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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARVIN JONES,

Appellant No. 3585 EDA 2015

Appeal from the PCRA Order November 2, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0000895-2006

BEFORE: SHOGAN, OTT, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 28, 2016

Appellant, Marvin Jones, appeals from the order denying his second 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the procedural history of this case as 

follows:

On March 20, 2008, a non-jury trial was held in front of 

The Honorable [. . .] Patricia H. Jenkins. Petitioner was found 

guilty of the following charges: Information A: possession with 

intent to deliver1, Information B: possession of a controlled 

substance2 and Information C: possession of drug 

paraphernalia3.

1 35 [P.S.] §780-113(a)(30).

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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2 35 [P.S.] §780-113(a)(16).

3 35 [P.S.] §780-113(a)(32).

On April 28, 2008, Petitioner was sentenced as follows: 

Information A: seven to fourteen years in a state correctional 

facility and on Information C: one year of state probation 

concurrent to Information A.4 Petitioner did not file any postsentence motions.

4

 Information B merged with Information A for 

purposes of sentencing.

Petitioner filed a timely notice of appeal to the 

Pennsylvania Superior Court on May 28, 2008. The Superior 

Court affirmed Petitioner’s judgment of sentence on December 

31, 2009[,] 1547 EDA 2008. On February 1, 2010, Petitioner 

filed a petition for allowance of appeal in the Pennsylvania 

Supreme Court, which was denied on June 24, 2010[,] 88 MAL 

2010.

Petitioner filed a PCRA Petition on February 27, 2014. The 

case was re-assigned to this Court who appointed PCRA counsel 

on March 31, 2014. On May 30, 2014, counsel was granted a 

continuance. On June 30, 2014, PCRA counsel submitted an 

application to withdraw as counsel and a no merit letter pursuant 

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

Commonwealth. v. Turner, 544 A.2d 927 ([Pa.] 1988). After 

review of PCRA Counsel’s documents, the record, and Petitioner’s 

PCRA Petition, this Court agreed with PCRA counsel that the 

Petition was untimely and this Court issued a notice of intent to 

dismiss without a hearing on July 2, 2014 and granted counsel’s 

request to withdraw.

Petitioner responded to the notice of intent to dismiss on 

July 10, 2014 and July 17, 2014. This Court issued an Order 

dismissing the Petition on July 28, 2014. Petitioner appealed on 

August 15, 2014. This Court issued a 1925(b) Order on August 

21, 2014, which Petitioner responded to on September 2, 2014. 

This Court filed its Opinion on October 10, 2014.

In a non-precedential decision filed on March 30, 2015, the 

Superior Court stated it agreed with [the trial court’s] sound 

reasoning and affirmed on that basis. In addition, the Superior 
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Court noted that even if Appellant had filed his petition within 

the sixty-day period specified by Section 9545(b)(2) following 

the decision in Alleyne, Petitioner still would not be eligible for 

relief because Alleyne does not apply retroactively to cases on 

PCRA review. Commonwealth v. Miller, 102 A.2d 988, 995 (Pa. 

Super. 2014). Petitioner filed a petition for allowance of appeal 

to the Pennsylvania Supreme Court which he later withdrew.

On August 12, 2015, privately retained counsel for 

Appellant filed a second Post-Conviction Relief Act Petition. 

Counsel filed a [supplement] to her petition on August 13, 2015.

* * *

This [c]ourt filed a notice of intent to dismiss on October 8, 

2015. Counsel responded on October 19, 2015. This [c]ourt 

dismissed the Petition on November 2, 2015. Counsel filed an 

appeal on November 20, 2015. This [c]ourt did not issue a 

1925(b) order because the sole issue at hand is whether this 

[c]ourt erred in dismissing the petition which included only one 

issue, the legality of the mandatory minimum sentence.

Trial Court Opinion, 12/7/15, at 1-4 (internal footnote omitted). 

Appellant presents the following issues for our review:

Whether the PCRA Court erred when it denied the PCRA 

petition as untimely?

Whether the [Commonwealth v. Hopkins, 117 A.3d 247 

(Pa. 2015)] decision is automatically retroactive to collateral 

review because it is the first interpretation by the State’s highest 

court of the constitutionality of criminal statutes authorizing the 

imposition of mandatory sentences on a class of criminal 

defendants or because it narrows the classes of people subject to 

increased punishment under [Montgomery v. Louisiana, 136 

S.Ct. 718 (2016)] / [Welch v. United States, 136 S.Ct. 1257 

(2016)].

