J-S48038- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. LAVINCE J. PATE, Appellant No. 191 MDA 2014

Appeal from the Order January 23 , 2014 in the Court of Common Pleas of Dauphin County Criminal Division at No.: CP

- 22

- CR -0002793-2008
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED AUGUST 21, 2014 Appellant, Lavince J. Pate, appeals pro se from the order dismissing his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm. On November 19, 2009, a jury found Appellant guilty of possession with intent to deliver a controlled substance, unlawful possession of drug paraphernalia, and firearms not to be carried without a license. 1 His conviction stems from a traffic stop that took place on A pril 4, 2008, during which police seized crack cocaine, a digital scale, and a fi rearm from under

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30), (32), and 18 Pa.C.S.A. § 6106(a)(1), respectively.J-S48038- 14

- 2 -

the front passenger seat, where Appellant had been sit ting. On January 20, 2010, the trial court held a sentencing hearing and de termined that imposition of the five- ye ar mandatory minimum sentence 2 was appropriate based on its “find[ing] for the record that absolutely t he firearms were within the vicinity of the drugs.” (N.T. Sentencing, 1/20/10, at 7; see also id. at 3-4, 8-9). The court sentenced Appellant to an aggreg ate term of not less than five nor more than ten years’ incarceration. App ellant filed a direct appeal, and this Court affirmed the judgment of sente nce on October 21, 2010. ( See Commonwealth v. Pate , 15 A.3d 537 (Pa. Super. 2010) (unpublished memorandum)). Our Supreme Court denied his petition for allowance of appeal on February 17, 2011. ( See Commonwealth v. Pate , 14 A.3d 826 (Pa. 2011) ). On March 27, 2012, Appellant filed a PCRA petition, which the PCRA court denied on August 24, 2012. Appellant appealed, and this Court affirmed the PCRA court’s order on June 11, 2013. ( See Commonwealth
v. Pate , 82 A.3d 459 (Pa. Super. 2013) (unpublished memorandu m)). On August 14, 2013, Appellant, acting pro se , filed the instant PCRA petition, claiming that his sentence is illegal based o n the United States Supreme Court’s decision in Alleyne v. United States , 133 S. Ct. 2151, 2155 (2013) (holding that, to comply with dictates of Sixth Amendment,

____________________________________________
2 See 42 Pa.C.S.A. § 9712.1.J-S48038- 14

- 3 -

facts that increase mandatory minimum sentence are elemen ts of offense and must be submitted to jury and proven beyond reason able doubt). 3 ( See PCRA Petition, 8/14/13, at 3, 7). On August 29, 201 3, the PCRA court issued notice of its intention to dismiss the PCRA petit ion without a hearing. See Pa.R.Crim.P. 907(1). Appellant did not respond. O n October 1, 2013, the PCRA court dismissed the petition. However, on Oct ober 25, 2013, the court entered a memorandum opinion stating its intenti on to vacate the October 1, 2013 order, and directed the Commonwealth to file a response. 4 On November 4, 2013, the court entered an order vaca ting the October 1, 2013 order. The Commonwealth filed a response on Dece mber 16, 2013. On December 26, 2013, Appellant filed a supplemental PCRA petition. On December 31, 2013, the court entered a memorandum opi nion and Rule 907

____________________________________________ 3 The Alleyne Court overruled previous precedent because, prior to t he decision, state legislatures were free to delegate fact- finding authority relative to mandatory minimum sentences to sentencing j udges. See Alleyne , supra at 2155; see also Commonwealth v. Hanson , 82 A.3d 1023, 1039-40 (Pa. 2013).

4 It appears that the PCRA court took this action in or der to consider this Court’s decision in Commonwealth v. Munday , 78 A.3d 661 (Pa. Super. 2013), which was filed on October 10, 2013. ( See Trial Court Opinion, 12/31/13, at 2-4, 6). The Munday court considered Alleyne in the context of a direct appeal , and determined that the appellant’s sentence could not stand because the facts necessary for imposition of the mand atory minimum sentence were not determined by the factfinder to have been proven beyond a reasonable doubt. See Munday , supra at 662, 666.J-S48038- 14

- 4 -

notice of its intent to dismiss the petition. On Januar y 23, 2014, the court entered its order dismissing the PCRA petition. This timely appeal followed. 5 Appellant raises the following issues for our review:

