J-S11040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    THOMAS GEORGE OSTROWSKI                    :
                                               :
                      Appellant                :   No. 1283 WDA 2016

                  Appeal from the PCRA Order August 16, 2016
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001589-1999



BEFORE:      OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 20, 2017

        Thomas George Ostrowski (“Appellant”) appeals from the order

entered in the Court of Common Pleas of Butler County dismissing his first

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §

9541-9546, as untimely. We affirm.

        On June 29, 2000, a jury sitting in Appellant’s capital case found him

guilty of two counts of first-degree murder and sentenced him to life

imprisonment.       This Court affirmed judgment of sentence, and Appellant’s

judgment of sentence became final 90 days after the Pennsylvania Supreme

Court filed its October 10, 2002 order denying Appellant’s petition for

allowance of appeal.         42 Pa.C.S. § 9545(b)(3) (judgment of sentence
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S11040-17



becomes final at the conclusion of direct review or the expiration of time for

seeking the review); Commonwealth v. Feliciano, 69 A.3d 1270, 1275

(Pa.Super. 2013) (defendant's judgment of sentence is final ninety days

after Pennsylvania Supreme Court denies allowance of appeal since

defendant has ninety days thereafter to seek discretionary review with

United States Supreme Court).

      Over thirteen years later, on March 16, 2016, Appellant filed this PCRA

petition, his first, in which he asserted, inter alia, that his petition was timely

because the recent decision in Montgomery v. Louisiana, 136 S.Ct. 718

(2016) made Alleyne v. United States, 133 S.Ct. 2151 (2013) newly

applicable to cases on collateral review.       On March 28, 2016, the court

appointed counsel and directed him to file an amended PCRA petition within

45 days. After receiving two extensions of time in which to file an amended

petition, appointed counsel filed a no-merit letter and Motion to Withdraw as

PCRA Counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). On

July 25, 2016, the PCRA court granted counsel’s motion and issued a

Pa.R.Crim.P. 907 Notice of Intent to Dismiss Appellant’s petition without a

hearing. In the court’s accompanying Memorandum Opinion, it opined that

appointed   counsel    substantially   complied   with   the   requirements     for

withdrawal and agreed with counsel’s position that Appellant’s patently

untimely petition qualified for no exception to the PCRA’s one-year filing

requirement.

                                       -2-
J-S11040-17



      Appellant filed a pro se response in opposition to the court’s notice of

intent to dismiss reiterating his position that the holding in Alleyne is

retroactively applicable to PCRA claims by operation of the United States

Supreme Court’s recent decision in Montgomery.        By its order of August

16, 2016, the PCRA court dismissed Appellant’s petition. This timely appeal

followed.

      Appellant, acting pro se, presents the following question for our

review:

      WHETHER THE LOWER COURT ERRED IN FINDING
      [APPELLANT’S] PCRA [PETITION] AS [SIC] UNTIMELY
      WHERE THE UNITED STATES SUPREME COURT IN
      MONTGOMERY V. LOUISIANA HELD THAT ANY CASES OUT
      OF THEIR COURT THAT WERE SUBSTANTIVE IN NATURE
      WERE RETROACTIVELY APPLICABLE TO ALL THE STATES
      AND IN DOING SO CAUSED ALLEYNE V. U.S. TO BECOME
      RETROACTIVELY APPLICABLE TO [APPELLANT]?

Appellant’s brief at vii.

