J-S84026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MATTHEW LEE CHANG

Appellant No. 1328 EDA 2016

Appeal from the PCRA Order Dated November 24, 2015

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000376-2010

BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 29, 2016

Appellant, Matthew Lee Chang, appeals from the order denying his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546. The PCRA court denied relief on the basis that Appellant’s 

petition was untimely, and therefore not within its jurisdiction. Upon review, 

we affirm.

On January 13, 2011, a jury convicted Appellant of two counts of 

possession with intent to deliver pursuant to 35 P.S. § 780-113(a)(30). On 

March 28, 2011, the trial court sentenced Appellant to an aggregate 57 to 

120 months’ incarceration. In imposing the sentence, the trial court applied 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
J-S84026-16

- 2 -

the mandatory minimum sentence prescribed for drug trafficking under 

Section 7508 of the Crimes Code, which was the law at the time Appellant 

was sentenced. Relevant to Appellant, Section 7508 provided for the 

following sentence:

when the aggregate weight of the compound or mixture 

containing the substance involved is at least 2.0 grams and less 

than ten grams; one year in prison and a fine of $5,000 or such 

larger amount as is sufficient to exhaust the assets utilized in 

and the proceeds from the illegal activity; however, if at the time 

of sentencing the defendant has been convicted of another drug 

trafficking offense: three years in prison and $10,000 or such 

larger amount as is sufficient to exhaust the assets utilized in 

and the proceeds from the illegal activity; . . .

18 Pa.C.S. § 7508(a)(3)(i). Appellant filed a motion for reconsideration on 

March 31, 2011, which the trial court denied on April 25, 2011. Appellant 

filed a direct appeal, and we affirmed the judgment of sentence. 

Commonwealth v. Chang, No. 1419 EDA 2011 (Pa. Super. December 28, 

2011) (unpublished memorandum). Appellant did not seek allowance of an 

appeal by the Pennsylvania Supreme Court.

In 2013, the U.S. Supreme Court held in Alleyne v. United States, 

133 S.Ct. 2151 (2013), that any fact that increases a mandatory minimum 

sentence for a crime is an element of the crime that must be proven before 

a jury beyond a reasonable doubt. The following year, we held that the 

mandatory minimum sentencing scheme under Section 7508 is 

“unconstitutional in its entirety” in light of Alleyne. Commonwealth v. 

Vargas, 108 A.3d 858, 876 (Pa. Super. 2014) (en banc), appeal denied,
J-S84026-16

- 3 -

121 A.3d 496 (Pa. 2015); see also Commonwealth v. Mosley, 114 A.3d 

1072 (Pa. Super. 2015). On July 16, 2015, Appellant filed a pro se PCRA 

petition asserting that his sentence was “a nullity” based on Alleyne and its 

Pennsylvania progeny. PCRA Petition, 7/16/15.

On July 27, 2015, the PCRA court issued a Rule 907 notice of its intent 

to dismiss Appellant’s PCRA petition on the ground that it had no jurisdiction 

to decide it because the petition was “not timely filed and . . . [Appellant] 

has not plead any statutory exception that would permit the court to hear 

and decide a late filed petition.” Appellant filed a pro se objection on 

August 14, 2015. On September 9, 2015, counsel entered an appearance 

on Appellant’s behalf.1 After obtaining an extension of time, counsel filed a 

response to the Rule 907 notice on September 24, 2015. The PCRA court 

held a hearing on November 23, 2015 and dismissed the PCRA petition the 

next day. Appellant did not file a timely appeal. On February 24, 2016, 

Appellant filed a motion to reinstate his appellate rights nunc pro tunc. The 

____________________________________________

1 The PCRA court did not initially appoint counsel to represent Appellant, in 

contravention of Pa.R.Crim.P. 904(C) (when an unrepresented defendant 

satisfies the judge that the defendant is unable to afford or otherwise 

procure counsel, the judge shall appoint counsel to represent the defendant 

on the defendant’s first petition for post-conviction collateral relief). 

Eventually, the PCRA court appointed the Monroe County Public Defender’s 

Office to represent Appellant as part of its July 27, 2015 order providing the 

Rule 907 notice of its intent to dismiss the PCRA petition. The Monroe 

County Public Defender’s Office has represented Appellant since it entered 

its appearance on September 9, 2015, and Appellant has not made any 

claim relative to the delay in his legal representation. 
J-S84026-16

- 4 -

PCRA court granted Appellant’s motion on April 7, 2016, and extended the 

time to file an appeal to May 8, 2016. Appellant filed this appeal on May 2, 

2016.

Appellant presents the following issue:

WHETHER THE PCRA COURT ERRED IN 

DENYING THE APPELLANT’S PCRA PETITION AS 

UNTIMELY FILED AND NOT WITHIN ANY APPLICABLE 

EXCEPTION TO ALLOW FOR CONSIDERATION OF 

THE MERITS OF THE PETITION?

(A) WHETHER ANY OBJECTION TO AN ILLEGAL 

SENTENCE CAN BE WAIVED?

Appellant’s Brief at 4.