Whether the PCRA Court erred when it did not exercise its 

inherent jurisdiction and vacate a sentence that is illegal, 

unconstitutional and void?

Appellant’s Brief at 1-2.
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Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA 

court’s determination is free of legal error. Commonwealth v. Phillips, 31 

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001)).

A PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time 

requirement is mandatory and jurisdictional in nature, and the court may not 

ignore it in order to reach the merits of the petition. Commonwealth v. 

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). A judgment of sentence 

“becomes 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).

However, an untimely petition may be received when the petition 

alleges, and the petitioner proves, that any of the three limited exceptions to 

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), 

and (iii), is met.1 A petition invoking one of these exceptions must be filed 
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within sixty days of the date the claim could first have been presented. 42 

Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the 

PCRA’s one-year filing deadline, “the petitioner must plead and prove 

specific facts that demonstrate his claim was raised within the sixty-day time 

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

Our review of the record reflects that Appellant was sentenced on April 

28, 2008. Appellant filed a direct appeal, and this Court affirmed Appellant’s 

judgment of sentence on December 31, 2009. Commonwealth v. Jones, 

1547 EDA 2008, 990 A.2d 47 (Pa. Super. filed December 31, 2009). 

Appellant filed a petition for allowance of appeal which was denied on June 

24, 2010. Commonwealth v. Jones, 88 MAL 2010, 997 A.2d 1176 (Pa. 

June 24, 2010). Appellant did not file a petition for writ of certiorari. 

(Footnote Continued) _______________________

1

 The exceptions to the timeliness requirement are:

(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), (ii), and (iii).
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Accordingly, Appellant’s judgment of sentence became final on 

September 22, 2010, when the time for seeking certiorari from the United 

States Supreme Court expired.2 See 42 Pa.C.S. § 9545(b)(3) (providing 

that “a judgment becomes 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.”). Therefore, Appellant had to file the current PCRA petition by 

September 22, 2011, in order for it to be timely. Appellant did not file the 

instant PCRA petition, his second, until August 12, 2015. Thus, Appellant’s 

instant PCRA petition is patently untimely. 

As previously stated, if a petitioner does not file a timely PCRA 

petition, his petition may nevertheless be received under any of the three 

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. 

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file 

his petition within sixty days of the date that the exception could be 

asserted. 42 Pa.C.S. § 9545(b)(2). This is true despite the fact that 

Appellant’s petition presents a challenge to the legality of his sentence. See 

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) 

(“Although legality of sentence is always subject to review within the PCRA, 

____________________________________________

2

 Appellant had ninety days from the date of the Pennsylvania Supreme 

Court’s decision on direct appeal to file a petition for a writ of certiorari with 

the United States Supreme Court. Commonwealth v. Hackett, 956 A.2d 

978, 980 n.4 (Pa. 2008); United States Supreme Court Rule 13.
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claims must still first satisfy the PCRA’s time limits or one of the exceptions 

thereto.”).

In his petition, Appellant argues that he is eligible for relief because:

the sentence was based on unconstitutional statutes in violation 

of the Due Process Clause of the Fourteenth Amendment and 

Commonwealth v. Hopkins, 2015 PA Lexis 1282 (6/15/15) 

which interpreted Alleyne v. United States, 570 U.S. __, 133 

S.Ct. 2151, 186 L.Ed.2d 314 (2013) to mean that Pennsylvania 

statutes imposing mandatory minimums based on facts found by 

a judge based on a preponderance of the evidence were (and 

are) unconstitutional. 

PCRA Petition, 8/12/15, at 1-2. Appellant further alleges that “the 

conviction was obtained and sentence imposed in violation of Alleyne . . . 

[because] the prosecution did not produce a lab report proving the nature 

and weight of the controlled substance beyond a reasonable doubt.” Id. 

Thus, Appellant’s argument may be characterized as an attempt to assert 

the “new constitutional right” exception to the PCRA time-bar based on 

Alleyne v. United States, 133 S.Ct. 2151 (2013), and Commonwealth v. 

