Com. v. Hopkins, G.

J-S72011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE J. HOPKINS
Appellant No. 2277 MDA 2015
Appeal from the PCRA Order December 10, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004161-2005
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED OCTOBER 25, 2016
Appellant, George J. Hopkins, appeals pro se from the order entered in
the Dauphin County Court of Common Pleas, which denied his second
petition filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.
§§ 9541-9546. On October 11, 2006, a jury convicted Appellant of two
counts of aggravated assault and one count each of firearms not to be
carried without a license, persons not to possess firearms, REAP, and false
identification to law enforcement authorities. On December 20, 2006, the
court sentenced Appellant to an aggregate term of 150-360 months’
imprisonment, which allegedly included a mandatory minimum sentence.
This Court affirmed the judgment of sentence on November 30, 2007, and
Appellant did not seek further review with our Supreme Court. See
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S72011-16
Commonwealth v. Hopkins, 944 A.2d 793 (Pa.Super. 2007).
Appellant filed his first PCRA petition on January 2, 2008, which the
PCRA court denied on October 2, 2008. On July 16, 2015, Appellant filed the
current pro se PCRA petition. The PCRA court issued Rule 907 notice on
December 10, 2015, and dismissed the petition as untimely on December
31, 2015. Appellant timely filed a pro se notice of appeal. The PCRA court
ordered Appellant to file a Rule 1925(b) statement, and Appellant timely
complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.
denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA
petition must be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at
the conclusion of direct review or at the expiration of time for seeking
review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the
timeliness provisions in the PCRA allow for very limited circumstances under
which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
A petitioner asserting a timeliness exception must file a petition within sixty
days of the date the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2). When asserting the newly created constitutional right exception
under Section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’
constitutional right and that the right ‘has been held’ by that court to apply
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retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super.
2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012).
Instantly, Appellant’s judgment of sentence became final on December
30, 2007, upon expiration of the time to file a petition for allowance of
appeal with the Pennsylvania Supreme Court. See Pa.R.A.P. 1113.
Appellant filed his current petition on July 16, 2015, over seven years later;
thus, the petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant attempts to invoke the “new constitutional right” exception to the
PCRA time bar by citing the U.S. Supreme Court’s decision in Alleyne v.
U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and the
Pennsylvania Supreme Court’s decision in Commonwealth v. Hopkins, ___
Pa. ___, 117 A.3d 247 (2015). Neither the U.S. Supreme Court nor the
Pennsylvania Supreme Court, however, has held that Alleyne or its progeny
apply retroactively on collateral review. See Commonwealth v. Miller,
102 A.3d 988 (Pa.Super. 2014) (holding that even if Alleyne announced
new constitutional right, neither our Supreme Court nor United States
Supreme Court has held that Alleyne applies retroactively, which is fatal to
appellant’s attempt to satisfy “new constitutional right” exception to
timeliness requirements of PCRA). See also Commonwealth v.
Washington, ___ Pa. ___, 142 A.3d 810 (2016) (holding Alleyne does not
apply retroactively on collateral review to challenge to mandatory minimum
sentence as “illegal”). Therefore, Appellant’s petition remains time barred,
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and the PCRA court lacked jurisdiction to review it. See Hackett, supra.Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2016
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