Appellant argues that his sentence “is illegal and as such must be 

vacated.” Appellant’s Brief at 7. In support of his assertion, Appellant cites 

decisions by the Supreme Court of Pennsylvania and this Court, which have 

held that various provisions of Pennsylvania’s mandatory minimum 

sentencing statutes are unconstitutional in light of Alleyne. See Appellant’s 

Brief at 7-9, citing Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), 

and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). 

Appellant concedes that under “the current state of the law he may not be 

procedurally able to challenge the legality of his sentence,” id. at 9, and he 

references the Pennsylvania Supreme Court’s September 18, 2015 allowance 

of an appeal in Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015), to 

determine “whether a challenge to a sentence pursuant to Alleyne 

implicates the legality of the sentence and is therefore non-waivable.” See 
J-S84026-16

- 5 -

Appellant’s Brief at 7. As of this writing, the Barnes appeal remains 

pending before the Pennsylvania Supreme Court,2and the law as it stands is 

that a legality of sentence claim may “be lost should it be raised . . . in an 

untimely PCRA petition for which no time-bar exception applies, thus 

depriving the court of jurisdiction over the claim.” Commonwealth v. 

Miller, 102 A.3d 988, 995 (Pa. Super. 2014), citing Commonwealth v. 

Seskey, 86 A.3d 237, 242 (Pa. Super. 2014).

Accordingly, before we may address the merits of Appellant’s 

argument, we must determine whether the trial court correctly held that it 

lacked jurisdiction to decide Appellant’s petition because it is untimely. Our 

review of the PCRA court’s order is limited to ascertaining whether the 

record supports the determination of the PCRA court and whether that 

court’s ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 

523, 532 (Pa. 2009). We defer to the factual findings of the PCRA court, 

“but its legal determinations are subject to our plenary review.” Id. 

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 

Generally, a petition for relief under the PCRA must be filed within one year 

of the date the judgment is final unless the petition alleges and the 

____________________________________________

2 The case was argued on September 13, 2016, at Docket No. 36 EAP 2015.
J-S84026-16

- 6 -

petitioner proves one of the three exceptions to the time limitations for filing 

the petition set forth in Section 9545(b)(1) of the statute.3 A PCRA petition 

invoking one of these statutory exceptions must “be filed within 60 days of 

the date the claims could have been presented.” Hernandez, 79 A.3d at 

651-52 (citing 42 Pa.C.S. § 9545(b)(2)). Asserted exceptions to the time 

restrictions in the PCRA must be included in the petition and may not be 

raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 

521, 525 (Pa. Super. 2007).

Appellant recognizes that his argument based on Alleyne may be 

presented as an exception to the PCRA’s time bar only if Alleyne has been 

held by the Supreme Court to apply retroactively to cases on collateral 

____________________________________________

3 The three exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result 

of interference of 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). 
J-S84026-16

- 7 -

review, and that Alleyne has been held not to apply retroactively. 

Appellant’s Brief at 7-9; see Commonwealth v. Washington, 142 A.3d 

810, 820 (Pa. 2016). Appellant nonetheless argues that “fundamental 

fairness dictates that his sentence be vacated.” Appellant’s Brief at 9.

In rejecting Appellant’s argument, we are bound by legal precedent. 

Claims challenging a sentence’s legality and constitutionality are subject to 

the PCRA’s jurisdictional time restrictions. Commonwealth v. Fahy, 737 

A.2d 214 (Pa. 1999); Commonwealth v. Grafton, 928 A.2d 1112 (Pa. 

Super. 2007). The PCRA makes clear that compliance with the time limits 

set forth in the Act is a jurisdictional prerequisite to bringing such a claim. 

Therefore, because Appellant in this case failed to file his claim within the 

statutorily prescribed time limit, the PCRA court was without jurisdiction to 

hear his claim. As the PCRA court explained:

Here, the Superior Court affirmed the Judgment of 

Sentence on December 28, 2011, and [Appellant] did not file a 

petition for allowance of appeal. As a result, his judgment of 

sentence became final on January 27, 2012, thirty (30) days 

after the Superior Court’s decision was entered. Thereafter, 

[Appellant] had one year, or until January 27, 2013, in which to 

file a PCRA petition. [Appellant] filed the instant petition on 

July 14, 2015, the date he mailed it from prison, three and onehalf years after the judgment of sentence became final and two 

and one-half years after the PCRA filing deadline. As such, his 

petition is patently untimely.

Since the petition is untimely, [Appellant] cannot be 

afforded relief under the PCRA unless he pleads and proves one 

of the Section 9545 exceptions to the time bar. The petition, as 

filed, does not overcome this hurdle.
J-S84026-16

- 8 -

Initially, a review of the PCRA petition shows that 

[Appellant] does not specifically plead any of the three 

exceptions. This is especially true of the first two exceptions 

since nothing in the petition even remotely suggests interference 

by government officials or the discovery of new facts. Thus, to 

date, he has failed to invoke any of the exceptions. For this 

reason alone the Petition may be dismissed.

PCRA Court Order, 7/27/15, at 4.

We conclude that the record supports the PCRA court’s determination 

that it was without jurisdiction to review Appellant’s untimely PCRA petition. 

We therefore affirm the order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016