J-S36033-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                    v.                     :
                                           :
TRACY ERIC TUCKER,                         :
                                           :
                  Appellant                :     No. 1948 WDA 2014

           Appeal from the PCRA Order Entered October 29, 2014
              in the Court of Common Pleas of Indiana County,
            Criminal Division, at No(s): CP-32-CR-0000211-2004

BEFORE:     PANELLA, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED JULY 28, 2015

      Tracy Eric Tucker (Appellant) appeals from the October 29, 2014 order

which dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In 2005, Appellant was sentenced pursuant to negotiated guilty pleas

to several crimes including third-degree murder.      Appellant filed no direct

appeal. Appellant’s first two PCRA petitions resulted in no relief.

      Appellant filed the petition that is the subject of the instant appeal on

July 14, 2014. Therein, he claimed that he is entitled to relief in the form of

resentencing because his sentence is unconstitutional under Alleyne v.

United States, ––– U.S.       –––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)

(holding that a fact which triggers the imposition of a mandatory minimum

sentence is an element of the crime and must, therefore, be determined


*Retired Senior Judge assigned to the Superior Court.
J-S36033-15


beyond a reasonable doubt by a jury). After the issuance and withdrawal of

a notice of intent to dismiss the petition without a hearing, followed by

additional briefing by the parties, the PCRA court entered an opinion and

order denying Appellant’s petition based upon lack of jurisdiction. Appellant

timely filed a notice of appeal.1

      The timeliness of a post-conviction petition is jurisdictional.      See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.     Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available.          42

Pa.C.S. § 9545(b) and (c).




1
  Although the PCRA court ordered Appellant to file a concise statement of
errors complained of on appeal, Appellant filed no document so titled.
However, he did make his issue clear in the notice of appeal itself, as well as
in motions he filed within the 21 days following the concise statement order.
Accordingly, a finding of waiver under Pa.R.A.P. 1925(b)(4) is unwarranted.


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       It is clear that Appellant’s 2014 petition is facially untimely: his

judgment of sentence became final in 2005. In the PCRA court, Appellant

alleged that his petition satisfies the following timeliness exception: “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)(iii).

       However, in his brief to this Court, Appellant acknowledges that this

exception is inapplicable because neither Supreme Court has held that

Alleyne applies retroactively to cases on collateral review. Appellant’s Brief

at 6. Appellant is correct. See Commonwealth v. Miller, 102 A.3d 988,

995 (Pa. Super. 2014) (holding that Alleyne cannot satisfy the section

9545(b)(1)(iii) exception because “neither our Supreme Court, nor the

United States Supreme Court has held that Alleyne is to be applied

retroactively to cases in which the judgment of sentence had become final”).

       Appellant requests that this Court hold his case “in abeyance” until our

Supreme Court renders a decision in Commonwealth v. Hopkins, No. 98

MAP 2013, 2015 WL 3949099 (Pa. filed June 15, 2015). Appellant’s Brief at

6-7.   Hopkins was decided while this appeal was pending, but it is not

helpful to Appellant. The Hopkins ruling provides that the portions of the




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mandatory minimum sentencing statutes which violate Alleyne are not

severable; the retroactivity of Alleyne was not addressed by the Court.

      Should an appropriate Court hold that the Alleyne decision is a new

right with retroactive application, Appellant may seek to avail himself of the

timeliness exception found at 42 Pa.C.S. § 9545(b)(1)(iii).       Now, we are

faced with a PCRA petition filed more than one year after Appellant’s

judgment of sentence became final with no applicable timeliness exception

alleged. Accordingly, we hold that the PCRA court properly determined that

it was without jurisdiction to entertain the merits of Appellant’s claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/28/2015




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