J-S24032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EDWARD LAYMAN MONROE                       :
                                               :
                      Appellant                :   No. 1523 WDA 2016

                    Appeal from the PCRA Order May 6, 2016
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000217-1997


BEFORE:      PANELLA, STABILE, JJ., and STEVENS, P.J.E*

MEMORANDUM BY STEVENS, P.J.E.:                                 FILED APRIL 19, 2017

        Appellant, Edward Layman Monroe, appeals pro se from the order

entered in the Court of Common Pleas of Fayette County dismissing his

“Memorandum         of   Fact   and    Law     Retroactively    Relief,   Resentencing,

Modification and Reconsideration of Sentencing (Evidentiary Hearing),”

which the lower court treated as a second petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After a careful

review, we affirm.

        The relevant facts and procedural history are as follows: On November

19, 1997, a jury convicted Appellant, who was tried with two co-defendants,

Stanley T. Brown and Ronnie Austin, of first-degree murder, retaliation
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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against a witness, and criminal conspiracy.1             He was sentenced to life

imprisonment, and following a direct appeal, this Court affirmed his

judgment of sentence.           Commonwealth v. Monroe, No. 801 Pittsburgh

1998 (Pa.Super. filed March 23, 1999) (unpublished memorandum).

Appellant filed a petition for allowance of appeal to our Supreme Court,

which was denied on September 30, 1999.               Commonwealth v. Monroe,

No. 308 WD 1999 (Pa. filed Sept. 30, 1999) (per curiam order). Appellant

did not file a petition for a writ of certiorari with the U.S. Supreme Court.

        On August 30, 2000, Appellant filed a timely pro se PCRA petition, and

following the appointment of counsel, the PCRA court denied the PCRA

petition. This Court affirmed. Commonwealth v. Monroe, No. 2030 WDA

2000 (Pa.Super. filed Sept. 11, 2001) (unpublished memorandum).

        On March 24, 2016,2 Appellant filed a pro se document entitled

“Memorandum         of   Fact    and   Law     Retroactively   Relief,   Resentencing,

Modification and Reconsideration of Sentencing (Evidentiary Hearing).”

Therein, Appellant presented challenges to the legality of his sentence.

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 4953, and 903, respectively.
2
  Appellant’s pro se document was docketed on March 29, 2016; however,
the record indicates Appellant handed the document to prison authorities on
March 24, 2016. Accordingly, pursuant to the prisoner mailbox rule, we
shall deem the document to have been filed on March 24, 2016. See
Commonwealth v. Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing
the prisoner mailbox rule).




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Further, he indicated that, to the extent the document constituted a second

PCRA petition, he was entitled to the timeliness exception set forth in 42

Pa.C.S.A. § 9545(b)(1)(iii), 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).

       The lower court treated this pro se document as a second PCRA

petition,3 and on April 6, 2016, the court provided Appellant with notice of

its intention to dismiss without an evidentiary hearing on the basis the

petition was untimely filed and did not qualify for any of the timeliness

exceptions under the PCRA. On or about April 28, 2016, Appellant filed a

pro se response requesting the lower court treat his document as a habeas

corpus petition. By order entered on May 6, 2016, the lower court dismissed

Appellant’s petition under the auspices of the PCRA, and this timely appeal

followed.4    The lower court directed Appellant to file a Pa.R.A.P. 1925(b)

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3
  After this Court affirmed the denial of Appellant’s first PCRA petition,
Appellant filed several petitions seeking the expungement of charges and/or
his criminal record. “We note that a petition for expungement does not fall
within the remedies afforded by the PCRA and does not constitute a PCRA
petition.” Commonwealth v. Rainey, 139 A.3d 261, 264 n.2 (Pa.Super.
2016).
4
  We note that Appellant filed his notice of appeal directly with this Court,
and pursuant to the prisoner mailbox rule, based on the envelope’s postage
stamp, we deemed the appeal to have been filed on Monday, June 6, 2016.
See Patterson, supra. By order entered on July 12, 2016, we find
Appellant’s appeal to be timely filed, but transmitted it to the lower court for
entry on the lower court’s docket.



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statement, Appellant timely filed a statement, and the lower court filed a

statement in lieu of opinion pursuant to Pa.R.A.P. 1925(a).

      At the outset, we conclude the lower court properly treated Appellant’s

instant petition under the auspices of the PCRA. The PCRA provides: “The

action established in this subchapter shall be the sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies for the same purpose that exist when this subchapter takes effect,

including habeas corpus[.]” 42 Pa.C.S.A. § 9542. Thus, where a petitioner’s

claim is cognizable under the PCRA, regardless of the title given to the

petition,     the   court   must   analyze       the   petition   under    the   PCRA.

Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013).

