J-S75014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ANTHONY LEWIS STROTHER

Appellant No. 1260 EDA 2016

Appeal from the PCRA Order March 4, 2016

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0000971-2013

BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 18, 2016

Anthony Lewis Strother appeals from the March 4, 2016 order denying 

his PCRA petition as untimely. We affirm. 

Appellant pled guilty to rape of an unconscious victim and sexual 

assault on October 2, 2013, and was sentenced to six to twenty years 

incarceration. The facts giving rise to the charges are gleaned from the 

affidavit of probable cause of Detective Kevin Cornish of the Bensalem 

Township Police Department. On December 2, 2011, a female reported to 

police that at approximately 6:00 a.m., Appellant penetrated her sexually 

while she was sleeping. When she realized what was happening, she 

jumped up, alerted another resident of the apartment of what had occurred, 

and went to the hospital. 
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Appellant was originally represented by the public defender’s office, 

but due to a conflict of interest, outside counsel was appointed to assume 

his defense on July 5, 2013. Counsel was unsuccessful in dismissing the 

charges based on Pa.R.Crim.P. 600. Thereafter, on October 2, 2013, 

following both a written and oral colloquy, Appellant pled guilty and was 

sentenced to six to twenty years of imprisonment.1 He also was advised 

that he would be required to register as a sex offender under SORNA, 42 

Pa.C.S. § 9799, and the court ordered that he undergo a sexually violent 

predator (“SVP”) assessment. 

Appellant filed a pro se motion to reconsider the sentence. The Clerk 

of Courts forwarded the motion to counsel and notified Appellant that it was 

doing so. Counsel did not file a counseled motion or a direct appeal. 

Following a hearing on January 24, 2014, Appellant was determined to be an 

SVP. 

Appellant filed the within pro se PCRA petition on December 3, 2015 

challenging the legality of his sentence under Alleyne v. United States, 

133 S.Ct. 2151 (2013). Stuart Wilder, Esquire, was appointed as counsel. 

The Commonwealth filed a motion to dismiss Appellant’s petition as time 

barred, since more than one year had elapsed since judgment of sentence 

became final and Appellant had not alleged or offered proof of a valid 

____________________________________________

1 The sentences merged on the two offenses. 
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statutory exception under 42 Pa.C.S. § 9542(b). On February 2, 2016, the 

PCRA court issued Rule 907 notice of its intent to dismiss the petition as 

untimely. 

On February 11, 2016, Appellant filed a pro se objection to the 

dismissal. On February 25, 2016, counsel filed a no-merit letter seeking 

leave to withdraw as counsel pursuant to Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super. 1988) ("Turner/Finley"), addressing the issues Appellant 

submitted in his pro se petition. Counsel represented therein that Alleyne

was decided prior to the expiration of the time for Appellant to file a timely 

PCRA petition, and thus, he could not plead that it changed the law, citing 

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). Counsel 

represented that his review of the record did not reveal any further grounds 

for relief due to the untimeliness of the petition. He forwarded a copy of his 

no-merit letter and petition to Appellant. On March 4, 2016, the court 

dismissed Appellant’s PCRA petition as untimely and granted counsel’s 

request to withdraw. 

Appellant timely filed the within pro se appeal raising one issue for our 

review: “Did the trial Court err in not correcting an illegal sentence?” 
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Appellant’s brief at iii. Appellant claims that he was sentenced under a 

mandatory minimum statute that is facially unconstitutional.2 

Our "standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court's 

determination and whether its decision is free of legal error." 

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before 

we may proceed to the merits of Appellant's contentions, however, we must 

determine whether Appellant's PCRA petition was timely filed as that issue 

implicates our jurisdiction. Miller, supra. If a PCRA petition is untimely, 

"neither this Court nor the trial court has jurisdiction over the petition.” Id. 

at 992 (citation omitted); see Commonwealth v. Chester, 895 A.2d 520, 

522 (Pa. 2006).

Appellant’s judgment of sentence became final on November 1, 2013, 

and, he had one year from that date to file a timely PCRA petition, or 

November 1, 2014.3 Hence, the instant petition filed on December 3, 2015 

____________________________________________

2 The record does not support Appellant’s contention that he was sentenced 

to a mandatory minimum sentence that would be implicated by Alleyne v. 

United States, 133 S.Ct. 2151 (2013).

3

 In Commonwealth v. Schrader, 141 A.3d 558 (Pa.Super. 2016), this 

Court recently held that judgment of sentence in a case in which defendant 

pled guilty and waived a pre-sentence SVP determination does not become a 

final and appealable judgment until after the SVP determination is made. 

The record herein does not contain a waiver of a pre-sentence SVP 

determination. However, even under Schrader, the within petition which 

(Footnote Continued Next Page)
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is facially untimely. We recognize that there are three exceptions to the 

one-year time bar of § 9545:

(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.

42 Pa.C.S. § 9545(b)(1)(i-iii). "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)(2). The petitioner has the 

burden of pleading and proving that an exception is applicable. 

Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005). 

Appellant has not pled or proved a timeliness exception. Moreover, 

any attempt to rely upon Alleyne as the basis for the newly-recognized 

constitutional right exception fails. Our Supreme Court recently held in 

(Footnote Continued) _______________________

was filed on December 3, 2015, is untimely. Appellant was determined to be 

an SVP on January 24, 2014, and his judgment of sentence would have 

become final thirty days later on February 23, 2014, when he did not file a 

direct appeal. Thus, Appellant’s petition filed more than year after February 

23, 2015, was untimely. 
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Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), that Alleyne 

does not apply retroactively to attacks upon mandatory minimum sentences 

advanced on collateral review. Finally, Appellant’s contention that an illegal 

sentence cannot be waived and is always subject to review was rejected by 

our Supreme Court in Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 

1999) (recognizing that although legality of sentence is subject to review 

within the PCRA, the claim must first satisfy the PCRA's time limit or one of 

the exceptions); see also Commonwealth v. Jackson, 30 A.3d 516 

(Pa.Super. 2011). 

Since Appellant’s PCRA petition was untimely filed, and no exception to 

the time-bar was pled or proven, we affirm the trial court’s dismissal of 

Appellant’s petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016
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