J-S23006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOSEPH ROBERT MANN, JR.

                        Appellant                  No. 2204 EDA 2016


                 Appeal from the PCRA Order June 15, 2016
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0003611-2005
                          CP-15-CR-0003612-2005


BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 29, 2017

      Appellant, Joseph Robert Mann, Jr., appeals pro se from the order

entered on June 15, 2016, which dismissed his second petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.     We

affirm.

      In 2007, a jury found Appellant guilty of eight counts of rape, 12

counts of involuntary deviate sexual intercourse, 21 counts of indecent

assault, eight counts of criminal attempt to commit rape, four counts of

incest, and three counts each of endangering the welfare of children and

corruption of minors. On June 22, 2007, the trial court sentenced Appellant

to serve an aggregate term of 31 ½ to 63 years in prison for his convictions.

We affirmed Appellant’s judgment of sentence on August 28, 2008;

Appellant did not file a petition for allowance of appeal with our Supreme
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Court.     Commonwealth v. Mann, 961 A.2d 1278 (Pa. Super. 2008)

(unpublished memorandum) at 1-20.

        On August 3, 2009, Appellant filed his first PCRA petition. Following a

remand, the PCRA court denied Appellant post-conviction collateral relief

and, on November 25, 2014, this Court affirmed the PCRA court’s order.

Commonwealth v. Mann, 113 A.3d 358 (Pa. Super. 2014) (unpublished

memorandum) at 1-6, appeal denied, 114 A.3d 416 (Pa. 2015).                Our

Supreme Court denied Appellant’s petition for allowance of appeal on April 7,

2015. Id.

        Appellant filed the current PCRA petition – his second – on March 29,

2016.     Within the petition, Appellant claimed that, in Montgomery v.

Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), the United States Supreme

Court created a new constitutional right that entitled him to relief.

Appellant’s Second PCRA Petition, 3/29/16, at 3-4.      Specifically, Appellant

claimed, in accordance with Montgomery, his “sentence is illegal and

unconstitutional in violation of his 8th Amendment [right] to be free from

cruel and unusual punishment.” Id. at 4.

        On May 11, 2016, the PCRA court issued Appellant notice, pursuant to

Pennsylvania Rule of Criminal Procedure 907, of its intent to dismiss

Appellant’s petition in 20 days, without holding a hearing.       PCRA Court

Order, 5/11/16, at 1-5; Pa.R.Crim.P. 907(1).      Appellant responded to the

PCRA court’s notice and repeated his claim that Montgomery provided him




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with an avenue for relief. See Appellant’s Response to the Rule 907 Notice,

5/23/16, at 1.

      The PCRA court finally dismissed Appellant’s PCRA petition on June 15,

2016 and Appellant filed a timely notice of appeal.          We now affirm the

dismissal of Appellant’s patently untimely, serial PCRA petition.

      “As a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.”    Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014).

      Before this Court can address the substance of Appellant’s claims, we

must determine if this petition is timely.

        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final.    A judgment of sentence becomes final at
        the conclusion of direct review . . . or at the expiration of
        time for seeking review.

                                      ...

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition,
        set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
        met. A petition invoking one of these exceptions must be
        filed within [60] days of the date the claim could first have
        been presented. In order to be entitled to the exceptions to
        the PCRA’s one-year filing deadline, the petitioner must
        plead and prove specific facts that demonstrate his claim
        was raised within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some

internal citations omitted) (internal quotations omitted).


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      In the present case, the PCRA court found Appellant’s petition to be

untimely filed. PCRA Court Opinion, 6/15/16, at 1-5. We agree. Appellant’s

judgment of sentence became final at the end of the day on Monday,

September 29, 2008, which was 30 computable days after this Court

affirmed Appellant’s judgment of sentence and the time for filing a petition

for allowance of appeal with our Supreme Court expired. See 42 Pa.C.S.A.

§ 9545(b)(3) (“A judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States . . .

, or at the expiration of time for seeking the review”); see also Pa.R.A.P.

1113(a); 1 Pa.C.S.A. § 1908 (computation of time).       The PCRA explicitly

requires that a petition be filed “within one year of the date the judgment

becomes final.”   42 Pa.C.S.A. § 9545(b)(1).    As such, Appellant had until

September 29, 2009 to file a timely PCRA petition. Since Appellant filed his

current petition on March 29, 2016, the current petition is patently untimely

and the burden thus fell upon Appellant to plead and prove that one of the

enumerated exceptions to the one-year time-bar applied to his case. See

42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,

1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-

year time-bar, the PCRA demands that the petitioner properly plead and

prove all required elements of the relied-upon exception).

      Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:


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        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

                                     ...

           (iii) 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.

                                     ...

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

42 Pa.C.S.A. § 9545(b).

     As our Supreme Court explained:

        Subsection (iii) of Section 9545(b)(1) has two requirements.
        First, it provides 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 provided in this section. Second, it provides that
        the right “has been held” by “that court” to apply
        retroactively. Thus, a petitioner must prove that there is a
        “new” constitutional right and that the right “has been held”
        by that court to apply retroactively. The language “has
        been held” is in the past tense. These words mean that the
        action has already occurred, i.e., “that court” has already
        held the new constitutional right to be retroactive to cases
        on collateral review. By employing the past tense in writing
        this provision, the legislature clearly intended that the right
        was already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted). Moreover, since the plain statutory language


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of section 9545 demands that the PCRA petition “allege” all elements of the

statutory exception, it is clear that – to properly invoke the “newly

recognized constitutional right” exception – the petitioner must plead each of

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

       Within Appellant’s second PCRA petition, Appellant claims that his

sentence “is illegal and unconstitutional and subject to correction based on

the holding of Montgomery v. Louisiana, [___ U.S. ___, 136 S.Ct. 718

(2016)].”     Appellant’s Second PCRA Petition, 3/29/16, at 4.     Appellant’s

claim fails because Montgomery concerned the retroactive application of

Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) – and Miller held

that the Eighth Amendment prohibited mandatory life sentences without

parole for juveniles convicted of a homicide offense.    See Montgomery,

136 S.Ct. at 725. In this case, Appellant was not a juvenile when he was

convicted of his non-homicide offenses and Appellant did not receive a

mandatory sentence of life in prison without the possibility of parole. Thus,

neither Montgomery nor Miller applies to the case at bar.

       Since Appellant did not attempt to plead any other exception to the

time-bar, we conclude that Appellant’s petition is time-barred and that our

“courts are without jurisdiction to offer [Appellant] any form of relief.”1
____________________________________________


1
  To the extent Appellant claims that his illegal sentencing claim is non-
waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[a]lthough legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or one of
(Footnote Continued Next Page)


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Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

Therefore, we affirm the PCRA court’s order dismissing Appellant’s second

PCRA petition without a hearing.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




                       _______________________
(Footnote Continued)

the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (emphasis added).



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