J-S90045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEVIN SMITH

Appellant No. 2288 EDA 2016

Appeal from the PCRA Order May 27, 2016

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0000492-2000

BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 08, 2016

Kevin Smith (“Appellant”) appeals from the order entered in the 

Chester County Court of Common Pleas, which dismissed his petition filed for 

relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

The PCRA court set forth the relevant factual and procedural history of 

this appeal as follows:

On August 18, 2000[, a] jury convicted [Appellant] of 

twelve (12) counts of [r]obbery and one count each of 

[c]riminal [c]onspiracy, [p]ossessing [i]nstruments of 

[c]rime (“PIC”), [t]heft by [u]nlawful [t]aking (“TBUT”), 

[f]irearms [n]ot to be [c]arried [w]ithout a [l]icense and 

[c]rimes [c]omitted with a [f]irearm...

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
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On October 18, 2000, [Appellant] was sentenced to an 

aggregate sentence of not less than 23 years and not more 

than 46 years[’] imprisonment, followed by a term of 

seven (7) years of probation. [Appellant] timely appealed 

the judgment of sentence, which was affirmed by the 

Superior Court on September 27, 2002. Commonwealth 

v. Smith, 3324 EDA 2000. [Appellant] did not seek 

allowance of appeal in the Supreme Court of Pennsylvania.

On August 26, 2004, [Appellant] filed a first untimely PCRA 

petition. Counsel was appointed to represent [Appellant] 

in all matter[s] pertaining to that PCRA petition. PCRA 

counsel filed a “no-merit” letter and a [p]etition to 

[w]ithdraw, pursuant to the dictates set forth in 

Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and 

Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super.1988). On December 15, 2004, the [c]ourt 

dismissed [Appellant’s] first PCRA petition as untimely. 

[Appellant] did not appeal the dismissal of his first PCRA 

petition.

On October 4, 2005, [Appellant] filed a second untimely 

PCRA petition... On March 10, 2006, the court dismissed 

[Appellant’s] second PCRA petition as untimely. 

[Appellant] did not appeal.

PCRA Court notice of intent to dismiss PCRA petition pursuant to 

Pa.R.Crim.P. 907, filed May 4, 2016, at 2, footnote 2.

On March 21, 2016, Appellant filed his third PCRA petition, which is the 

subject of this appeal. On May 4, 2016, the PCRA court filed notice of its 

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 

907. Appellant filed a response to the notice on May 23, 2016, and the 

PCRA court dismissed his petition without a hearing on May 27, 2016.

On June 16, 2016, Appellant timely filed a notice of appeal. On July 

14, 2016, the court ordered Appellant to file a concise statement of errors 
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complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely 

complied on July 28, 2016.

Before we address the merits of Appellant’s claims, we must determine 

whether his PCRA petition was timely. The timeliness of a PCRA petition 

implicates the jurisdiction of both this Court and the PCRA court. 

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal 

denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no 

court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord 

finality to the collateral review process[,]” the PCRA “confers no authority 

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA 

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With 

respect to jurisdiction under the PCRA, this Court has further explained: 

The most recent amendments to the PCRA...provide a 

PCRA petition, including a second or subsequent petition, 

shall be filed within one year of the date the underlying 

judgment becomes final. A judgment is deemed final at 

the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of 

time for seeking the review. 

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) 

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011); 

see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed 

more than one year after the judgment of sentence becomes final only if the 

claim falls within one of the following three statutory exceptions, which the 

petitioner must plead and prove:
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(i) the failure to raise the claim 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). These “exceptions to the time bar must be pled in 

the PCRA petition, and may not be raised for the first time on appeal.” 

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007). Further, 

if a petition pleads one of these exceptions, the petition will not be 

considered unless it is “filed within 60 days of the date the claim could have 

been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, Appellant’s judgment of sentence became final on October 28, 

2002, when the time-period to file a petition for allowance of appeal with our 

Supreme Court expired. See 42 Pa.C.S. § 9545(b)(1), (3). See also 1 

Pa.C.S. § 1908 (“Whenever the last day of [an appeal] period shall fall on... 

Sunday... such day shall be omitted from the computation”). Appellant’s 

PCRA petition, filed March 21, 2016, is patently untimely. We must next 

determine whether Appellant has pled and proved any of the enumerated 

exceptions to the PCRA’s jurisdictional time limitation.
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Appellant has failed to include in his pro se brief a section of questions 

presented. We can glean, however, from the argument in his brief, his 

Pa.R.A.P. 1925(b) statement, and his PCRA petition that Appellant attempts 

to invoke the constitutional right exception to the PCRA time-bar pursuant to 

42 Pa.C.S. § 9545(b)(1)(iii). Appellant claims that his sentence was 

unconstitutional pursuant to Alleyne v. United States, ___ U.S. ___, 133 

S.Ct, 2151, 186 L.Ed.2d 314 (2013), and that the holding in Alleyne should 

apply retroactively to his case. In Alleyne, the Supreme Court of the United 

States held that “[a]ny fact that, by law, increases the penalty for a crime is 

an ‘element’ that must be submitted to the jury and found beyond a 

reasonable doubt.” Id., 133 S.Ct. at 2155. 

Unfortunately for Appellant, to qualify for the constitutional right 

exception to the PCRA time limitation, Appellant must plead and prove that 

the Supreme Court of Pennsylvania or the Supreme Court of the United 

States has recognized a constitutional right and that the right “has been 

held by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii) 

(emphasis added). In Commonwealth v. Washington, 142 A.3d 810 

(Pa.2016), the Supreme Court of Pennsylvania held that Alleyne does not 

apply retroactively to cases pending on collateral review. Neither the 

Supreme Court of Pennsylvania nor the Supreme Court of the United States

has held that Alleyne applies retroactively.
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Because Appellant has failed to plead and prove any of the 

enumerated exceptions to the PCRA’s jurisdictional time limitation, 

Appellant’s petition remains time-barred, and the PCRA court correctly 

determined it lacked jurisdiction to hear it. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2016