J-S77021-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUBAN L. DURHAM,

Appellant No. 391 MDA 2016

Appeal from the PCRA Order of January 27, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0002221-2012

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J: FILED DECEMBER 13, 2016

Appellant, Juban L. Durham, appeals pro se from the order entered on 

January 27, 2016, which dismissed his first petition filed pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On July 9, 2013, Appellant pleaded guilty at docket number CP-22-CR0002221-2012, to possession of a controlled substance with intent to deliver 

(“PWID”) and possession of drug paraphernalia.1 That day, the trial court 

sentenced Appellant to serve a term of four to ten years in prison for his 

PWID conviction. Appellant did not file a notice of appeal from his judgment 

of sentence.

____________________________________________

1 35 P.S. § 780-113(a)(30) and (32), respectively.
J-S77021-16

- 2 -

On April 22, 2015 – or, almost two years after Appellant was 

sentenced – Appellant filed a pro se PCRA petition. Within this petition, 

Appellant claimed that his sentence was illegal, as he was sentenced under a 

mandatory minimum sentencing statute that was rendered unconstitutional 

by Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013).

2

 

____________________________________________

2 Appellant claimed that he was sentenced under 18 Pa.C.S.A. 

§ 7508(a)(3)(ii), which states in relevant part:

A person who is convicted of violating section [35 P.S. 

§ 780-113(a)(30)] . . . where the controlled substance is 

coca leaves . . . shall, upon conviction, be sentenced to a 

mandatory minimum term of imprisonment and a fine as set 

forth in this subsection:

. . .

(ii) when the aggregate weight of the compound or 

mixture containing the substance involved is at least ten 

grams and less than 100 grams; three years in prison 

and a fine of $15,000 or such larger amount as is 

sufficient to exhaust the assets utilized in and the 

proceeds from the illegal activity. . . .

18 Pa.C.S.A. § 7508(a)(3)(ii).

There is no evidence that the Commonwealth provided Appellant with presentencing notice that it intended to proceed under the mandatory minimum 

sentencing statute. See 18 Pa.C.S.A. § 7508(b). Further, during 

sentencing, the Commonwealth explicitly declared that it was “waiving any 

mandatories” and the trial court never stated that it was imposing a 

mandatory minimum sentence. N.T. Sentencing Hearing, 7/9/13, at 4-5. 

Nevertheless, Appellant’s Sentencing Guideline Form states that Appellant 

received a mandatory minimum sentence under 18 Pa.C.S.A. 

§ 7508(a)(3)(ii). See Sentencing Guideline Form at 1. 
J-S77021-16

- 3 -

Since this was Appellant’s first PCRA petition, the PCRA court 

appointed counsel to represent Appellant. However, on August 31, 2015, 

appointed counsel 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). Appointed counsel argued that 

Appellant’s PCRA petition lacked arguable merit, as it was untimely and no 

exception to the PCRA’s one-year time-bar applied. See Petition to 

Withdraw, 8/31/15, at 1-2.

On November 23, 2015, the PCRA court granted counsel’s petition to 

withdraw and provided Appellant with notice that it intended to dismiss 

Appellant’s PCRA petition in 20 days, without holding a hearing. On January 

27, 2016, the PCRA court finally dismissed Appellant’s PCRA petition and 

Appellant filed a timely notice of appeal. We now affirm the dismissal of 

Appellant’s untimely PCRA petition.

“As a general proposition, we review a denial of PCRA relief to 

determine whether the findings of the PCRA court are supported by the 

record and free of legal error.” Commonwealth v. Eichinger, 108 A.3d 

821, 830 (Pa. 2014). 

Before this Court can address the substance of Appellant’s claim, we 

must determine if this petition is timely. 

[The PCRA requires] a petitioner to file any PCRA petition 

within one year of the date the judgment of sentence 

becomes final. A judgment of sentence becomes final at 

the conclusion of direct review . . . or at the expiration of 

time for seeking review.
J-S77021-16

- 4 -

. . .

However, an untimely petition may be received when the 

petition alleges, and the petitioner proves, that any of the 

three limited exceptions to the time for filing the petition, 

set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are 

met. A petition invoking one of these exceptions must be 

filed within [60] days of the date the claim could first have 

been presented. In order to be entitled to the exceptions to 

the PCRA’s one-year filing deadline, the petitioner must 

plead and prove specific facts that demonstrate his claim 

was raised within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some 

internal citations omitted) (internal quotations omitted).