      Our standard of review of an order denying a PCRA petition is to

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

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). This Court gives deference to the PCRA court's findings

unless there is no support for them in the certified record. Commonwealth

v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth

v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      We begin by addressing the timeliness of Appellant's petition, because

the PCRA time limitations implicate our jurisdiction and may not be altered


                                    -3-
J-S11040-17



or disregarded in order to address the merits of a petition.                See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, a petition for post-conviction relief must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)–(iii) applies:

      (b) Time for filing petition.—

      (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:

            (i) the failure to raise the claim previously was the
            result of interference by government officials with
            the presentation of the claim in violation of the
            Constitution or laws of this Commonwealth or the
            Constitution or laws 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 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. § 9545(b)(1)(i)–(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, as stated supra, Appellant's judgment of sentence became final

on January 8, 2003, when the 90 days for filing an appeal to the United

States Supreme Court expired. Thus, generally, Appellant would have had

                                     -4-
J-S11040-17



to file a PCRA petition by January 8, 2004. This petition, filed on March 16,

2016, over thirteen years after Appellant's judgment of sentence became

final, was, therefore, patently untimely unless Appellant pleaded and proved

one of the three statutory exceptions to the PCRA's jurisdictional time-bar

within “60 days of the date the claim could have been presented.”         42

Pa.C.S. § 9545(b)(2).

       Appellant attempts to avoid the one-year time-bar by invoking the

“new constitutional right” exception under Section 9545(b)(1)(iii).   In his

view, this new right arose in Montgomery,1 where the United States

Supreme Court held “when a new substantive rule of constitutional law

controls the outcome of a case, the Constitution requires state collateral

review courts to give retroactive effect to that rule.” Id. at 729. Alleyne’s

invalidation of mandatory minimum sentences based on facts not proven to

a jury beyond a reasonable doubt, Appellant maintains, constituted a ruling

of a substantive nature. He concludes that the PCRA court was, therefore,

required to apply the Alleyne rule retroactively to his mandatory life

sentences.

       Decisional law of this Commonwealth does not support Appellant’s

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



____________________________________________


1
  Montgomery was decided less than 60 days prior to the filing of
Appellant's current PCRA petition.



                                           -5-
J-S11040-17



the Pennsylvania Supreme Court determined that the Constitutional rule

announced in Alleyne was procedural, not substantive, as the holding

      neither alters the range of conduct or the class of persons
      punished by the law. See Montgomery, 136 S.Ct. at 729-30.
      Rather, the holding allocates the relevant decision-making
      authority to a jury rather than a judge, while establishing the
      beyond-a-reasonable-doubt standard as the essential burden of
      proof.…

Washington, 142 A.3d at 818-19. As Montgomery, thus, did not concern

Alleyne-based claims, the Court held that Alleyne does not apply

retroactively to cases pending on collateral review and could not serve as

the   basis   to   declare   judgments      of    sentence    illegal   in   such   cases.

Washington,        142   A.3d   at   814,        819-820     (observing      that   neither

Pennsylvania Supreme Court nor United States Supreme Court has deemed

Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), from which Alleyne

derives, retroactive on collateral review; federal courts of appeals universally

reject retroactivity on collateral review). It follows that Alleyne applies only

to cases pending on direct appeal as of the date of the Alleyne decision.

See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.Super. 2014) (en

banc) (holding Alleyne applies only to cases pending on direct appeal as of

June 27, 2013, the date of the Alleyne decision); Commonwealth v. Ruiz,

131 A.3d 54, 58 (Pa.Super. 2015).

      Finally, even if Appellant had satisfied the PCRA’s 60–day rule, and

Alleyne generally applied retroactively on collateral review, Appellant would

still not qualify for relief under Alleyne because the sentencing statute at


                                         -6-
J-S11040-17



issue2 predicates a mandatory minimum sentence of life imprisonment for

first-degree murder not upon preponderance-based judicial findings of fact

but, instead, upon a jury’s determination that elemental facts were proven

beyond a reasonable doubt.

        Therefore, because Appellant failed to plead and prove that an

exception to the one-year time requirement applied to the facts of his case,

the PCRA court lacked jurisdiction to consider the merits of his untimely

petition. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.Super.

2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).

For the same reasons, we, too, may not address the merits of any

substantive claims raised in Appellant’s PCRA petition.   See Bennett, 930

A.2d at 1267. Accordingly, we affirm the order denying PCRA relief.

     Order is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




____________________________________________


2
    18 Pa.C.S. § 1102(a)(1).



                                           -7-
