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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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. JOHN DANTZLER Appellant No. 1961 WDA 2015

Appeal from the PCRA Order October 30, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006538-1990 C P-02-CR-0006540-

1990 CP-02-CR-0014485-1990 CP-02-CR-0016210-1990
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.: FILED AUGUST 10, 2016 John Dantzler appeals from the order, entered in t he Court of Common Pleas of Allegheny County, dismissing his third pet ition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 95 41-9546. 1 After careful review, we affirm. On December 20, 1990, Dantzler entered a guilty pl ea to various drug offenses. On May 15, 1991, the court sentenced Dan tzler to an aggregate term of 16 to 32 years’ incarceration. A mandatory 3-year minimum

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1 The standard of review of an order denying a PCRA petition is whether that determination is supported by the evidence of recor d and is free of legal error. The PCRA court’s findings will not be distu rbed unless there is no support for the findings in the certified record. Commonwealth v. Johnston , 42 A.3d 1120, 1126 (Pa. Super. 2012).J-S61024-16

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sentence pursuant to 18 Pa.C.S. § 7508 (drug traffi cking sentencing/penalties) was applied to his sentence. Dantzler filed a motion to withdraw his guilty plea averring that the plea was not knowing, voluntary or intelligent. After an evidentiary hearing, the cou rt denied his motion. Dantzler filed a timely direct appeal; our Court a ffirmed his judgment of sentence on March 6, 1992. Dantzler filed a pet ition for allowance of appeal to our Supreme Court that was denied on Dece mber 8, 1992. Dantzler filed his first PCRA petition on May 25, 1 994. On March 2, 1995, the court dismissed Dantzler’s petition. On Januar y 16, 1997, Dantzler filed his second PCRA petition which the court dismissed on April 9, 1997, for failure to state a claim upon which relief could be granted. Dantzler filed his third PCRA petition on April 16, 2015, alleging tha t he is eligible for relief due to a constitutional violation “that so undermin ed the truth-determining process that no reliable adjudication of guilt or i nnocence could have taken place.” PCRA Petition, 4/16/15, at ¶ 4(I). Specif ically, Dantzler alleged that his sentence is illegal as a result of the court’s application of an unconstitutional mandatory minimum statute. On Oct ober 30, 2015, the court dismissed Dantzler’s petition. This timely a ppeal followed. On appeal, Dantzler presents the following issue f or our review: As the Pennsylvania Superior and Supreme Courts have f ound section 9712 2 to

____________________________________________ 2 See 42 Pa.C.S. § 9712 (sentences for offenses committed with firearms). Although Dantzler cites section 9712 in his appella te brief, he was actually (Footnote Continued Next Page)J-S61024-16

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be facially unconstitutional in its entirety, is th e Appellant entitled to relief from his illegal sentence as the statute has been u nconstitutional from the date of its passage and ineffective for any purpose ? Appellant’s Brief, at 7. Generally, a petition for PCRA relief, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final. See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn , 703 A.2d 1054 (Pa. Super. 1997). Instantly, Dantzl er’s judgment of sentence became final, for purposes of the PCRA, on March 8, 1993, when the time expired for him to file a petition for wri t of certiorari with the United States Supreme Court. See Sup. Ct. R. 13. Thus, in order for Dantzler’s petition to be considered timely filed, it must hav e been filed by March 8, 2004. Dantzler, however, did not file his third pe tition until April 16, 2015 – more than eleven years late under the PCRA. See 42 Pa.C.S.A. § 9545 (b)(3). Therefore, Dantzler’s petition is facially untimely. However, when a petition alleges, and a petitioner proves that an exception to the time for filing the petition is me t, the petition will be considered timely. These exceptions include interf erence by government officials in the presentation of the claim, after-d iscovered facts or evidence, and an after-recognized constitutional right. See Commonwealth v.

(Footnote Continued) _______________________ sentenced under section 7508’s mandatory minimum st atute, which is cited in his Pa.R.A.P. 1925(b) statement of error complai ned of on appeal as well as argued throughout his brief and amended petition

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Gamboa-Taylor , 753 A.2d 780, 783 (Pa. 2000). A PCRA petition in voking one of these exceptions must “be filed within 60 da ys of the date the claims could have been presented.” Id ; see also 42 Pa.C.S.A. § 9545(b)(2). The timeliness requirements of the PCRA are jurisdictio nal in nature and, accordingly, a PCRA court cannot hear untimely peti tions. Commonwealth v. Robinson , 837 A.2d 1157 (Pa. 2003). Dantzler does not allege or prove any section 9545 (b)(1) exception to the PCRA time bar. Rather he alleges his sentence is illegal based on the holding of Alleyne v. United States , 133 S. Ct. 2151 (2013), 3 and the application of an unconstitutional mandatory minimu m statute, section 7508(a)(3)(ii). Dantzler is correct that the mand atory minimum statute under which he was sentenced has been held unconsti tutional. See Commonwealth v. Fennell , 105 A.3d 13 (Pa. Super. 2014). However, in order for this Court to review a legality of senten ce claim, there must be a basis for our jurisdiction to engage in such review

. See Commonwealth v. Borovichka , 2011 PA Super 88, 18 A.3d 1242, 1254 (Pa. Super. 2011) (stating, “[a] challenge to the legality of a sente nce . . . may be entertained as long as the reviewing court has jurisdiction[.]” ) (citation omitted)). As this Court recently noted, “[t]hough not technicall y waivable, a legality [of

____________________________________________ 3 In Alleyne , the Supreme Court held that “facts that increase mandatory minimum sentences must be submitted to the jury” an d must be found beyond a reasonable doubt. Id. 133 S. Ct. at 2163.J-S61024-16

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sentence] claim may nevertheless be lost should it be raised . . . in an untimely PCRA petition for which no time-bar except ion applies, thus depriving the court of jurisdiction over the claim. ” Commonwealth v. Seskey , 86 A.3d 237, 242 (Pa. Super. 2014). 4 Thus, the trial court did not err in dismissing Da ntzler’s untimely PCRA petition. Johnston , supra . Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/10/2016

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4 We also note that Alleyne does not invalidate an unconstitutional mandatory minimum sentence when presented in an unt imely PCRA petition. See Commonwealth v. Miller , 102 A.3d 988 (Pa. Super. 2014).