Hopkins, 117 A.3d 247 (Pa. 2015).

In Alleyne, the Supreme Court held that the constitutional jury 

trial right requires any fact, other than a prior conviction, that 

triggers a mandatory minimum sentence to be proven beyond a 

reasonable doubt before the finder of fact. Alleyne is an 

application of the Court’s prior pronouncement in Apprendi v. 

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 

(2000), which ruled that any fact that increases a maximum 

sentence must be found by the factfinder beyond a reasonable 

doubt or admitted by the defendant during his guilty plea. In 

Alleyne, the United States Supreme Court expressly overruled 

Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 

L.Ed.2d 524 (2002), which held that a fact that involves a 

mandatory minimum sentence does not implicate jury trial 
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rights. Alleyne also implicitly abrogated McMillan v. 

Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 

(1986), which withstood an Apprendi attack in the Harris 

decision.

In Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super.2014) (relying upon Commonwealth v. Watley, 81 

A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that 

Alleyne will be applied to cases pending on direct appeal when 

Alleyne was issued. 

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015) 

(emphasis added). 

While this Court has held that Alleyne applies to cases that were on 

direct appeal when Alleyne was issued, we have declined to construe that 

decision as applying retroactively to cases in which the judgment of 

sentence has become final. 

In concluding Alleyne does not satisfy the new retroactive 

constitutional right exception to the PCRA’s one year time bar, 

42 Pa.C.S. § 9545(b)(1)(iii), the [Commonwealth v. Miller, 

102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:

Even assuming that Alleyne did announce a new 

constitutional right, neither our Supreme Court, nor 

the United States Supreme Court has held that 

Alleyne is to be applied retroactively to cases in 

which the judgment of sentence had become 

final. This is fatal to Appellant’s argument regarding 

the PCRA time-bar. This Court has recognized that a 

new rule of constitutional law is applied retroactively 

to cases on collateral review only if the United States 

Supreme Court or our Supreme Court specifically 

holds it to be retroactively applicable to those cases.

Id. at 995 (citations omitted) (emphasis supplied). 
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Commonwealth v. Ruiz, 131 A.3d. 54, 58 (Pa. Super. 2015) (emphasis in 

original). Indeed, our State Supreme Court recently held that “Alleyne

does not apply retroactively to cases pending on collateral review.” 

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

As noted, Appellant’s judgment of sentence was imposed on April 28, 

2008, and became final on September 22, 2010. Alleyne was decided on 

June 17, 2013. Alleyne, 133 S.Ct. at 2151. Appellant’s judgment of 

sentence was finalized years before Alleyne was decided. Therefore, 

Appellant’s PCRA petition does not qualify for the new constitutional right 

exception to the PCRA time bar under Alleyne. 

Furthermore, the Hopkins decision did not announce a “new rule”; 

rather, it simply assessed the validity of 18 Pa.C.S. § 6317 under Alleyne

and concluded that particular mandatory minimum sentencing statute is 

unconstitutional. Nevertheless, even if Hopkins announced a new rule, 

neither our Supreme Court nor the United States Supreme Court has held 

that Hopkins applies retroactively to postconviction petitioners such as 

Appellant. As noted, Appellant’s judgment of sentence became final on 

September 22, 2010, and Hopkins was not decided until June 15, 2015. 

Consequently, to the extent Appellant attempts to rely on Hopkins, he has 

not satisfied the time-bar exception of Section 9545(b)(1)(iii).

Additionally, we note that although a challenge based on Alleyne does 

implicate the legality of a sentence, “a legality of sentence claim may 
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nevertheless be lost should it be raised . . . in an untimely PCRA petition for 

which no time-bar exception applies.” Miller, 102 A.3d at 995-996. Thus, 

the PCRA court properly dismissed Appellant’s instant PCRA petition as 

untimely. It was filed beyond the one-year general deadline, and Appellant 

cannot rely on Alleyne or its progeny to invoke the timeliness exception at 

section 9545(b)(1)(iii).

Consequently, because the instant PCRA petition was untimely and no 

exceptions apply, the PCRA court lacked jurisdiction to address the claims 

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to 

hear untimely petition). Likewise, we lack the authority to address the 

merits of any substantive claims raised in the PCRA petition. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) 

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/28/2016