J-S57005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LONNIE DAY, JR.

                         Appellant                    No. 32 EDA 2017


             Appeal from the PCRA Order November 30, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-1223441-1981


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

JUDGMENT ORDER BY PANELLA, J.                  FILED SEPTEMBER 26, 2017

      Appellant, Lonnie Day, Jr., is a serial filer of PCRA petitions. This pro

se appeal is from the order dismissing as untimely his fifth petition. We

affirm.

      The relevant facts and procedural history of this case are as follows.

Following a jury trial, Appellant was convicted of second-degree murder,

criminal conspiracy, and possession of an instrument of crime. On July 27,

1983, Appellant was sentenced to life imprisonment. This Court affirmed his

judgment of sentence on August 6, 1985. Appellant did not file a petition for

allowance of appeal with the Pennsylvania Supreme Court. Appellant filed his

first PCRA petition on July 24, 1986. The PCRA court subsequently denied

Appellant’s petition, and this Court affirmed. Appellant filed several

subsequent PCRA petitions, all of which were denied as untimely.
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      Appellant filed the instant petition on February 11, 2016, challenging

his conviction under Alleyne v. United States, 133 S.Ct. 2151 (2013). The

Commonwealth filed a motion to dismiss. The PCRA court issued Rule 907

notice, and Appellant filed a response. Nevertheless, the PCRA court

dismissed Appellant’s petition. Appellant timely filed a notice of appeal to

this Court.

      Prior to reaching the merits of Appellant’s claims, we must first

consider the timeliness of his PCRA petition. See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review. 42 Pa.C.S.[A.] §
      9545(b)(3).      The   PCRA’s     timeliness    requirements  are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

      Instantly,   Appellant’s   judgment   of   sentence   became   final   on

September 5, 1985, when his time for seeking a petition for allowance of

appeal with the Pennsylvania Supreme Court expired. His fifth PCRA petition,

filed over thirty years later on February 11, 2016, is patently untimely. Thus,

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the PCRA court lacked jurisdiction to review Appellant’s petition unless he

was able to successfully plead and prove one of the statutory exceptions to

the PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      A petitioner asserting one of these exceptions must file a petition

within 60 days of the date the claim could have first been presented. See 42

Pa.C.S.A. § 9545(b)(2). Exceptions to the time-bar must be pled in the

petition, and may not be raised for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See

also Pa.R.A.P. 302(a) (providing that issues not raised before the lower

court are waived and cannot be raised for the first time on appeal).

      Appellant has failed to successfully plead any of the exceptions to the

PCRA’s time-bar. Appellant attempts to plead in his PCRA petition an

exception to the PCRA time bar under 42 Pa.C.S.A. § 9545(b)(1)(iii); i.e., a

newly announced constitutional right. There, Appellant claims the United

States Supreme Court’s holding in Montgomery v. Louisiana, 136 S.Ct.

718 (2016), requires Alleyne be applied retroactively to all cases on

collateral review.

      There are two major problems with this assertion. First, “Alleyne does

not   apply   retroactively   to   cases   pending      on   collateral   review….”

Commonwealth         v.   Washington,      142   A.3d   810,   820    (Pa.   2016).

Additionally, Montgomery’s holding is specifically limited to juvenile




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offenders. See Montgomery, 136 S.Ct. at 736. As Appellant was not a

juvenile at the time of his crime, this case is wholly inapplicable to him.

       Second, Appellant entirely abandons his Montgomery argument on

appeal.      Instead,     Appellant    uses     his   brief     to    repeatedly      cite    to

Commonwealth v. Vasquez,                  744    A.2d      1280      (Pa.    2000),   for    the

proposition that a challenge to the legality of the sentence is not subject to

the PCRA’s time-bar. Appellant is confused. Vasquez concerned a direct

appeal. See id., at 1281 (“In this direct appeal…”). This case is on collateral

review.

       In any event, even if Appellant had raised this argument in his PCRA

petition, “in order for this Court to review a legality of sentence claim, there

must    be    a   basis    for   our   jurisdiction   to      engage    in    such    review.”

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citation

omitted). Put another way, “[t]hough not technically waivable, a legality [of

sentence] claim may nevertheless be lost should it be raised ... in an

untimely PCRA petition for which no time-bar exception applies, thus

depriving the court of jurisdiction over the claim.” Id. (citation omitted;

brackets in original). Here, there would be no basis for our jurisdiction to

review this claim.

       We find the PCRA court properly dismissed Appellant’s petition as

untimely, and we affirm.

       Order affirmed.


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J-S57005-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2017




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