J-S40013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HINDOVEI SENESSIE-MIDDLETON

Appellant No. 2885 EDA 2015

Appeal from the PCRA Order August 31, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0007175-2012

BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 20, 2016

Hindovei Senessie-Middleton appeals from the August 31, 2015 order 

dismissing his second PCRA petition as untimely filed. We affirm. 

On May 25, 2012, Darby Borough police officers found Appellant in 

possession of a Bersa Firestorm .380 caliber gun that had its serial number 

obliterated. Police also recovered from Appellant’s shoes nine clear glassine 

bags containing marijuana. Appellant was charged with various offenses, 

including persons not to possess firearms. 18 Pa.C.S. § 6105. On January 

18, 2013, Appellant entered a negotiated guilty plea to that offense, a 

second-degree felony carrying a maximum sentence of ten years 

incarceration. Appellant was sentenced that same day to the negotiated 

term of imprisonment of five to ten years. No mandatory minimum 
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sentence was involved in Appellant’s sentencing; he received the statutorilyauthorized maximum sentence for a second-degree felony. The record also 

establishes that Appellant’s prior record score was repeat felony offender so 

that the sentence in question was also within the sentencing guidelines. 

Appellant did not file a direct appeal. 

On August 4, 2014, Appellant filed a PCRA petition suggesting that he 

was entitled to relief under Alleyne v. United States, 133 S.Ct. 2151 

(2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000). In the latter 

case, the United States Supreme Court held, “[A]ny fact (other than prior 

conviction) that increases the maximum penalty for a crime must be charged 

in an indictment, submitted to a jury, and proven beyond a reasonable 

doubt.” Id. at 476 (quoting Jones v. United States, 526 U.S. 227, 243, n. 

6 (1999)). Alleyne applied the holding of Apprendi in the mandatory 

minimum sentencing context. Under Alleyne, any fact, other than a prior 

conviction, that results in the imposition of a mandatory minimum sentence 

must be submitted to a jury and proven beyond a reasonable doubt. 

After Appellant filed his PCRA petition, counsel was appointed. 

Counsel presented a petition to withdraw and no-merit letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). In 

his no-merit letter, counsel concluded that the August 4, 2014 PCRA petition 

was untimely. On January 23, 2015, the trial court granted counsel’s 
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application to withdraw and issued notice of its intent to dismiss the petition 

without a hearing. The petition was dismissed on February 20, 2015. 

On July 29, 2015, Appellant filed a second pro se PCRA petition, 

averring that he was sentenced pursuant to an invalid mandatory minimum 

sentence. Appellant invoked Commonwealth v. Hopkins, 117 A.3d 247 

(Pa. 2015), wherein our Supreme Court, pursuant to Alleyne, struck down 

the mandatory minimum sentencing provision contained in 18 Pa.C.S. § 

6317.

Appellant’s July 29, 2015 PCRA petition was dismissed on August 21, 

2015, and this appeal followed. Appellant raises one issue: “Whether the 

PCRA court committed an error of law and abused its discretion when it 

denied relief where the court had jurisdiction pursuant to 42 Pa.C.S. § 

9545(b)(1)(ii), as the clarification/interpretation via Commonwealth v. 

Hopkins, 117 A.3d 247 (Pa. 2015), dates back to the day of enactment.” 

Appellant’s brief at 3. We first outline our standard of review:

 Under the applicable standard of review, we must determine 

whether the ruling of the PCRA court is supported by the record 

and is free of legal error. Commonwealth v. Marshall, 596 Pa. 

587, 947 A.2d 714, 719 (2008). The PCRA court's credibility 

determinations, when supported by the record, are binding 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 conclusions. 

Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810 

(2007).
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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 determinations 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 Appellant’s position, we must first 

determine whether Appellant’s July 29, 2015 PCRA petition was timely 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, neither this Court nor the trial 

court has jurisdiction over the petition. Without jurisdiction, we simply do 

not have the legal authority to address the substantive claims.”). 

Any PCRA petition must be filed within one year of the date the 

defendant’s judgment becomes final unless an exception to the one-year 

time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we initially 

determine when Appellant’s judgment of sentence became final. “A 

judgment becomes 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 the 

review.” 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not file a 
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direct appeal from his January 18, 2013 judgment of sentence, it became 

final on February 17, 2013. He had one year, or until February 17, 2014, to 

file a timely PCRA petition, and his July 29, 2015 petition is untimely. There 

are three exceptions to the one-year time bar of § 9545:

(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)(i-iii). “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. § 9545(b)(2).

Appellant invokes the newly-discovered facts exception. He argues 

that his PCRA petition is timely under § 9545(b)(1)(ii) due to “the Supreme 

Court decision in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).” 

Appellant’s brief at 7. However, it is settled that “section 9545(b)(1)(ii) 

applies only if the petitioner has uncovered facts that could not have been 

ascertained through due diligence, and judicial determinations are not facts.” 

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011). Appellant’s 
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invocation of the newly-discovered facts exception based upon the 

dissemination of the Hopkins decision therefore fails. 

Appellant also argues that Alleyne and its progeny should be 

retroactively applied, obstensibly maintaining that the newly-recognized 

constitutional right exception of § 9545(b)(1)(iii) is applicable herein. In 

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014), we specifically 

ruled that an Alleyne claim does not fall within § 9545(b)(1)(iii). That 

provision requires that the court announcing the new constitutional right 

hold that its constitutional decision is to be applied retroactively. Neither the 

United States Supreme Court nor our Supreme Court has ruled that Alleyne

is retroactive. Likewise, none of the cases applying Alleyne has been 

considered to apply retroactively to PCRA petitioners by the United States 

Supreme Court or the Pennsylvania Supreme Court. Thus, this petition is 

not saved from untimeliness by a retroactivity analysis regarding Alleyne

and its progeny. 

So that Appellant will cease seeking relief under case law that 

constantly emanates from this Court and our Supreme Court pursuant to 

Alleyne, we stress the following to Appellant. He is not entitled to relief 

either under Alleyne or any of the case law applying it. No mandatory 

minimum sentence was applied herein. Appellant merely was sentenced to 

the statutory maximum sentence permitted for a second-degree felony after 
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he pled guilty to the elements of a crime that was graded as a seconddegree felony. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2016