J-S48009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v. VAUGHN E. JAMES Appellant No. 1012 WDA 2015

Appeal from the PCRA Order May 18, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000990-2011

CP-02-CR-0004395-2011 CP-02-CR-0015955-2008

BEFORE: BOWES, DUBOW AND MUSMANNO, JJ. MEMORANDUM BY BOWES, J: FILED AUGUST 19, 2016 Vaughn E. James appeals from the May 18, 2015 orde r dismissing his second PCRA petition. We affirm. This appeal encompasses three underlying criminal cases. At criminal action 15955 of 2008, on March 15, 2011, Appellant tendered a negotiated guilty plea. In exchange for a two to six year ter m, Appellant pled guilty to one count each of possession of a controlled substa nce with intent to deliver (“PWID), obstruction of justice, possession of mari juana, and resisting arrest and two counts of possession of a controlled substa nce. On July 18, 2011, at case number 990 of 2011, which was initiated by the Office of the Attorney General of Pennsylvania, Appellant entered a negotiated guilty pleaJ-S48009-16

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to two counts of corrupt organizations, thirteen co unts of delivery of a controlled substance (including cocaine, heroin, an d marijuana), eight counts of PWID, and one count each of conspiracy, prohibit ed sale or transfer of a firearm, carrying an unlicensed firearm, and receiv ing stolen property. The negotiated sentence in that case was eleven to twen ty-two years of incarceration followed by a probationary term of a maximum of three months. There was also a five-year mandatory term of imprisonment that was to be imposed in that action, but it had to run concurrently to the above-described sentence. That same day, July 18, 2011, at action number 439 5 of 2011, Appellant pled guilty to two counts of PWID (cocain e) in return for imposition of a mandatory minimum term and withdrawal of two o ther offenses. The sentence at this matter was to be imposed concurren tly with that at 990 of 2011. Appellant accepted the mandatory minimum sen tences to protect his girlfriend, his co-defendant, from a jail term. On July 18, 2011, Appellant was sentenced in all t hree cases in accordance with the above-negotiated agreement with the exception that his maximum sentence in the 2008 case was reduced as it was set at four rather than six years. In addition, the court gran ted the Commonwealth restitution for the amount that it expended to purc hase drugs pursuant to controlled buys, which amounted to $14,440 in the 2 011 cases and $12,864.96 in the 2008 action.J-S48009-16

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Appellant did not file a direct appeal. On March 2 , 2012, Appellant filed a timely pro se PCRA petition at all three docket numbers. Counsel was appointed and filed a petition to withdraw pursuant to Commonwealth v.
Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc ). Counsel was allowed to withdraw and PCRA relief was denied. Appellant filed a pro se notice of appeal and raised numerous issues on appeal, including a claim that t he restitution award was improper. We agreed with that position on the basi s that the imposition of restitution violated the terms of the plea agreemen t. Upon remand, the trial court struck all restitution. On April 14, 2015, Appellant filed his second peti tion seeking postconviction relief by arguing that his sentence was unconstitutional as it included application of mandatory minimum sentences that were unconstitutional under Alleyne v. United States , 133 S.Ct. 2151 (2013).
In Alleyne , the United States Supreme Court held that any fac t, other than the existence of a prior conviction, that invokes a pplication of a mandatory minimum sentence must be submitted to a jury and pr oven beyond a reasonable doubt. Various mandatory minimum senten cing provisions, including the one applied herein, have been declare d void and unconstitutional under Alleyne , but the cases were direct appeals from imposition of a judgment of sentence.J-S48009-16

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On April 22, 2015, the PCRA court herein issued not ice of its intent to dismiss the petition without a hearing, and, on May 19, 2015, it denied PCRA relief. This pro se appeal followed. Appellant raises these positions for our
review: 1. Is Appellant's sentence illegal and unconstituti onal pursuant to recent decisions declaring 18 Pa.C.S.A. §7508 uncon stitutional [under Alleyne , supra ]? 2. Since Appellant's sentence is unconstitutional i s Appellant entitled to resentencing in that his sentence is il legal? Appellant’s brief at 4. We first outline our standard of review: Under the applicable standard of review, we mu st determine whether the ruling of the PCRA court is supported b y the record and is free of legal error. Commonwealth v. Marshall , 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA court's cre dibility determinations, when supported by the record, are b inding on this Court. Commonwealth v. Johnson , 600 Pa. 329, 966 A.2d 523, 532, 539 (2009). However, this Court applies a de novo standard of review to the PCRA court's legal conclu sions. Commonwealth v. Rios , 591 Pa. 583, 920 A.2d 790, 810 (2007). Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011). Accord Commonwealth v. Bardo , 105 A.3d 678, 685 (Pa. 2014) (“If supported by the record, the PCRA court's credibility determinat ions and factual findings are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.”). Before we can address the merits of any of Appellan t’s positions, we must determine whether Appellant’s April 14, 2015 P CRA petition was timelyJ-S48009-16

