Com. v. Barlow, R. ( 2016 )

J-S64001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROGER LEON BARLOW
Appellant No. 328 EDA 2016
Appeal from the PCRA Order Entered December 17, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0001166-2009
BEFORE: STABILE, SOLANO, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2016
Appellant, Roger Leon Barlow, appeals pro se from the December 17,
2015 order dismissing his petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
On September 17, 2010, Appellant pled guilty to eight counts of arson
and one count of criminal mischief.1 On that same date, the trial court
imposed an aggregate 12½ to 25 years or incarceration followed by ten
years of probation. Appellant did not file a direct appeal.
Appellant filed the instant PCRA petition on July 21, 2015, well over
three years after his judgment of sentence became final. The PCRA court
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3301 and 3304, respectively.
J-S64001-16
appointed counsel on September 14, 2015. On October 22, 2015, counsel
filed a no merit letter and petition to withdraw pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 479
A.2d 568 (Pa. Super. 1984) (en banc). On November 12, 2015, the PCRA
court filed notice of its intent to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 920. Appellant responded on December 1, 2015.
On December 17, 2015, the PCRA court entered an order dismissing
Appellant’s petition and permitting counsel to withdraw. This timely appeal
followed.
The PCRA requires any petition thereunder to be filed within one year
of the date on which his judgment of sentence becomes final. 42 Pa.C.S.A.
§ 9545(b)(1); Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010). If, as is presently the case, the petition is facially untimely, the
petitioner must plead and prove the applicability of one of the three
statutory exceptions to the one-year time bar. Id. Failure to do so deprives
the PCRA court of jurisdiction. This is true even if the petition challenges the
legality of the petitioner’s sentence. Commonwealth v. Fahy, 737 A.2d
214, 223 (Pa. 1999).
One exception to the PCRA’s one-year time bar is the recognition, by
the United States Supreme Court, of a new constitutional right that is held
by that Court to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(iii). To this
end, Appellant argues his sentence is illegal pursuant to Alleyne v. United
-2-
J-S64001-16
States, 133 S. Ct. 2151 (2013) and Commonwealth v. Hopkins, 117 A.3d
247 (Pa. 2015).
In Alleyne, the United States Supreme Court held that any fact, other
than a prior conviction, triggering a mandatory minimum sentence must be
found beyond a reasonable doubt by a jury. Alleyne, 133 S. Ct. at 2163-
64. In Hopkins, the Pennsylvania Supreme Court relied on Alleyne to
strike down the Drug Free School Zones Act, 18 Pa.C.S.A. § 6317. Section
6317 imposed mandatory minimum sentences for certain controlled
substance offenses that occurred within a specified distance of a school or
playground. 18 Pa.C.S.A. § 6317.
As noted above, Appellant did not file a direct appeal and his judgment
of sentence became final in October of 2010. The Pennsylvania Supreme
Court has held that Alleyne does not apply retroactively to cases pending
on collateral review. Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016). We have held that Alleyne applies only to cases pending on
direct appeal as of June 17, 2013, the date the United States Supreme Court
handed down the opinion in Alleyne. Commonwealth v. Newman, 99
A.3d 86, 90 (Pa. Super. 2014). Alleyne therefore does not apply to
Appellant’s case, and he cannot rely on it to meet the requirements of
§ 9545(b)(1)(iii).
Appellant argues that his petition is timely under Hopkins because he
filed it within 60 days of that decision, in accordance with § 9545(b)(2) of
-3-
J-S64001-16
the PCRA. Hopkins does not apply because Appellant was not sentenced
under § 6317. Indeed, the record of the sentencing proceeding does not
confirm that Appellant received any mandatory minimum sentence.
Appellant therefore did not salvage the timeliness of his petition by filing it
within 60 days of the Hopkins decision.
In summary, Appellant’s PCRA petition is facially untimely and he has
failed to plead and prove the applicability of any timeliness exception. We
therefore affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
-4-