J.S17044/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COU RT OF : PENNSYLVANIA : v. : : JUSTIN NICHOLSON, : : Appellant : : No. 1555 WDA 2015 Appeal from the PCRA Order September 24, 2015 in the Court of Common Pleas of Fayette County Crim inal Division

at No(s): CP-26-CR-0002034-2007 BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED MARCH 11, 2016 Appellant, Justin Nicholson, appeals from the order entered in the Fayette County Court of Common Pleas dismissing, as untimely, his first Post

Conviction Relief Act 1 (“PCRA”) petition. Appellant argues he received a mandatory minimum sentence that is unconstitutional under Alleyne v.

U.S. , 133 S. Ct. 2151 (2013). We affirm. The relevant procedural history follows. On Febr uary 1, 2010, Appellant pleaded nolo contendere to robbery, 2 terroristic threats, 3 theft by

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 3701(a)(1)(ii).

3 18 Pa.C.S. § 2706(a)(1).J.S17044/16

- 2

-

unlawful taking, 4 receiving stolen property, 5 simple assault, 6 and resisting

arrest. 7 On March 3, 2010, the trial court sentenced Appel lant to an aggregate term of seven and one-half to fifteen yea rs’ incarceration. The court informed Appellant, “ [a] BB gun qualifies as a deadly weapon under 18 [Pa.S.C. §] 2301 and qualifies as a firearm for the mandatory sentencing purposes pursuant to 42 Pa.C.S.[ §] 9712(E).” N.T. Sentencing Hr’g, 3/3/10, at 5-6. Appellant did not file a direct ap peal. On March 27, 2015, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, and counsel filed an amend ed petition on June 10, 2015, wherein Appellant argued, inter alia , his sentence was illegal in light of the United States Supreme Court’s decision in Alleyne and this Court’s

decision in Commonwealth v. Valentine , 101 A.3d 801, (Pa. Super. 2014), appeal denied , 124 A.3d 309 (Pa. 2015). 8 The PCRA court scheduled a video hearing on Appellant’s amended petition for September 24, 2015, and dismissed the petition the same day. PCRA Ct. Order, 9/24/15.

4 18 Pa.C.S. § 3921(a).

5 18 Pa.C.S. § 3925(a).

6 18 Pa.C.S. § 2701(a)(3).

7 18 Pa.C.S. § 5104.

8 The Court in Valentine applied the principles of Alleyne and this Court’s subsequent decisions and held Section 9712 is uncon stitutional. See Valentine , 101 A.3d at 812.J.S17044/16

- 3

-

Appellant filed a timely notice of appeal and a cou rt ordered Pa.R.A.P. 1925(b) statement. The PCRA court filed a responsi ve opinion. On appeal, Appellant raises the following issue fo r our consideration.

Whether the holding of the United States Supreme Court in Alleyne . . . applies retroactively on postconviction review? Appellant’s Brief at 3. 9 Appellant argues that Alleyne applies retroactively to petitioners on post-conviction review. Id. at 12. Appellant further contends, “requiring him to serve an illegal sentence is manifestly unfa ir” and in violation of his constitutional rights. Id. at 12-13. For the reasons that follow, we hold Appellant is not entitled to relief.

Our standard of review is well-settled:

In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination is supported by the record and free of legal error. The scope o f review is limited to the findings of the PCRA court and the evidence of record, viewed in the light mos t favorable to the prevailing party at the trial leve l. . . . [T]his Court reviews the PCRA court’s legal conclusions de novo

.

9 Appellant also argues the PCRA court erred in dete rmining he was not subject to a mandatory minimum sentence because he pleaded “guilty.” Appellant’s Brief at 3, 6. The certified record do es not include a transcript of the PCRA hearing, and the PCRA court did not file a n opinion at the time of its dismissal of Appellant’s petition suggesting th e mandatory minimum did not apply to Appellant. However, in its Rule 1925( a) opinion, the PCRA court noted Appellant was subject to the Section 9712 man datory sentencing provision. PCRA Ct. Op., 10/19/15, at 1. At sente ncing, the trial court also referred to Section 9712. N.T., 3/3/10, at 5-6. T herefore, the record does not support this claim, and we need not address it.J.S17044/16

- 4

-

Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014) (citations omitted). As a prefatory matter, “we must first consider the timeliness of Appellant’s PCRA petition because it implicates the jurisdiction of this Court and the PCRA court. . . . [W]hen ‘a PCRA petition is untimely, neither this Court nor the trial court has jurisdiction over the petition.’” Id. (citations omitted). The time for filing a PCRA is codified a t 42 Pa.C.S. § 9545(b)(1):

(b) Time for filing the petition.— (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (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 laws of this Commonwealth or the Constitution or laws of the United States; (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).J.S17044/16

- 5

-

This Court has considered whether Alleyne entitles an untimely PCRA petitioner to relief under Section 9545(b)(1)(iii):

Even assuming that Alleyne did announce a new constitutional right, neither our Supreme Court, no r the United States Supreme Court has held that Alleyne is to be applied retroactively to cases in which the judgment of sentence had become final. This is fatal to Appellant’s argument regarding the PCRA time-bar. This Court has recognized that a new rule of constitutional law is applied retroacti vely to cases on collateral review only if the United St ates Supreme Court or our Supreme Court specifically holds it to be retroactively applicable to those ca ses. Miller , 102 A.3d at 995 (citations omitted). Instantly, Appellant was sentenced on March 3, 2010 , and he did not file a direct appeal. Therefore, his judgment of s entence became final on April 5, 2010, 10 and he had a year from that date to file a timely PCRA petition. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(1). Appella nt filed his PCRA petition on March 27, 2015, and it is facially untimely. Appellant’s position is that Alleyne applies retroactively, and Section 9545(b)(1)(iii) entitles him to PCRA relief. Appellant’s Brief at 12. However, Miller held

that Alleyne does not meet Section 9545(b)(1)(iii)’s exception to the timebar. Miller , 102 A.3d at 995. Therefore, the PCRA court corre ctly dismissed Appellant’s untimely PCRA petition, and we affirm. See id. at 992, 995.

10 We note the 30 th day following the imposition of sentence was Frida y, April 2, 2010. The Superior Court was closed on th at date in observance of Good Friday. Therefore, Appellant had until Monday , April 5, 2010 to file a timely appeal. See 1 Pa.C.S. § 1908.J.S17044/16

- 6

-

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 3/11/2016