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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 April 4, 2008, during 

which police seized crack cocaine, a digital scale, and a firearm 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. 
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the front passenger seat, where Appellant had been sitting. On January 20, 

2010, the trial court held a sentencing hearing and determined that 

imposition of the five-year mandatory minimum sentence2

 was appropriate 

based on its “find[ing] for the record that absolutely the 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 aggregate term of not less 

than five nor more than ten years’ incarceration. Appellant filed a direct 

appeal, and this Court affirmed the judgment of sentence 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(unpublished memorandum)).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 Super. 2013) (unpublished memorandum)). 

On August 14, 2013, Appellant, acting pro se, filed the instant PCRA 

petition, claiming that his sentence is illegal based on 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. 
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facts that increase mandatory minimum sentence are elements of offense 

and must be submitted to jury and proven beyond reasonable doubt).3

 (See

PCRA Petition, 8/14/13, at 3, 7). On August 29, 2013, the PCRA court 

issued notice of its intention to dismiss the PCRA petition without a hearing. 

See Pa.R.Crim.P. 907(1). Appellant did not respond. On October 1, 2013, 

the PCRA court dismissed the petition. However, on October 25, 2013, the 

court entered a memorandum opinion stating its intention 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 vacating the October 1, 

2013 order. The Commonwealth filed a response on December 16, 2013. 

On December 26, 2013, Appellant filed a supplemental PCRA petition. On 

December 31, 2013, the court entered a memorandum opinion and Rule 907 

____________________________________________ 

3

 The Alleyne Court overruled previous precedent because, prior to the 

decision, state legislatures were free to delegate fact-finding authority 

relative to mandatory minimum sentences to sentencing judges. 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 order 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 mandatory minimum 

sentence were not determined by the factfinder to have been proven beyond 

a reasonable doubt. See Munday, supra at 662, 666. 
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notice of its intent to dismiss the petition. On January 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 submitted 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 granting or denying 

relief under the PCRA calls upon us to determine whether the 

determination of the PCRA court is supported by the evidence of 

record and is free of legal error. The PCRA court’s findings will 

not be disturbed unless there is no support for the findings in the 

certified record. 

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) 

(citations and quotation marks omitted). 

Before we may consider the merits of Appellant’s claim, we 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 judgment of 

____________________________________________ 

5

 The PCRA court ordered Appellant to file a Rule 1925(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. 
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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 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) (case citations 

and footnote omitted). 

In this case, Appellant’s judgment of sentence became final 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 petition on August 14, 2013, 

it is untimely on its face, and the PCRA court lacked jurisdiction to review it 

unless he pleaded and proved one of the statutory exceptions 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 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 
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(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 are 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, retroactively-applied 

constitutional right to relief predicated on the United States Supreme Court’s 

decision in Alleyne, supra. (See Appellant’s Brief, at 11, 14-15).6

 We 

disagree. 

Initially, we note that the exception set forth in section 9545(b)(1)(iii) 

applies only where “the right asserted is a constitutional 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-eight days later, on August 14, 

2013. See 42 Pa.C.S.A. § 9545(b)(2). 
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of Pennsylvania after the time period provided in this 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. First, it 

provides that the right asserted is a constitutional right 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 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 legislature clearly intended that the right 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 applicability 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 apply retroactively.” 

Garcia, supra at 1063 (citations and quotation marks omitted). 

Accordingly, Appellant has not met his burden of proving his untimely 

petition fits within one of the three exceptions to the PCRA’s jurisdictional 

time-bar. See Jones, supra at 17. The PCRA court properly dismissed 
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Appellant’s second petition as untimely with no exception to the time-bar 

pleaded or proven. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/21/2014