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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v. MICHAEL SPADAFORA Appellant No. 1412 MDA 2015

Appeal from the PCRA Order July 17 , 2015 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP

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BEFORE: BOWES, PANELLA AND JENKINS, JJ. MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016 Michael Spadafora appeals from the July 17, 2015 order dismissing his second PCRA petition. We affirm. Appellant manufactured and sold several pounds of methamphetamine between 2007 and 2008, and, after an investigation by the Pennsylvania Office of Attorney General, was charged with multiple offenses. On June 22, 2009, he tendered a negotiated guilty plea to one count each of corrupt organizations, delivery of a controlled substance, manufacture of a controlled substance, and a firearms v iolation. Pursuant to the agreement, Appellant was sentenced to eight to twenty years imprisonment pursuant to a mandatory minimum sentence outlined in 18 Pa.C.S. § 7508(a) and applicable to the drug offenses due to the weight of the methamphetamine, 2000 grams, involved. On appeal, we affirmed, Commonwealth v.J

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Spadafora , 23 A.3d 1082 (Pa.Super. 2011) (unpublished memorandum), and our Supreme Court denied review on September 26, 2011. Commonwealth v. Spadafora , 29 A.3d 797 (Pa. 2011). On January 13, 201 2, Appellant filed a counseled petition for post conviction relief, which was denied. On appeal, we affirmed. Commonwealth v. Spadafora , 87 A.3d 391 (Pa.Super. 2013), appeal denied , 89 A.3d 1284 (Pa. 2014). On June 2, 2014, Appellant filed a second co unseled PCRA petition seeking relief under Alleyne v. United States , 133 S.Ct. 2151 (2013). In Alleyne , the United States Supreme Court held that any fact, other than the existence of a prior conviction, that invokes application of a mandatory
minimum sen tence must be submitted to a jury and proven beyond a reasonable doubt. In Commonwealth v. Mosley , 114 A.3d 1072 (Pa. 2015), we held § 7508(a) was unconstitutional under Alleyne . On July 17, 2015, Appellant’s second PCRA petition was dismissed as untimel y filed. This appeal followed. Appellant was ordered to file a Pa.R.A.P. 1925(b) statement, but did not comply with that order. After successfully petitioning for a remand, he filed a Pa.R.A.P. 1925(b) statement and raised the Alleyne
issue. We first note the following. Appellant’s Statement of the Questions Involved, which must be included in a brief under Pa.R.A.P. 2116, is inconsistent with the actual argument raised in his brief. In his Pa.R.A.P. 2116 statement, Appellant presents this issue: “W hether the trial court erredJ

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in denying the Appellant’s post

- conviction relief act petition where the Appellant’s plea was not knowing and voluntary where it was revealed after his plea that the police officers involved in his arrest [were] subsequently
pr osecuted for selling narcotics.” 1 Appellant’s brief at 5. In the argument portion of his brief, however, Appellant reiterates the position raised in the second PCRA petition that his sentence is illegal under Alleyne and that he should either be afforded the opportunity to withdraw his plea or accorded a new sentencing hearing. Id . at 12. Appellant also notes that Alleyne issues cannot be waived. We will consider the Alleyne position, even though it was not presented in his Statement of Questions Involved, 2 since we agree that challenges to legality of sentences issues cannot be waived. Commonwealth v. Wolfe , 106 A.3d 800, 801 (Pa.Super. 2014) (“a

____________________________________________ 1 We also observe that the Commonwealth maintains that this statement is “outrageously false and not the facts of this case.” Commonwealth’s brief at 6. In footnote one, the Commonwealth asks that Appellant’s brief not be accessible electronically so that the agents involved herein are not associated with this untrue statement. The briefs filed in this Court are available electronically only to court employees, and we cannot control the dissemination of its contents by other websites. However, we can a llay the Commonwealth’s indignation with the following observations. The accusation leveled against the agents involved in this matter has no apparent connection to this case. Furthermore, the charge is unsupported by the record and was never presented t o the lower court. We can only conclude that it relates to another criminal case and disapprove of its inclusion in Appellant’s brief herein.

2 See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the statement of questions i nvolved or is fairly suggested thereby.”).J

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challenge to the legality of the sentence [,which includes an Alleyne claim,] can never be waived and may be raised by this Court sua sponte ”), aff’d on different grounds , 140 A.3d 651 (Pa. 2016). 3
This Court reviews the “denial of PCRA relief to determine whether the findings of the PCRA court are supported by the record and free of legal error.” Com monwealth v. Roane , 142 A.3d 79, 86 (Pa. Super. 2016) (quoting Commonwealth v. Treiber , 121 A.3d 435, 444 (Pa. 2015)). W e must first determine, however, whether Appellant’s June 2, 2014 PCRA petition was timely filed because that issue implicates our juri sdiction and its untimeliness was the basis for the PCRA court’s dismissal. If a PCRA petition is untimely, “ neither this Court nor the trial court has jurisdiction over the petition.” Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted); see Commonwealth v. Chester , 895 A.2d 520, 522 (Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the trial court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address t he substantive claims.”). We also note that, even though Appellant’s Alleyne contention cannot be waived, it nevertheless must be presented in a timely PCRA petition. Commonwealth

____________________________________________ 3 We are aware that our Supreme Court has granted allowance of appeal to decide this issue, i.e. : “[w] hether a challenge to a sentence pursuant to Alleyne v. United States , U.S. , 133 S.Ct. 2151, 186 L.Ed.2 d 314 (2013), implicates the legality of the sentence and is therefore non

waivable.” Commonwealth v. Barnes , 122 A.3d 1034 (Pa. 2015).J

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v. Fahy , 737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is al ways subject to review within the PCRA, [such a claim] must still first satisfy the PCRA's time limits or one of the exceptions thereto.”). Any PCRA petition has to be filed within one year of the date the defendant’s judgment becomes final unless an exc eption to the one

- year time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we now calculate when Appellant’s judgment of sentence became final. “A judgment becomes final at the conclusion of direct review, including discretionary review in th e 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). Appellant’s petition for allowance of appeal was denied on September 26, 2011, and, since he did no t seek review with the United States Supreme Court, his judgment of sentence became final ninety days thereafter, or on December 25, 2011. Miller , supra (where our Supreme Court denies allowance of appeal and no further review is sought, a defendant’s sen tence becomes final when the ninety

- day period for filing a petition for a writ of certiorari expires). Since December 25 th is a holiday, Appellant had until December 26, 2012, to file a timely PCRA petition. The instant petition, presented on June 2, 20 14, is untimely. There are three exceptions to the one

- year time bar of § 9545: (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 la ws of this Commonwealth or the Constitution or laws of the United States;J

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(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

- iii). Herein, Appellant maintains that Alleyne clearly announced a new constitutional rule and that it should be applied to his case. Appellant’s brief at 13. This argument implicates the after

- discovered constitutional right exception. However, our Supreme Court recently ruled that Alleyne does not apply retroactively. Commonwealth v. Washington , 142 A.3d 810 (Pa. 2016). Since Alleyne is not retroactive, Appellant’s assertion fails to overcome the PCRA’s time bar. See Miller , supra . Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/19/2016