J-S64031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CARLTON BRYANT,

                         Appellant                   No. 141 EDA 2016


               Appeal from the PCRA Order December 7, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0209461-1998
                          CP-51-CR-0902151-1997
                          CP-51-CR-0902181-1997
                          CP-51-CR-0904981-1997

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED DECEMBER 05, 2016

      Appellant Carlton Bryant appeals pro se from the December 7, 2015,

order entered in the Court of Common Pleas of Philadelphia County

dismissing his petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      The relevant facts and procedural history are as follows: Appellant

entered a plea of nolo contendere to ten counts of robbery, three counts of

criminal conspiracy, and one count of carrying a firearm without a license.

On November 6, 2000, the trial court imposed an aggregate sentence of

19½ to 40 years in prison, to be followed by 10 years of probation.




*Former Justice specially assigned to the Superior Court.
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       Appellant did not file an appeal to this Court; however, on July 27,

2001, he filed a timely pro se PCRA petition, and counsel was appointed. In

an amended PCRA petition, counsel sought to have Appellant’s direct appeal

rights reinstated nunc pro tunc due to the ineffective assistance of trial

counsel.    On June 12, 2002, the PCRA court granted Appellant relief, and

Appellant filed a counseled direct appeal nunc pro tunc.        On July 23, 2004,

this Court affirmed Appellant’s judgment of sentence. Commonwealth v.

Bryant, No. 3559 EDA 2003 (Pa.Super. filed 7/23/04) (unpublished

memorandum).         Appellant did not file a petition for allowance of appeal with

our Supreme Court.

       On August 11, 2014, Appellant filed a pro se PCRA petition, which was

considered to be his first PCRA petition,1 and the PCRA court appointed

Douglas Earl, Esquire, (“PCRA counsel”) to represent Appellant. On July 23,

2015, PCRA counsel filed a Turner/Finley2 no-merit letter and petition

seeking to withdraw his representation. Therein, PCRA counsel averred that

Appellant’s August 11, 2014, petition was untimely filed and, alternatively,



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1
   “This Court has explained that when a PCRA petitioner's direct appeal
rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent
PCRA petition will be considered a first PCRA petition[.]” Commonwealth
v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (citations omitted).
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),                             and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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the issues which Appellant wished to raise lack merit.       He further averred

that he could not find any other issues of merit.

       On October 2, 2015, the PCRA court, indicating it agreed with PCRA

counsel’s assessment of the case as set forth in his Turner/Finley no-merit

letter, provided Appellant with notice of its intent to dismiss the PCRA

petition without an evidentiary hearing.         On October 13, 2015, Appellant

filed a pro se response to the court’s notice of dismissal arguing, inter alia,

that PCRA counsel “misinterpreted his PCRA petition.”

       On December 7, 2015, the PCRA court entered an order dismissing

Appellant’s PCRA petition, and Appellant filed a timely pro se notice of

appeal.3     By order filed on January 8, 2016, the PCRA court directed

Appellant to file a statement pursuant to Pa.R.A.P. 1925(b), Appellant timely

complied on January 25, 2016, and the PCRA court filed a responsive

Pa.R.A.P. 1925(a) opinion concluding that Appellant’s PCRA petition was

untimely filed.



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3
  Upon initial review of the instant appeal, we concluded that the record
failed to reveal whether the PCRA court had permitted PCRA counsel to
withdraw. Accordingly, on August 23, 2016, while retaining jurisdiction, we
remanded this matter to the PCRA court for a determination as to PCRA
counsel’s status. Upon remand, the PCRA court held a hearing at which the
Commonwealth, PCRA counsel, and Appellant were present. Following the
hearing, on October 31, 2016, the PCRA court filed an opinion explaining
that, in its order filed on December 7, 2015, it had intended to grant PCRA
counsel’s petition to withdraw his representation.



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      Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).    “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”         Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall 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, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of the 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).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government    officials with   the

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                  presentation of the claim in violation of the Constitution
                  or the law of this Commonwealth or the Constitution or
                  law 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 Pennsylvania after
                  the time period provide in this section and has been
                  held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, “the PCRA limits the reach of the exceptions by providing that a

petition invoking any of the exceptions must be filed within 60 days of the

date the claim first could have been presented.” Commonwealth v.

Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42

Pa.C.S.A.     §   9545(b)(2).     “When   the   exception   asserted   is   Section

9545(b)(1)(iii), the 60–day rule runs from the date of the germane

decision.” Commonwealth v. Secreti, 134 A.3d 77, 80 (Pa.Super. 2016)

(citation omitted).

