Case Information

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

DAVID LEE GROVER, JR.,

Appellant No. MDA 2016 Appeal from the Order April 28, 2016 the Court of Common Pleas Huntingdon County Criminal Division at No.: CP- 31 -CR- 0000054 -2010

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.* FILED OCTOBER

MEMORANDUM BY PLATT, J.:

Appellant, David Lee Grover, Jr., appeals pro se from the order dismissing his second pursuant Post Conviction Relief Act (PCRA), Pa.C.S.A. §§ -9546, as untimely. affirm. relevant facts procedural history of this case are follows.

On January jury convicted involuntary deviate sexual intercourse (IDSI), statutory sexual assault, aggravated indecent assault, corruption of minors, indecent assault.' Appellant's conviction stems from his sexual relationship with then -fifteen -year -old girl, when he thirty -nine years old, over four -month period. May 19, 2011, the * Retired Senior Judge assigned to the Superior Court.

' §§ 3123(a)(7), 3122.1, 3125(a)(8), 6301(a)(1), and 3126(a)(8), respectively.

trial court sentenced Appellant aggregate term of incarceration of not less than ten nor more than twenty years.2 This Court affirmed judgment of sentence on April 9, 2012. (See Grover, 48 A.3d 471 Super. 2012) (unpublished memorandum)). Appellant did not file a petition allowance of our Supreme Court. October 22, 2012, Appellant filed pro se first PCRA

Appointed counsel subsequently filed amended petition, which the PCRA court denied on January 21, 2015, following hearing. A panel of this Court (See affirmed PCRA court's order on November 2015. Grover, A.3d 503 2015) (unpublished memorandum)).

Appellant filed instant pro se petition on March 14, 2016. On March 2016, the court issued notice of its intent dismiss the hearing untimely. See Pa.R.CrimP. 907(1). After consideration Appellant's pro se response, entered its order dismissing the on April 2016. timely appealed. Pursuant court's order, Appellant timely The record reflects sentenced mandatory minimum term incarceration of ten years the IDSI count. 9718(a)(1) (providing mandatory minimum term of incarceration for IDSI conviction); (see also Sentencing Order, 5/19/11, unnumbered page

J-S77042-16

concise statement of errors complained on on June 14, 2016.3 See Pa.R.A.P. 1925(b). The court entered opinion on July 2016, stating that lacked jurisdiction consider the of the petition because it was failed to plead or prove any exception PCRA's timeliness requirement. See Pa.R.A.P. 1925(a); (see also Court Opinion, 7/07/16, at -4). also noted Appellant's citation Alleyne v. United States, 133 S.Ct. 2151 (2013),4 stated that decision does not provide him basis for relief. (See Ct. Op., 3). appeal, raises the following questions for our review:

I. Whether the trial court erred in not correcting illegal sentence that was rendered violation Appellant's statutory limit sentencing?

II. Whether the trial lacked subject matter jurisdiction from face indictment when rendering sentence outside of the indictment? deem concise statement on day it was dated rather

than on day it docketed (June 17, 2016), pursuant the prisoner mailbox rule. Brandon, 231, 234 n.5 (Pa. In Alleyne, United States Supreme Court held that under the Sixth Amendment States Constitution, jury must find beyond a reasonable doubt any facts increase mandatory minimum sentence. See Alleyne, supra, at 2158. In Wolfe, 140 A.3d 651 2016), Supreme Court held "that Section is irremediably unconstitutional its face, non -severable, void[,]" light of Alleyne. Wolfe, supra at 663.

J-S77042-16

III. Whether the trial erred in entering a civil judgement a civil trial and /or without putting the on notice of civil proceedings?

(Appellant's Brief, iii) (unnecessary capitalization omitted).5 begin by discussing timeliness of Appellant's instant PCRA . Crucial to the determination of any is the . .

timeliness of the underlying petition. Thus, we must first determine whether instant petition timely filed. The timeliness requirement for petitions is mandatory and jurisdictional nature, may not ignore it in order to reach petition. The question of whether a is timely raises question of law. Where petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

A is timely if it is "filed within year date the judgment [of sentence] becomes final." 42 Pa.C.S.A. § 9545(b)(1). "[A] judgment [of sentence] becomes final at the conclusion of direct review, including discretionary review the Supreme Court of the States the Supreme Court of Pennsylvania, or at expiration time seeking review." Pa.C.S.A. 9545(b)(3)... . Brown, 491, 499 -500 2016)

(case citations some quotation marks omitted).

In case, judgment of sentence became final on May 9, upon expiration time file petition for allowance of appeal with Supreme Court. Pa.R.A.P. 903(a); § 9545(b)(3). Because filed the instant petition March 14, 2016, letter this Court stating it filing brief because unsure what issue Appellant wants us address. (See Commonwealth's Letter, 8/31/16).

J-S77042-16 is untimely its face, and the lacked jurisdiction to review it

unless he pleaded and proved one statutory exceptions the time - bar. § 9545(b)(1)(i)- (iii).

Section 9545 provides only three limited exceptions that allow review of petition:

(i) the failure to raise claim previously the result interference by government officials the presentation of claim violation of the Constitution or laws of this or the Constitution or laws United States; (ii) the facts upon which the claim is predicated were unknown petitioner could have been ascertained by the exercise of due diligence; or

(iii) right asserted is constitutional right that was recognized by the Supreme Court of the States or the Supreme Court of Pennsylvania after time period provided in that court section and has been held by apply retroactively.

Id.

Any petition invoking exception must "be within [sixty] days of the date the claim could have been presented." Id. 9545(b)(2). "If [PCRA] determined be untimely, no exception has been pled and proven, the petition must be dismissed hearing because courts are without jurisdiction consider the of the petition." Jackson, A.3d 516, 519 Super. 2011), appeal denied, 47 A.3d 845 2012) (citation omitted). In addition, "it petitioner's burden to allege prove

J-S77042-16 timeliness exceptions applies." Commonwealth v. Robinson, 139 A.3d 178, 186 (Pa. 2016) (citation omitted).

Here, fails to acknowledge the untimeliness of his or applicability of any exception specifically argue to PCRA's jurisdictional time -bar. (See Appellant's Brief, at ^[1] -4). Therefore, Appellant has not met his burden of proving his untimely petition fits within three limited exceptions to time -bar. See Robinson, supra at 186.

Moreover, extent attempts invoke the newly recognized retroactively applied constitutional right exception at 9545(b)(1)(iii) by reference Alleyne, supra, (see Appellant's brief, at 2 -3), well -settled that Alleyne does invalidate mandatory minimum sentence when the claim raised untimely Miller, 102 A.3d (Pa. Further, "our Supreme Court recently opinion v. Washington, 2016) wherein it addressed retroactive effect Alleyne held 'that Alleyne does not apply . " Commonwealth retroactively cases pending collateral review. . . Whitehawk, WL at *4 Super. filed Aug. 24, 2016) (internal citation formatting provided).

In sum, we conclude court properly dismissed no exception time -bar pleaded or proven. See Brown, supra -500. Accordingly, we affirm order of the court. *7 J- S77042 -16

Order affirmed.

Judgment Entered.

J: seph D. Seletyn,

Prothonotary

Date: 10/24/2016