J-S38038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ERWIN FERGUSON, JR.

Appellant No. 3257 EDA 2015

Appeal from the PCRA Order September 30, 2015

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000340-2001

BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2016

Appellant Erwin Ferguson, Jr. appeals from the order of the Court of 

Common Pleas of Monroe County dismissing his petition filed pursuant to the 

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

On March 5, 2002, Appellant entered a plea of nolo contendere to 

criminal homicide.1 On May 30, 2002, the trial court sentenced Appellant to 

15 to 30 years’ imprisonment. Appellant did not file a notice of appeal. 

On June 19, 2003, Appellant filed his first PCRA petition. The PCRA 

court denied the petition, and this Court affirmed. The Supreme Court of 

Pennsylvania denied Appellant’s petition for allowance of appeal.

____________________________________________

1 18 Pa.C.S. § 2501.
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On January 22, 2007, Appellant filed his second PCRA petition. The 

PCRA court dismissed the petition, and this Court affirmed.

On August 12, 2015, Appellant filed the instant PCRA petition, his 

third. On September 1, 2015,2the PCRA court issued notice of its intent to 

dismiss the PCRA petition without a hearing pursuant to Pennsylvania Rule of 

Criminal Procedure 907. On September 21, 2015,3 Appellant filed a “Pro Se 

Response to Notice of Disposition Without Hearing.” On September 30, 

2015, the PCRA court issued an order denying the PCRA petition. On 

October 22, 2015, Appellant filed a notice of appeal.

On October 27, 2015, the PCRA court issued an order requiring 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant 

did not file a 1925(b) statement. On December 15, 2015, the PCRA court 

issued its 1925(a) statement.

____________________________________________

2 The notice of intent issued by the PCRA court was dated August 31, 2015, 

but stamped as docketed on September 1, 2015.

3 The postage on the envelope in which Appellant mailed the response was 

dated September 21, 2015. See Commonwealth v. Chambers, 35 A.3d 

34, 38 (Pa.Super.2011) (“in the interest of fairness, the prisoner mailbox

rule provides that a pro se prisoner’s document is deemed filed on the date 

he delivers it to prison authorities for mailing”).
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Appellant claims the PCRA court erred by dismissing his PCRA petition 

as untimely.4 He claims he filed his petition within 60 days of 

Commonwealth v. Hopkins,

5 which, he argues, applies to the facts of his 

case.

Appellant failed to file a 1925(b) statement and, therefore, has waived 

his claims raised on appeal. See Pa.R.A.P. 1925(b)(vii) (“Issues not 

included in the [1925(b)] Statement and/or not raised in accordance with 

the provisions of this paragraph (b)(4) are waived.”). 

Moreover, even if Appellant had preserved his issue, he is not entitled 

to relief because his petition is untimely. Our standard of review from the 

denial of post-conviction relief “is limited to examining whether the PCRA 

court’s determination is supported by the evidence of record and whether it 

is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 

(Pa.Super.2011) (citing Commonwealth v. Morales, 701 A.2d 516, 520 

(Pa.1997)).

Before addressing the merits of a PCRA petition, we first determine 

whether the petition is timely. The PCRA provides that a petition, “including 

a second or subsequent petition, shall be filed within one year of the date 

____________________________________________

4 Appellant’s brief does not contain a statement of questions presented as 

required by Pennsylvania Rule of Appellate Procedure 2116; however, his 

issue is clear from the remainder of his brief.

5 117 A.3d 247 (Pa.2015).
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the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1); accord

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

Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A 

judgment is 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.” 42 

Pa.C.S. § 9545(b)(3).

Three exceptions to the PCRA’s time-bar exist. The exceptions allow 

for limited circumstances under which a court may excuse the late filing of a 

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. To 

establish that an exception to the PCRA time-bar applies, a petitioner must 

allege and prove:

(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). When invoking an exception to the PCRA 

time-bar, the petition must “be filed within 60 days of the date the claim 

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

Appellant’s judgment of conviction became final on July 1, 2002, when 

the time to seek review by this Court expired.6 He had one year from that 

date, i.e., July 1, 2003, to file a timely PCRA petition. Therefore, his current 

petition, filed on August 12, 2015, is facially untimely. 

Appellant maintains he has established the newly discovered fact 

exception to the PCRA time bar, because the Pennsylvania Supreme Court

did not issue a decision in Hopkins until June 15, 2015.7 However, case 

____________________________________________

6

 Appellant had 30 days from entry of the judgment of sentence on May 30, 

2002 to file a direct appeal. Pa.R.A.P. 903(a). Thirty days from May 30, 

2002, was Saturday, June 29, 2002. Therefore, Appellant had until Monday, 

July 1, 2002, to file a direct appeal. 1 Pa.C.S. § 1908 (When last day of 

time period “fall[s] on Saturday or Sunday, . . . such day shall be omitted 

from the computation”); Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the 

Pennsylvania Consolidated Statutes (rules of construction) so far as not 

inconsistent with any express provision of these rules, shall be applicable to 

the interpretation of these rules . . . .”).

7

In Hopkins, the Supreme Court of Pennsylvania found that pursuant 

Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 

314 (2013), the mandatory minimum sentencing scheme set forth in 18 

Pa.C.S. § 6317 (“Drug-free school zones”) was unconstitutional in its 

entirety. See Hopkins, 117 A.3d at 262. The appellant in Hopkins had 

filed a direct appeal, as his sentence was not final at the time the Supreme 

Court of the United States issued its decision in Alleyne. 

Appellant was not sentenced pursuant to any mandatory minimum. See

Pennsylvania Commission on Sentencing Automatic Guideline Form. Rather, 

Appellant argues that the Court relied on facts contained in his pre-sentence 

report (“PSI”) report that were not submitted to the jury. Appellant’s Brief 

(Footnote Continued Next Page)
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decisions are not facts for purposes of 42 Pa.C.S. § 9545(b)(1)(ii).

8

 

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.Super.2013). 

Accordingly, Appellant has failed to allege and prove any exception to the 

PCRA time bar, and the PCRA court properly dismissed his third PCRA 

petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2016

(Footnote Continued) _______________________

at 2-3. Hopkins and Alleyne bar the imposition of mandatory minimum 

sentences based on facts that were not found by a jury. They do not 

preclude the use of a PSI report to determine an appropriate sentence.

8

Further, Appellant’s PCRA petition does not qualify for the new 

constitutional right exception to the PCRA time bar. Neither the United 

States Supreme Court nor the Pennsylvania Supreme Court has determined 

that Alleyne and Hopkins apply retroactively to those whose sentences 

were final prior to their issuance. Commonwealth v. Miller, 102 A.3d 988, 

995 (Pa.Super.2014); cf. Hopkins, 117 A.3d at 262. Therefore, Appellant’s 

PCRA petition does not qualify for the new constitutional right exception to 

the PCRA time bar. Miller, 102 A.3d at 905.
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