      In the case before us, this Court affirmed Appellant’s judgment of

sentence on July 23, 2004, and Appellant did not file a petition for allowance




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of appeal with our Supreme Court. Accordingly, his judgment of sentence

became final on Monday, August 23, 2004,4 when the thirty-day time period

for filing a petition for allowance of appeal with our Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113.           Appellant had one year

from that date, or until August 23, 2005, to file a timely PCRA petition. See

42 Pa.C.S.A. § 9545(b).          However, Appellant did not file his instant PCRA

petition until August 11, 2014, and thus, it is patently untimely.       See 42

Pa.C.S.A. § 9545(b)(1).

       This does not end our inquiry, however, as Appellant alleges he is

entitled to the “new constitutional right” exception based on the U.S.

Supreme Court’s decisions in Alleyne v. United States, 133 S.Ct. 2151

(2013), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), as well as

the Pennsylvania Supreme Court’s decision in Commonwealth v. Dickson,

591 Pa. 364, 918 A.2d 95 (2007).

       With regard to Appellant’s attempt to invoke the “new constitutional

right” exception on the basis of Alleyne,5 the U.S. Supreme Court filed its

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4
  The thirtieth day fell on Sunday, August 22, 2004, thus extending the time
for filing a petition for allowance of appeal to Monday, August 23, 2004.
See 1 Pa.C.S.A. § 1908.
5
  In Alleyne, the U.S. Supreme Court held that the constitutional jury trial
right requires any fact, other than a prior conviction, that triggers a
mandatory minimum sentence to be proven beyond a reasonable doubt
before the finder of fact. Alleyne is an application of the Court's prior
pronouncement in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), which
(Footnote Continued Next Page)


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opinion on June 17, 2013; however, Appellant filed his instant PCRA petition

on August 11, 2014. Thus, he did not meet his initial burden of proving he

presented his claim within 60 days of when the claim first could have been

presented. See Secreti, supra.

      Moreover, although in Commonwealth v. Newman, 99 A.3d 86

(Pa.Super. 2014) (en banc), this Court noted that Alleyne will be applied to

cases pending on direct appeal when Alleyne was issued, we have declined

to construe Alleyne as applying retroactively to cases in which the judgment

of sentence has become final. As we noted in Commonwealth v. Miller,

102 A.3d 988 (Pa.Super. 2014):

      Even assuming that Alleyne did announce a new constitutional
      right, 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. This is fatal to [an] [a]ppellant's argument
      regarding the PCRA time-bar. This Court has recognized that a
      new rule of constitutional law is applied retroactively to cases on
      collateral review only if the United States Supreme Court or our
      Supreme Court specifically holds it to be retroactively applicable
      to those cases.

Miller, 102 A.3d at 995 (citations omitted). Indeed, our Supreme Court

recently held that “Alleyne does not apply retroactively to cases pending on

collateral review.” Commonwealth v. Washington, ___ Pa. ___, 142 A.3d

                       _______________________
(Footnote Continued)

ruled that any fact that increases a maximum sentence must be found by
the factfinder beyond a reasonable doubt or admitted by the defendant
during his guilty plea.




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810, 820 (2016).          Accordingly, Appellant is not entitled to the “new

constitutional right” exception on the basis of Alleyne.

       With regard to Appellant’s attempt to invoke the “new constitutional

right” exception on the basis of Montgomery, which was issued on January

25, 2016, while Appellant’s instant appeal was pending, we dispose of this

claim by noting that Montgomery made Miller v. Alabama, 132 S.Ct.

2455 (2012), fully retroactive to cases on state collateral review.     Miller

held that it was unconstitutional to impose a mandatory term of life

imprisonment without parole on juvenile homicide offenders.        However, in

the case sub judice, Appellant was neither convicted of homicide nor

sentenced to a term of life in prison without parole. Thus, Appellant has not

established he is entitled to relief on the basis of Montgomery.

       Finally, with regard to Appellant’s attempt to invoke the “new

constitutional right” exception on the basis of Dickson,6 our Supreme Court

issued its decision on March 29, 2007; however, as indicated supra,

Appellant did not file his instant PCRA petition until August 11, 2014. Thus,

Appellant did not meet his initial burden of proving he presented his claim




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6
   In Dickson, our Supreme Court held that the statute imposing a
mandatory sentence enhancement on a person who visibly possesses a
firearm or firearm replica during commission of a crime of violence does not
apply to unarmed co-conspirators.



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within 60 days of when the claim first could have been presented.          See

Secreti, supra. 7

       For all of the foregoing reasons, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2016




____________________________________________


7
  To the extent Appellant suggests his sentence is illegal, and thus not
subject to the PCRA’s time restrictions, we note that our Supreme Court has
specifically held that “[a]lthough legality of sentence is always subject to
review within the PCRA, [legality of sentencing] claims must still first satisfy
the PCRA’s time limits or one of the exceptions thereto.” Commonwealth
v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999).



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