J-S35024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDMUND A. SMITH, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1165 MDA 2017

Appeal from the PCRA Order June 27, 2017

In the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0001956-2011

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

JUDGMENT ORDER BY PANELLA, J. FILED OCTOBER 22, 2018

Edmund A. Smith, Jr., appeals, pro se, from the order dismissing his 

second petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546. We affirm. 

In 2012, Smith entered a nolo contendere plea to one count of 

involuntary deviate sexual intercourse with a minor, thirteen years of age at 

the time of the crime. The trial court sentenced Smith to ten to twenty years’ 

incarceration. Smith did not file a direct appeal following the denial of his postsentence motion on November 30, 2012. 

Thereafter, Smith filed a timely PCRA petition. In that petition, Smith 

alleged that his plea was unlawfully induced and that his sentence was illegal 

based upon the holding in Alleyne v. United States, 570 U.S. 99 (2013). 

Following a hearing, the PCRA court determined that Smith failed to prove 

coercion or the application of Alleyne and denied Smith’s petition. We later 
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affirmed the PCRA court. See Commonwealth v. Smith, No. 1864 MDA 2014 

(Pa. Super. filed Jan. 6, 2016) (unpublished memorandum). 

On August 8, 2016, Smith filed a second PCRA petition, again alleging 

the illegality of his sentence pursuant to Alleyne, as well as ineffectiveness 

of plea counsel for failing to file a direct appeal. The PCRA court issued notice 

of its intention to summarily dismiss the petition and subsequently did so. This 

timely appeal follows. 

Prior to reaching the merits of Smith’s claims on appeal, we must first 

consider the timeliness of his PCRA petition. See Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa. Super. 2014). 

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence becomes final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by this 

Court or the United States Supreme Court, or at the expiration of 

the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3). 

The PCRA’s timeliness requirements are jurisdictional; therefore, 

a court may not address the merits of the issues raised if the 

petition was not timely filed. The timeliness requirements apply to 

all PCRA petitions, regardless of the nature of the individual claims 

raised therein. The PCRA squarely places upon the petitioner the 

burden of proving an untimely petition fits within one of the three 

exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal 

citations and footnote omitted). 

Smith’s judgment of sentence became final on December 30, 2012,

when his 30-day window for filing a notice of appeal with this Court expired.

See Pa.R.Crim.P. 720(A)(2)(a); 42 Pa.C.S.A. § 9545(b)(3). Smith’s petition—
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filed almost four years later—is untimely. Thus, the PCRA court lacked 

jurisdiction to review Smith’s petition unless he was able to successfully plead 

and prove one of the statutory exceptions to the PCRA’s time-bar. See 42 

Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions 

must file a petition within 60 days of the date the claim could have first been 

presented. See 42 Pa.C.S.A. § 9545(b)(2).

In his PCRA petition, Smith attempts to plead an exception to the PCRA 

time bar under 42 Pa.C.S.A. § 9545(b)(1)(ii); i.e., newly discovered facts.

This exception relies on a showing that “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[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii). 

Smith contends he discovered his sentence violated the dictates of Alleyne 

through the holding of the recent Pennsylvania Supreme Court case of 

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). 

There are at least four major problems with this assertion. First, Smith 

cannot rationally claim that the holding of Alleyne was unknown to him prior 

to the disposition of Wolfe—he raised an Alleyne claim in his first, 

unsuccessful, PCRA petition. See Smith, No. 1864 MDA 2014 at 10-11. This 

leads to the second major problem with Smith’s claim—he already 

unsuccessfully litigated this exact claim in his first PCRA petition. See id. 

Therefore, he is precluded from obtaining relief on this issue. See 42 Pa.C.S.A. 

§ 9543(a)(3) (providing petitioner not eligible for relief if the allegation of 
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error was previously litigated). Thirdly, even if Smith had not previously raised 

an Alleyne claim, “Alleyne does not apply retroactively to cases pending on 

collateral review....” Commonwealth v. Washington, 142 A.3d 810, 820 

(Pa. 2016). And fourthly, judicial decisions are not newly-discovered facts 

triggering the timeliness exception of § 9545(b)(1)(ii). See Commonwealth 

v. Watts, 23 A.3d 980, 986 (Pa. 2011).

As Smith does not plead a valid exception to the PCRA’s time-bar, we 

are without jurisdiction to hear his claims. So, we affirm the PCRA court’s 

order denying relief. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2018