed to [Appellant] on August 18, 2015. PCRA Court Opinion, 9/18/15, at 1

- 2 (one footnote omitted). Appellant did not respond to the PCRA court’s Rule 907 notice , and on September 18, 2015, the court issued an order, and an accompanying opinion, dismissing his petition as being untimely filed. Appellant filed a timely, pro se notice of appeal. The court did not order him to file a
Pa.R.A.P . 1925(b) statement, nor did the court draft a Rule 1925(a) opinion, presumably because it set forth its rationale for denying Appellant’s petition in its September 18, 2015 opinion, quoted supra . Herein, Appellant presents one question for our review: “ Did the Honorable PCRA [c]ourt err when it dismissed [Appellant’s] PCRA Petition without a hearing, and where ...J

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[Appellant] pled and would have been able to prove that the [c]ourt imposed an illegal sentence[?]” Appellant’s Brief at 2. This Court’s standa rd of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). We must begin by ad dressing the timeliness of Appellant’s petition, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett , 930 A.2d 1264, 1267 (Pa. 2007). Und er the PCRA, any petition for post

- conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)

- (ii i) applies: (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 UnitedJ

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- 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)

- (iii). Any petition attempting to invoke one of these exceptions “shall be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). Here, Appellant’s judgment of sentence became final on May 1, 2000, ninety days after the Pennsylvania Supreme Court denied his petition for allowance of appeal. S ee 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Commonwealth v. Owens , 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCR A, petitioner’s judgment of sentence becomes final ninety days after our Supreme Court rejects his or her petition for allowance of appeal since petitioner had ninety additional days to seek review with the United States Supreme Court). Consequently, Appe llant’s current petition, filed in June of 2015, is patently untimely, and for this Court to have jurisdiction to review the merits thereof, Appellant must prove that he meets one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9 545(b). In his petition, and on appeal, Appellant argues that several mandatory minimum sentences imposed in his case are illegal under Alleyne v. United States , 133 S.Ct. 2151 (2013). In Alleyne , the United States Supreme Court held that “facts that inc rease mandatory minimum sentences must be submitted to the jury” and found beyond a reasonableJ

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doubt. Alleyne , 133 S.Ct. at 2163. Presumably, Appellant’s reliance on Alleyne is an effort to satisfy the ‘new constitutional right’ exception of
section 9545 (b)(1)(iii). His attempt do so, however, fails outright because Alleyne was decided on June 17, 2013, and Appellant’s petition was not filed until June 24, 2015, over two years later. Consequently, Appellant has not satisfied the 60

- day requirement of se ction 9545(b)(2). Nevertheless, we also note that Appellant’s reliance on Alleyne cannot satisfy the ‘new constitutional right’ exception of section 9545(b)(1)(iii). In Commonwealth v. Abul - Salaam , 812 A.2d 487 (Pa. 2002), our Supreme Court stated:
Subsec tion (iii) of Section 9545 [(b)(1)] has two requirements

. First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or this court after the time provided in this section . Second, it p rovides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and that the right “has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e. , “that court” has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislat ure clearly intended that the right was already recognized at the time the petition was filed. Id. at 501.
In Commonwealth v. Miller , 102 A.3d 988 (Pa. Super. 2014), this Court held that Alleyne does not meet the second requirement of section 9545(b)(1)(i ii), stating:J

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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 fina l. 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 specif ically holds it to be retroactively applicable to those cases. Commonwealth v. Phillips , 31 A.3d 317, 320 (Pa. Super. 2011), appeal denied , 615 Pa. 784, 42 A.3d 1059 (2012), citing Tyler v. Cain , 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001); s ee also, e.g. , Commonwealth v. Taylor , 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes of subsection (iii), the language ‘has been held by that court to apply retroactively’ means the court announcing the rule must have also ruled on the retr oactivity of the new constitutional right, before the petitioner can assert retroactive application of the right in a PCRA petition[ ]”), appeal denied , 597 Pa. 715, 951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy the new constitutional ri ght exception to the time

- bar. Id. at 995. Since Miller , neither our Supreme Court, nor the United States Supreme Court, has held that Alleyne applies retroactively. Thus, Alleyne still cannot be the basis for application of the timeliness exception of section 9545(b)(1)(iii). 1 We acknowledge that since Alleyne , this Court has issued a line of cases deeming mandatory minimum sentencing statutes unconstitutional. Notably, in Commonwealth v. Valentine , 101 A.3d 801 (Pa. Super. 2014), we held that the man datory sentencing provision under which Appellant was

____________________________________________ 1 Obviously, if at some point our Supreme Court or the United States Supreme Court expressly holds that Alleyne does apply retroactively, Appellant will have 60 days from the date of that decision t o file a PCRA petition reasserting the exception set forth in section 9545(b)(1)(iii).J

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sentenced, 42 Pa.C.S. § 9712 (Sentences for offenses committed with firearms), is unconstitutional in its entirety in light of Alleyne and this Court’s en banc decision in Commonwealth v. Newman , 99 A.3 d 86 (Pa. Super. 2014) ( en banc ) (holding that one mandatory minimum sentencing provision, 42 Pa.C.S. § 9712.1, is unconstitutional, in its entirety, in light of Alleyne ). “It is also well

- established that ‘[i]f no statutory authorization exists for a par ticular sentence, that sentence is illegal and subject to correction.’” Commonwealth v. Fennell , 105 A.3d 13, 16 (Pa. Super. 2014) Id. (quoting Commonwealth v. Rivera , 95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted)). Arguably, then, Appellant’s sen tence, imposed under a now

- unconstitutional sentencing statute, is illegal. However, because Appellant’s PCRA petition is untimely, and he has not satisfied a timeliness exception, we do not have jurisdiction to correct that illegal sentence. See Common wealth v. Fahy , 737 A.2d 214, 222 (Pa. 1999) (“[A]lthough a legality of sentence is always subject to review within the PCRA, claims must first satisfy the PCRA’s time limits or one of the exceptions thereto.”); Commonwealth v. Fowler , 930 A.2d 586, 592 (P a. Super. 2007) (“[A] court may entertain a challenge to the legality of the sentence so long as the court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the filing of a timely PCRA petition.”). Thus, we affirm the PCRA court’s denial of Appellant’s untimely petition. Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/14/2016