In the present case, the PCRA court found Appellant’s petition to be 

untimely filed. Trial Court Order, 1/27/16, at 1. We agree. 

Appellant’s judgment of sentence became final on August 9, 2013, 

which was 31 days after Appellant was sentenced in open court and the time 

for filing a notice of appeal to this Court expired. See Pa.R.A.P. 903(a); 42 

Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final at the conclusion of 

direct review, including discretionary review in the Supreme Court of the 

United States . . . , or at the expiration of time for seeking the review”). 

The PCRA explicitly requires that a petition be filed “within one year of the 

date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). As such, 

Appellant was required to file his PCRA petition by August 9, 2014. Since 

Appellant did not file the current PCRA petition until April 22, 2015, 

Appellant’s petition is patently untimely and the burden thus fell upon 

Appellant to plead and prove that one of the enumerated exceptions to the 
J-S77021-16

- 5 -

one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); 

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to 

properly invoke a statutory exception to the one-year time-bar, the PCRA 

demands that the petitioner properly plead and prove all required elements 

of the relied-upon exception).

Here, Appellant purports to invoke the “newly recognized constitutional 

right” exception to the time-bar. This statutory exception provides:

(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:

. . .

(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.

. . .

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the 

claim could have been presented.

42 Pa.C.S.A. § 9545(b).

As our Supreme Court explained: 

Subsection (iii) of Section 9545(b)(1) has two requirements. 

First, it provides that 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 provided in this section. Second, it provides that 

the right “has been held” by “that court” to apply 

retroactively. Thus, a petitioner must prove that there is a 
J-S77021-16

- 6 -

“new” constitutional right and that the right “has been held” 

by that court to apply retroactively. The language “has 

been held” is in the past tense. These words mean that the 

action has already occurred, i.e., “that court” has already 

held the new constitutional right to be retroactive to cases 

on collateral review. By employing the past tense in writing 

this provision, the legislature clearly intended that the right 

was already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), 

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) 

(internal corrections omitted). Moreover, since the plain statutory language 

of section 9545 demands that the PCRA petition “allege” all elements of the 

statutory exception, it is clear that – to properly invoke the “newly

recognized constitutional right” exception – the petitioner must plead each of 

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

Within Appellant’s PCRA petition, Appellant claims that his sentence is 

illegal because he was sentenced to a mandatory minimum term of 

incarceration under 18 Pa.C.S.A. § 7508 and, in Alleyne, the United States 

Supreme Court effectively rendered Section 7508 unconstitutional.

This claim immediately fails, as Appellant did not raise his Alleyne

claim “within 60 days of the date the claim could have been presented.” 42 

Pa.C.S.A. § 9545(b)(2). Rather, the first time Appellant raised his Alleyne

claim was in his April 22, 2015 PCRA Petition – which was almost two years 

after the United States Supreme Court decided Alleyne.

3

 Thus, Appellant 

____________________________________________

3 The United States Supreme Court decided Alleyne on June 17, 2013. 
J-S77021-16

- 7 -

failed to properly plead the newly-recognized constitutional right exception 

to the PCRA’s one-year time-bar. See Commonwealth v. Boyd, 923 A.2d 

513, 517 (Pa. Super. 2007) (“[w]ith regard to [the newly-]recognized 

constitutional right [exception], . . . the [60-]day period begins to run upon 

the date of the underlying judicial decision”). 

Since Appellant did not attempt to plead any other exception to the 

time-bar, we conclude that Appellant’s petition is time-barred and that our 

“courts are without jurisdiction to offer [Appellant] any form of relief.”4 

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). 

Therefore, we affirm the PCRA court’s order dismissing Appellant’s PCRA 

petition without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/2016

____________________________________________

4 To the extent Appellant claims that his illegal sentencing claim is nonwaivable, we note that, in Commonwealth v. Fahy, our Supreme Court 

held: “[a]lthough legality of sentence is always subject to review within the 

PCRA, claims must still first satisfy the PCRA’s time limits or one of 

the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 

(Pa. 1999) (emphasis added).