J-S70035-14

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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DEVIN ALEXANDER,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1231 EDA 2014

Appeal from the PCRA Order Entered March 25, 2014

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1026581-1991

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 10, 2014

Devin Alexander (Appellant) appeals from an order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

On April 20, 1992, Appellant was convicted following a non-jury trial of 

burglary, criminal conspiracy, five counts of aggravated assault, and other 

related charges in connection with a home invasion. On July 30, 1992, 

Appellant was sentenced to an aggregate term of 35 to 70 years’ 

incarceration. This Court affirmed the judgment of sentence. 

Commonwealth v. Alexander, 636 A.2d 1206 (Pa. Super. 1993) 

(unpublished memorandum). Appellant filed a petition for allowance of 

appeal in our Supreme Court. The Court denied that petition on April 4, 

1994. Commonwealth v. Alexander, 644 A.2d 731 (Pa. 1994) (table).
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Appellant then filed a series of PCRA petitions, all of which were denied 

at the PCRA court level, with this Court affirming those orders. Appellant’s

latest PCRA petition, and the one at issue here, was filed pro se on May 18, 

2012. On July 10, 2012, the PCRA court issued notice pursuant to 

Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s petition as untimely 

filed without holding an evidentiary hearing. The court formally dismissed 

the petition on March 25, 2014,1and Appellant timely filed a notice of 

appeal.2

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the court’s rulings are supported by the evidence of 

record and free of legal error. Commonwealth v. Anderson, 995 A.2d 

1184, 1189 (Pa. Super. 2010). Under the PCRA, all petitions must be filed 

within one year of the date that the petitioner’s judgment became final, 

unless one of three statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1); 

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). For purposes 

of the PCRA, a judgment becomes final at the conclusion of direct review. 

42 Pa.C.S. § 9545(b)(3). “The PCRA’s time restrictions are jurisdictional in 

nature.” Chester, 895 A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, 

neither this Court nor the trial court has jurisdiction over the petition. 

 

1 The reason for the unacceptable twenty-month delay does not appear of 

record.

2 The PCRA court did not order Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925, and none was filed. 

The PCRA court did file an opinion pursuant to Pa.R.A.P. 1925(a).
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Without jurisdiction, we simply do not have the legal authority to address 

the substantive claims.’” Id. (quoting Commonwealth v. Lambert, 884 

A.2d 848, 851 (Pa. 2005)).

Appellant clearly filed his petition well over one year after his 

judgment became final. Thus, he untimely filed the petition, unless the 

petition alleged and Appellant proved one or more of the following:

(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).

In his PCRA petition and on appeal, Appellant contends that his 

petition fits under the exception found at subsection 9545(b)(1)(iii). 

Appellant asserts that in Lafler v. Cooper, 132 S.Ct. 1376 (2012), the 

United States Supreme Court announced a new constitutional right and that 

this new right not only renders his petition timely filed but also dictates that 

he receive PCRA relief.3

 

3
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In Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013), 

this Court held that Lafler did not create a new constitutional right. Thus, 

Lafler does not create a basis for which to apply subsection 9545(b)(1)(iii). 

Accordingly, the PCRA court properly concluded that Appellant’s petition was 

untimely filed without exception.4

 

Lafler involved a criminal defendant who elected to proceed to 

trial rather than plead guilty based upon counsel's advice that 

the Commonwealth would be unable to prove intent to kill 

because the defendant shot the victim below the waist. The 

defendant received a mandatory sentence of incarceration more 

than three times longer than had been offered by the 

Commonwealth in the initial plea agreement. It was uncontested 

that counsel's advice fell below the standard of adequate 

assistance of counsel guaranteed by the Sixth Amendment, 

applicable to the States through the Fourteenth Amendment. 

Commonwealth v. Lewis, 63 A.3d 1274, 1280 (Pa. Super. 2013) (internal 

quotations and citations omitted).

4 On August 11, 2014, Appellant filed with this Court an Application for PostSubmission Communication. In that petition, Appellant argued that his 

sentence is illegal pursuant to Alleyne v. United States, 131 S.Ct. 2151 

(2013). In Alleyne, the United States Supreme Court held that “any fact 

that increases the mandatory minimum sentence for a crime is an element 

that must be submitted to the jury and found beyond a reasonable doubt[.]” 

Commonwealth v. Munday, 78 A.3d 661, 665 (Pa. Super. 2013) (internal 

quotations omitted). However, in order to entertain a legality of the 

sentence claim, the court must have jurisdiction to do so.

It is generally true that this Court is endowed with the ability to 

consider an issue of illegality of sentence sua sponte. However, 

in order for this Court to review a legality of sentence claim, 

there must be a basis for our jurisdiction to engage in such 

review. As this Court recently noted, “[t]hough not technically 

waivable, a legality [of sentence] claim may nevertheless be lost 

should it be raised ... in an untimely PCRA petition for which no 

time-bar exception applies, thus depriving the court of 

jurisdiction over the claim. 
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2014

 

Commonwealth v. Miller, __ A.3d __, 2014 WL 4783558, at *5 (Pa. 

Super. filed September 26, 2014) (internal quotations and citations 

omitted). Because neither the PCRA court nor this Court has jurisdiction 

over Appellant’s untimely PCRA petition, we are not permitted to consider his 

legality of the sentence claim.