J-S52005-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

KAYLON EVAN COWAN, :

:

Appellant : No. 242 MDA 2017

Appeal from the PCRA Order entered December 19, 2016

in the Court of Common Pleas of Lancaster County,

Criminal Division, No(s): CP-36-CR-0003026-2013

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2017

Kaylon Evan Cowan (“Cowan”) appeals, pro se, from the Order 

dismissing his first Petition for relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

On July 29, 2013, Cowan was charged with one count of aggravated 

assault. See 18 Pa.C.S.A. § 2702(a)(1). On October 3, 2013, Cowan 

entered a negotiated Alford1 plea. In accordance with the negotiated plea, 

the trial court sentenced Cowan to 5 to 20 years in prison,2and imposed a 

fine of $100. Cowan did not file a direct appeal. 

On September 12, 2016, Cowan filed the instant pro se PCRA Petition. 

The PCRA court appointed Cowan counsel, who subsequently filed a request 

 

1 N.C. v. Alford, 400 U.S. 25 (1970). 

2 The trial court imposed a mandatory minimum sentence pursuant to 42 

Pa.C.S.A. § 9712.
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to withdraw and a “no-merit” letter pursuant to Turner/Finley.

3

 Cowan 

filed objections to the Turner/Finley letter. After providing a Pa.R.Crim.P. 

907 Notice of Intent to Dismiss, the PCRA court granted counsel’s request to 

withdraw. Thereafter, the PCRA court dismissed Cowan’s PCRA Petition 

without a hearing. Cowan filed a timely Notice of Appeal. 

On appeal, Cowan raises the following question for our review: 

I. Can a sentence that is void from imposition serve as the basis 

for finality so as to trigger the one-year limitation period of the 

PCRA? 

Brief for Appellant at 4 (capitalization omitted). 

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court 

and the evidence of the record. We will not disturb a PCRA 

court’s ruling if it is supported by evidence and is free of legal 

error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted). 

Under the PCRA, a defendant must file any PCRA petition within one 

year of the date the judgment of sentence becomes final. See 42 Pa.C.S.A. 

§ 9545(b)(1). 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 the expiration of 

time for seeking review. Id. § 9545(b)(3). 

 

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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Here, the trial court sentenced Cowan on October 3, 2013, and Cowan 

did not file a direct appeal. Thus, Cowan’s sentence became final on 

November 4, 2013.4 See 42 Pa.C.S.A. § 9545(b)(3). Cowan had until 

November 4, 2014, to file a timely PCRA petition. Therefore, Cowan’s 

September 12, 2016 Petition is facially untimely under the PCRA. 

However, in the event that a petition is not filed within the one-year 

time frame, the PCRA provides three timeliness exceptions: (1) the failure 

to raise the claim was the result of government interference; (2) the facts of 

the new claim were unknown to the petitioner and could not have been 

discovered with due diligence; or (3) the right asserted is a constitutional 

right recognized by the United States Supreme Court or the Pennsylvania 

Supreme Court after the time period provided in the section and has been 

held to apply retroactively. Id. § 9545(b)(1)(i-iii). 

Here, Cowan invokes the newly-recognized constitutional right 

exception, and argues that the United States Supreme Court’s decision in 

Alleyne v. United States, 133 S. Ct. 2151 (2013), renders his sentence 

illegal. Brief for Appellant at 8-10. However, Alleyne was decided on June 

17, 2013. Cowan filed the PCRA Petition in September of 2016, well over 

sixty days after the date the claim could have been presented. See 42 

Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 

517 (Pa. Super. 2007) (stating that “[w]ith regard to [the newly-] 

 

4 November 2, 2013, was a Saturday. 
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recognized constitutional right, this Court has held that the sixty-day period 

begins to run upon the date of the underlying judicial decision.”). 

Even if Cowan had properly invoked the exception at section 

9545(b)(1)(iii), the rule established in Alleyne does not apply retroactively. 

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

(holding that “Alleyne does not apply retroactively to cases pending on 

collateral review.”); see also Commonwealth v. Miller, 102 A.3d 988, 995 

(Pa. Super. 2014) (stating that while Alleyne claims go to the legality of the 

sentence, a court cannot review a legality claim where it does not have 

jurisdiction). Cowan failed to meet the third timeliness exception. Thus, the 

PCRA court properly dismissed Cowan’s PCRA Petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2017