J-S03039-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

JAMES W. CRISE,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Nos. 1183 WDA 2016

 and 1204 WDA 2016

Appeal from the PCRA Order July 21, 2016

in the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0001899-2008

CP-65-CR-0004502-2008

BEFORE: OLSON, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 27, 2017

James W. Crise (Appellant) appeals from the July 21, 2016 order which 

dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546. We affirm.

In 2009, Appellant was convicted of various crimes including 

involuntary deviate sexual intercourse (IDSI). Appellant was sentenced to 

an aggregate term of 20 to 55 years of imprisonment. This Court denied 

Appellant relief on direct appeal, and his judgment of sentence became final 

in 2011 after our Supreme Court denied his petition for allowance of appeal. 

Commonwealth v. Crise, 24 A.3d 455 (Pa. Super. 2011) (unpublished 

memorandum), appeal denied, 24 A.3d 863 (Pa. 2011). Appellant’s first two 

PCRA petitions resulted in no relief.
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Appellant filed the petition that is the subject of the instant appeal on 

May 4, 2016. Therein, he claimed that he is entitled to relief in the form of 

resentencing and/or a new trial. Specifically, Appellant claimed that his 

sentence is illegal under Commonwealth v. Wolfe, 140 A.3d 651, 653 (Pa. 

2016) (holding 42 Pa.C.S. § 9718, the statute that provided a mandatory 

minimum sentence for IDSI, is unconstitutional under Alleyne v. United 

States, 133 S.Ct. 2151 (2013)). PCRA Petition, 8/13/2015, at ¶ 5(I). 

Appellant also contended that newly-discovered evidence warranted a new 

trial. Id. at ¶ 5(II) and (III).

The PCRA court issued notice of its intent to dismiss Appellant’s 

petition without a hearing, as untimely filed, to which Appellant filed a 

response in opposition. On July 21, 2016, the PCRA court entered an order 

dismissing Appellant’s petition as untimely filed. Appellant timely filed 

notices of appeal, and both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925. 

Appellant raises three substantive questions on appeal. Before we 

may consider them, we must determine whether the PCRA court correctly 

held that his petition was untimely filed, for the timeliness of a postconviction petition is jurisdictional. See, e.g., Commonwealth v. Lewis, 

63 A.3d 1274, 1280-81 (Pa. Super. 2013) (quoting Commonwealth v. 

Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f a PCRA petition is untimely, 

neither this Court nor the [PCRA] court has jurisdiction over the petition. 
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Without jurisdiction, we simply do not have the legal authority to address 

the substantive claims.”). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

of sentence is final unless the petition alleges, and the petitioner proves, 

that an exception to the time for filing the petition is met, and that the claim 

was raised within 60 days of the date on which it became available. 42 

Pa.C.S. § 9545(b). 

It is clear that Appellant’s 2016 petition is facially untimely: his 

judgment of sentence became final in 2011. Yet, in his brief, Appellant 

offers no discussion of any timeliness exception. Rather, he argues the 

merits of his underlying claims. This Court’s admonitions in Appellant’s prior 

appeal are equally applicable here:

[Appellant] cannot prevail on this appeal because he has failed 

to plead and prove in his brief that any timeliness exception 

applies. ... [Appellant’s] brief focuses solely upon the merits of 

his underlying claims for PCRA relief. We cannot reach those 

arguments if we lack jurisdiction to do so, and it is [Appellant’s] 

burden to establish that jurisdiction. Moreover, he plainly was 

on notice of his timeliness problem, because the PCRA court 

provided a lengthy, careful review of the foundation for an 

exception provided by [Appellant], concluding only after 

considerable analysis that [Appellant] had failed to establish that 

an exception applied. It was incumbent upon him to address 

that issue in his brief to this Court. [Appellant’s] failure to do so 

leaves us with no choice but to conclude that [his] instant PCRA 

petition was untimely and not subject to any exception. 

Consequently, the PCRA court and this Court lack jurisdiction to 

review its merits.
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Commonwealth v. Crise, 134 A.3d 490 (Pa. Super. 2015) (unpublished 

memorandum at 9-10) (emphasis in original; footnote and citation omitted).

Appellant again has not even attempted to meet his burden of 

convincing this Court that he is entitled to relief.1 Commonwealth v. 

Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (“It is an appellant’s burden to 

persuade us that the PCRA court erred and that relief is due.”); 

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (“We 

emphasize that it is the petitioner who bears the burden to allege and prove 

that one of the timeliness exceptions applies.”). This Court still will not 

make Appellant’s arguments for him. Commonwealth v. Hardy, 918 A.2d 

766, 771 (Pa. Super. 2007) (“This Court will not act as counsel and will not 

develop arguments on behalf of an appellant.”). 

Order affirmed. 

 

1

In his reply brief, Appellant contends that our Supreme Court’s decision in 

Wolfe is to be applied retroactively. Appellant’s Reply Brief at 1 

(unnumbered). Assuming that this is an attempt to invoke the timeliness 

exception for newly-recognized, retroactively-applicable constitutional rights, 

it fails. The Wolfe Court did not recognize a new constitutional right, let 

alone hold that any such right applied retroactively; rather, it merely applied 

Alleyne to hold that a particular mandatory minimum sentence was 

unconstitutional. Furthermore, our Supreme Court has held that Alleyne

itself does not apply retroactively to cases on collateral review. 

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

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2017