J-S41042-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

MICHAEL L. HOWARD

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2718 EDA 2017

Appeal from the PCRA Order August 4, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002767-2010

BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 18, 2018

Appellant, Michael L. Howard, appeals pro se from the order entered in 

the Philadelphia County Court of Common Pleas, which denied his second 

petition brought pursuant to the Post-Conviction Relief Act (“PCRA”) at 42 

Pa.C.S.A. §§ 9541-9546. We affirm. 

The relevant facts and procedural history of this case are as follows. On 

August 9, 2011, the court convicted Appellant of possession with intent to 

distribute, possession of a controlled substance, possession of drug 

paraphernalia, possession of an instrument of crime, conspiracy, and persons 

not to possess firearms. On September 23, 2011, the court sentenced 

Appellant to an aggregate term of 15 to 30 years’ imprisonment. This Court 

affirmed the judgment of sentence on March 19, 2013, and our Supreme Court 

denied Appellant’s petition for an allowance of appeal on August 28, 2013. 
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See Commonwealth v. Howard, 64 A.3d 1082 (Pa.Super. 2013), appeal 

denied, 621 Pa. 114, 74 A.3d 118 (2013). 

On November 4, 2013, Appellant timely filed his first PCRA petition pro 

se and an amended pro se petition on August 28, 2014, that raised a 

sentencing claim under Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 

2151, 186 L.Ed.2d 314 (2013). The PCRA court appointed counsel, who filed 

an amended PCRA petition, without the Alleyne challenge, on September 29, 

2014. On June 22, 2015, the PCRA court issued notice of its intent to dismiss, 

per Pa.R.Crim.P. 907; and, on August 7, 2015, the PCRA court denied relief. 

This Court affirmed the denial of PCRA relief on March 28, 2017. See 

Commonwealth v. Howard, 168 A.3d 351 (Pa.Super. 2017) (unpublished 

memorandum). On May 23, 2017, Appellant filed pro se the current PCRA 

petition, which asserted the governmental interference exception to the PCRA 

time-bar and claimed the first PCRA court, and this Court on appeal, failed to 

address the Alleyne challenge Appellant had raised in his pro se amended 

first PCRA petition back in 2014. The PCRA court issued Rule 907 notice on 

June 9, 2017, and denied relief on August 4, 2017. On August 14, 2017, 

Appellant timely filed a pro se notice of appeal. The PCRA court did not order 

and Appellant did not file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant raises the following issue for our review:

WHETHER THE PCRA COURT ERRED BY DISMISSING 

[APPELLANT’S] PCRA PETITION CONCLUDING THAT 
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APPELLANT DID NOT MEET THE GOVERNMENTAL 

[INTERFERENCE] SECTION AND FACTS UNKNOWN 

SECTION WHERE THE APPELLATE COURT OVERLOOKED 

APPELLANT’S ILLEGAL SENTENCE CLAIM UNDER ALLEYNE

WHICH WAS PRESERVED BY APPELLANT IN THE PREVIOUS 

APPEAL?

(Appellant’s Brief at 5). 

Notwithstanding the phrasing of Appellant’s issue presented on appeal, 

he argues he properly raised a challenge to his sentence under Alleyne in his 

pro se amended first PCRA petition in 2014, but counsel’s amended PCRA 

petition excluded that issue; and this Court overlooked it and did not address 

it sua sponte on appeal. Appellant contends these omissions constitute 

governmental interference to meet that exception to the PCRA time-bar. 

Appellant submits he raised this claim in his current PCRA petition, which he 

filed within 60 days of this Court’s March 28, 2017 decision on appeal. 

Appellant avers his illegal sentence challenge is non-waivable because he 

previously raised it in the PCRA court. Appellant concludes his sentence under 

Section 9712.1 is unconstitutional per Alleyne and Commonwealth v. 

Newman, 99 A.3d 86 (Pa.Super. 2014), and this Court must vacate the

sentence. We cannot agree. 

As a preliminary matter, the timeliness of a PCRA petition is a 

jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 

2016). No court has jurisdiction to review an untimely PCRA petition. 

Commonwealth v. Albrecht, 606 Pa. 64, 994 A.2d 1091 (2010). A PCRA 

petition must be filed within one year of the date the underlying judgment 
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becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3). The three 

statutory exceptions to the PCRA timeliness provisions allow for very limited 

circumstances under which the late filing of a petition will be excused. 42 

Pa.C.S.A. § 9545(b)(1). To meet the governmental interference exception to 

the PCRA time-bar, a petitioner must plead and prove that government 

officials prevented him from raising a claim. 42 Pa.C.S.A. § 9545(b)(1)(i); 

Commonwealth v. Crawley, 559 Pa. 9, 12, 739 A.2d 108, 110 (1999). See 

also Commonwealth v. Yarris, 557 Pa. 12, 24-25, 731 A.2d 581, 577 

(1999) (stating appointed counsel does not qualify as government official for 

purposes of Section 9545(b)(1)(i)). Importantly, a court must have a 

legitimate jurisdictional basis to entertain a legality of sentence claim, even if 

a sentencing error is obvious. Commonwealth v. Jackson, 30 A.3d 516

(Pa.Super. 2011), appeal denied, 616 Pa 634, 47 A.3d 845 (2012). If the 

claim is raised in a patently untimely PCRA petition, the petitioner must first 

overcome certain jurisdictional hurdles to correct his sentence. Id. at 522. 

Instantly, this Court affirmed the judgment of sentence on March 19, 

2013, and our Supreme Court denied Appellant’s petition for an allowance of 

appeal on August 28, 2013. Appellant sought no further review, so the 

judgment of sentence became final on or about November 26, 2013, following 
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expiration of the 90-days for filing a petition for certiorari with the U.S. 

Supreme Court. See U.S.Sup.Ct. Rule 13. Appellant filed his current PCRA 

petition on May 23, 2017, which is patently untimely. 

To resolve his timeliness problem, Appellant asserted the governmental 

interference exception to the PCRA time-bar to assert his Alleyne issue. 

Appellant, however, failed to prove the exception because government 

officials did not prevent him from raising an Alleyne claim. See 42 Pa.C.S.A. 

§ 9545(b)(1)(i); Crawley, supra. Although Appellant introduced an Alleyne

question in his amended pro se first PCRA petition, his appointed counsel 

abandoned it, and counsel’s decision does not qualify as interference of 

government officials. See Yarris, supra. Likewise, this Court’s failure to 

address the claim sua sponte in its disposition on appeal from the denial of 

the first PCRA petition does not satisfy the governmental interference 

exception to the statutory time-bar. See 42 Pa.C.S.A. § 9545(b)(1). Thus, 

Appellant’s current petition remains time-barred, and the PCRA court lacked 

jurisdiction to review it.1 See Zeigler, supra; Jackson, supra. Accordingly, 

we affirm. 

Order affirmed. 

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1 The fact that the Commonwealth asked for a mandatory minimum at the 

sentencing hearing is not dispositive. The certified record makes clear in the 

written sentencing order that Appellant actually received no mandatory 

minimum sentence, which explains why counsel abandoned the argument in 

the first PCRA petition and this Court did not raise it sua sponte on appeal 

from the denial of the first PCRA petition. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/18