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filed as that issue implicates our jurisdiction. Commonwealth v. Miller , 102 A.3d 988 (Pa.Super. 2014). If a PCRA petition is untimely, “neither this Court nor the trial court has jurisdiction over the petition.” Id . at 992 (citation omitted); see Commonwealth v. Chester , 895 A.2d 520, 522 (Pa. 2006) (“[I]f a PCRA petition is untimely, neit her this Court nor the trial court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substan tive claims.”). Any PCRA petition has to be filed within one year o f the date the defendant’s judgment becomes final unless an except ion to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must determine when Appellant’s judgment of sentence bec ame final. “A judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the Un ited States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). In this case, s ince Appellant did not file a direct appeal from his July 18, 2011 judgment of se ntence, that sentence became final thirty days later, or on August 17, 20 11. Appellant had until August 17, 2012, to file a timely PCRA petition, an d his April 14, 2015 petition is untimely. There are three exceptions to the one-year time bar of § 9545: 1) governmental officials interfered with presentation of the claim; 2) the facts underlying the claim were unknown to the defendant and could not haveJ-S48009-16

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been discovered by the exercise of due diligence; a nd 3) the right asserted is a constitutional right that was recognized by ou r Supreme Court or the United States Supreme Court after a defendant’s jud gment of sentence became final and the Supreme Court or the United St ates Supreme Court has held that right to apply retroactively. 42 Pa. C.S. § 9545(b)(1)(i-iii). To invoke an exception, the petitioner must plead and prove it. Commonwealth v. Beasley , 741 A.2d 1258, 1261-62 (Pa. 1999) (petitioner has burden to plead and prove exception s). In addition, any exception must be raised within sixty days of the d ate the claim could have been presented. 42 Pa.C.S. § 9545(b)(2). Herein, Appellant does not specifically invoke the newly-recognized constitutional right exception to the PCRA time req uirements. He simply notes that the mandatory minimum sentencing provisi on in question, as well as others, have been struck down in their entirety as unconstitutional under Alleyne and that his sentence is unconstitutional and illeg al. He also observes that legality of sentence issues cannot be waived. Our Supreme Court recently ruled that Alleyne does not apply retroactively to attacks upon mandatory minimum sen tences advanced on collateral review. Commonwealth v. Washington , 2016 WL 3909088 (Pa. July 19, 2016). Under Washington , Appellant cannot, by means of a PCRA petition, attack the validity of his sentence on th e bases that it includedJ-S48009-16

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imposition of mandatory minimum sentences that were rendered unconstitutional under Alleyne. Additionally, an attack to the legality of a senten ce, even though nonwaivable, still must be brought pursuant to a timel y PCRA petition. See Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999) (although legality of sentence is always subject to review within PCRA , claims must still first satisfy the PCRA’s time limits or a statutory excep tion). Thus, Appellant’s assertion that he is serving an illegal sentence fa ils to overcome the PCRA’s time bar. Moreover, even to the extent that we treat Appellan t’s citation to Alleyne as leveling a basis to circumvent the time bar, hi s claim fails for another reason. Appellant failed to satisfy the th reshold requirement of asserting the statutory exception within sixty days of the date the claim could be presented. See 42 Pa.C.S. § 9545(b)(2). The United States Supreme Court decided Alleyne on June 17, 2013, and Appellant did not filed his petition seeking relief under its provisi ons until April 14, 2015, nearly two years after that case was decided. Appe llant cannot obtain relief under Alleyne under this untimely filed PCRA petition. Hence, w e affirm the denial of relief. Order affirmed.J-S48009-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/19/2016