1. Did the [PCRA] [c]ourt erred [sic] in applying the mandatory minimum where the factors that support the imposition of 42 Pa.C.S. § 9712.1 where [sic] not submi tted to the jury[?]
2. Is 42 Pa.C.S. § 9712.1 facially invalid[?]
3. Whether the [PCRA] [c]ourt is incorrect and inaccurate in its decision that Alleyne v. [UNITED] STATES , 133 S.Ct. 2151 (2013), is not to be applied retroactively[?] (Appellant’s Brief, at 5). Our standard of review of a trial court order grantin g or denying relief under the PCRA calls upon us to determine wheth er the determination of the PCRA court is supported by the ev idence of record and is free of legal error. The PCRA court’s fi ndings will not be disturbed unless there is no support for the find ings in the certified record. Commonwealth v. Barndt , 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations and quotation marks omitted).
B efore we may consider the merits of Appellant’s claim, w e must consider whether this appeal is properly before us. A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner’s j udgment of

____________________________________________
5 The PCRA court ordered Appellant to file a Rule 192 5(b) statement of errors, and he timely complied on February 24, 2014. The court filed a Rule 1925(a) opinion on March 12, 2014. See Pa.R.A.P. 1925.J-S48038- 14

- 5 -

sentence became 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 revi ew 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 m erits of the issues raised if the petition was not timely filed . The timeliness requirements apply to all PCRA petitions, r egardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of prov ing an untimely petition fits within one of the three except ions. Commonwealth v. Jones , 54 A.3d 14, 16-17 (Pa. 2012) (case citations and footnote omitted). In this case, Appellant’s judgment of sentence became fi nal on May 18, 2011, when his time to file a petition for writ of certiorari with the United States Supreme Court expired. See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3). Because Appellant filed the instant petit ion on August 14, 2013 , it is untimely on its face, and the PCRA court lacked j urisdiction to review it unless he pleaded and proved one of the statutory exce ptions to the timebar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Section 9545 of the PCRA provides only three limited exceptions that allow for review of an untimely PCRA petition: (i) the failure to raise the claim previously was the result of interference by government officials with the presentat ion of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the Unite d States; (ii) the facts upon which the claim is predicated were un known to the petitioner and could not have been ascertained by the exercise of due diligence; orJ-S48038- 14

- 6 -

(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. Id. at § 9545(b)(1)(i)-(iii). “If the [PCRA] petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts ar e without jurisdiction to consider the merits of the petition.” Commonwealth v. Jackson , 30 A.3d 516, 519 (Pa. Super. 2011), appeal denied , 47 A.3d 845 (Pa. 2012) (citation omitted). In addition, a PCRA petition invoking one of these statutory exceptions must “ be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Here, Appellant claims the benefit of the exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), alleging a newly-recognized, retroa ctively-applied constitutional right to relief predicated on the Unite d States Supreme Court’s decision in Alleyne , supra . ( See Appellant’s Brief, at 11, 1 4-15). 6 We disagree. Initially, we note that the exception set forth in se ction 9545(b)(1)(iii) applies only where “the right asserted is a constitutiona l right that was recognized by the Supreme Court of the United States or the Supreme Court

____________________________________________ 6 The United States Supreme Court decided Alleyne on June 17, 2013, and Appellant filed the instant PCRA petition fifty-eigh t days later, on August 14, 2013. See 42 Pa.C.S.A. § 9545(b)(2).J-S48038- 14

- 7 -

of Pennsylvania after the time period provided in th is section and has been held by that court to apply retroactively

. ” 42 Pa.C.S.A. § 9545(b)(1)(iii) (emphasis added). Subsection (iii) of section 9545 has two requirements. F irst, it provides that the right asserted is a constitutional rig ht that was recognized by the Supreme Court of the United States or th[e Pennsylvania] Supreme Court after the time provided in this section. Second, it provides that the right “has been he ld” 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 tha t 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 wri ting this provision, the legislature clearly intended that the r ight was already recognized at the time the petition was filed

. Commonwealth v. Garcia , 23 A.3d 1059, 1063 (Pa. Super. 2011), appeal denied , 38 A.3d 823 (Pa. 2012) (citations omitted). In the instant case, although Appellant claims the ap plicability of section 9545(b)(1)(iii) based on Alleyne , the United States Supreme Court has not held that Alleyne applies retroactively to cases on collateral review. Thus, Appellant has failed to prove “ that there is a new constitutional right and that the right has been held by that court to app l y retroactively.” Garcia , supra at 1063 (citations and quotation marks omitted). Accordingly, Appellant has not met his burden of provin g his untimely petition fits within one of the three exceptions to t he PCRA’s jurisdictional time-bar. See Jones , supra at 17. The PCRA court properly dismissedJ-S48038- 14

- 8 -

Appellant’s second petition as untimely with no excepti on to the time -bar pleaded or proven. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/21/2014