      In his instant petition, Appellant challenged the legality of his

sentence. This claim falls under the auspices of the PCRA. Commonwealth

v. Jackson, 30 A.3d 516 (Pa.Super. 2011).              Accordingly, the lower court

properly treated Appellant’s       “Memorandum of Fact and Law Retroactively

Relief,     Resentencing,   Modification    and    Reconsideration    of   Sentencing

(Evidentiary Hearing)” as a PCRA petition; more particularly, the lower court

properly treated the petition as Appellant’s second PCRA petition.

      With regard to petitions filed under the PCRA, as this Court has

observed:

      The filing mandates of the PCRA are jurisdictional in nature and
      are strictly construed. The question of whether a petition is
      timely raises a question of law. Where the petitioner raises
      questions of law, our standard of review is de novo and our

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      scope of review plenary. An untimely petition renders this Court
      without jurisdiction to afford relief.

Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must

determine whether Appellant’s March 24, 2016, petition was timely filed

under the PCRA.

      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).

      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
               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


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               the time period provided 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).

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

sentence on March 23, 1999, and our Supreme Court denied Appellant’s

petition for allowance of appeal on September 30, 1999. Appellant did not

file a petition for a writ of certiorari with the U.S. Supreme Court. Therefore,

his judgment of sentence became final on or about December 30, 1999,

ninety days after our Supreme Court denied Appellant’s petition for

allowance of appeal and the time for filing a petition for writ of certiorari

expired.   See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13 (providing “a

petition for a writ of certiorari seeking review of a judgment of a lower state

court that is subject to discretionary review by the state court of last resort

is timely when it is filed with the Clerk within 90 days after entry of the

order denying discretionary review [ ]”).         Appellant, thus, had until

approximately December 30, 2000, to file a timely PCRA petition.            His

instant petition, filed on March 24, 2016, is patently untimely.

      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, supra, and Montgomery, supra.

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      To invoke the “new constitutional right” exception of 42 Pa.C.S.A. §

9545(b)(1)(iii), the petitioner must plead and prove that “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.A. § 9545(b)(1)(iii).      Moreover, 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).

      With regard to the application of Montgomery, we find Appellant met

the initial 60-day threshold.   The U.S. Supreme Court filed its opinion in

Montgomery on January 25, 2016, and Appellant filed the instant PCRA

petition on March 24, 2016. Accordingly, Appellant asserted his timeliness

exception within sixty days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2); Commonwealth v. Secreti, 134 A.3d 77, 80

(Pa.Super. 2016) (“When the exception asserted is Section 9545(b)(1)(iii),

the 60–day rule runs from the date of the germane decision.”) (citation

omitted)).

      However, we conclude the dictates of Montgomery are inapplicable to

Appellant. In Montgomery, the High Court held that its ruling in Miller v.

Alabama, 132 S.Ct. 2455 (2012), is to be given retroactive effect on

collateral review. Miller, which was issued on June 25, 2012, held that it is

unconstitutional for state courts to impose an automatic life sentence


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without possibility of parole upon a homicide defendant for a murder

committed while the defendant was a juvenile.       In the case sub judice,

Appellant, who was born in October of 1959, was not a juvenile when he

committed his crimes in June of 1995. Accordingly, Appellant has failed to

plead and prove he is entitled to the new constitutional right exception in

light of Montgomery.

      Appellant additionally asserts that     he   is entitled to   the   “new

constitutional right” exception of 42 Pa.C.S.A. § 9545(b)(1)(iii), in light of

the U.S. Supreme Court’s opinion in Alleyne, wherein the High Court held

that any fact, other than a prior conviction, that triggers application of a

mandatory minimum sentence must be proven beyond a reasonable doubt

before the factfinder.

      We conclude Appellant has not met the initial 60-day threshold.

Alleyne was decided on June 17, 2013, and Appellant filed the instant PCRA

petition on March 24, 2016.     Accordingly, Appellant has not asserted his

timeliness exception within sixty days of the date the claim could have been

presented.    42 Pa.C.S.A. § 9545(b)(2).    Further, to the extent Appellant

believes the Supreme Court’s retroactivity analysis in Montgomery renders

Alleyne retroactive, we note that neither the U.S. Supreme Court nor the

Pennsylvania Supreme Court has held that Alleyne applies retroactively to

untimely PCRA petitions.    Indeed, our Supreme Court recently held that

Alleyne does not apply retroactively to cases on collateral review where, as


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here, the petitioner’s judgment of sentence had already become final.

Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016).5

       Accordingly, because Appellant has not established any of the

timeliness exceptions to the PCRA time-bar, the lower court lacked

jurisdiction to address his claims, and we affirm the dismissal of Appellant's

pro se petition.

       Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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5
  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). That is, an illegal
sentencing claim does not operate as an independent exception to the
PCRA’s jurisdictional time-bar.



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