J-S93026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NATHANIEL RHODES, JR.

                            Appellant                 No. 1912 EDA 2016


               Appeal from the PCRA Order dated June 14, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0008491-2003


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                          FILED JANUARY 31, 2017

        Appellant, Nathaniel Rhodes, Jr., appeals from the order dismissing his

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

9541-9546. We affirm.

        The PCRA court summarized the facts and procedural history of this

case as follows:

        At the conclusion of a three-day jury trial that commenced on
        March 10, 2004, [Appellant] was found guilty of three counts of
        Robbery and one count of Receiving Stolen Property.           The
        charges stemmed from a robbery at a 7-11 convenience store
        located at 1503 West Main Street in West Norriton, Montgomery
        County [on November 22, 2003, when Appellant was 33 years
        old]. On June 21, 2004, this court sentenced [Appellant] to 25
        to 50 years in prison under the three-strikes statute, pursuant to
        42 Pa.C.S.A. Section 9714(a)(2).         [Appellant] appealed a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     number of trial-related issues, and the Superior Court ultimately
     affirmed the judgment of sentence. Thereafter, the Supreme
     Court of Pennsylvania denied [Appellant]’s request for
     discretionary review on October 25, 2005.

     [Appellant] subsequently prosecuted a counseled PCRA . . .
     petition that sought a new trial based on alleged trial counsel
     ineffectiveness. The Superior Court affirmed this court’s denial
     of the petition in February 2008. On July 24, 2008, [Appellant]
     filed a pro-se federal habeas petition. [Appellant] was appointed
     counsel to file an amended petition, which was ultimately
     dismissed without a hearing on July 29, 2011. The Third U.S.
     Circuit Court of Appeals affirmed the dismissal of the federal
     habeas petition on July 25, 2012. [Appellant] filed a writ of
     certiorari, which the Supreme Court denied on January 7, 2013.

     Meanwhile, [Appellant] filed a second pro-se PCRA on August 15,
     2012, claiming he had discovered a Supreme Court case
     (Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005)) that
     warrants resentencing in his case. [Appellant asserted “that his
     sentence is illegal because the trial court improperly sentenced
     him pursuant to the three strikes provision, 42 Pa.C.S.A. §
     9714(a)(2),1 when he was never sentenced as a second strike
     offender.” Commonwealth v. Rhodes, 2013 WL 11248416, at
     *3 (Pa. Super. Dec. 11, 2013).] The court appointed Richard J.
     Tompkins, Esquire to review [Appellant]’s pro-se Petition to
     determine whether there was merit to his argument.

     After a conference with PCRA counsel, [Appellant], and the
     Commonwealth present, Attorney Tompkins sent a no-merit
     letter on January 9, 2013.        Accordingly, and after an
     independent review of the record, this court sent [Appellant] a
     Notice of our intent to dismiss his PCRA Petition without a
     hearing. Subsequently, on March 11, 2013, this court denied the
     PCRA Petition without a hearing. [Appellant] timely filed a
     Notice of Appeal.

     On December 11, 2013, the Superior Court affirmed the
     dismissal of [Appellant]’s second PCRA Petition without a
     hearing. Thereafter, on March 25, 2014, the [Appellant] filed a
     “Motion/Petition for Modification of Sentence Nunc Pro Tunc.”
     This Court denied said Motion/Petition on April 11, 2014 due to
     its untimeliness. [Appellant] appealed this decision by Notice of
     Appeal on April 29, 2014. The Superior Court affirmed this

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     Court’s dismissal of the Motion/Petition on November 25, 2014.
     Thereafter, on February 9, 2015, the [Appellant] filed a fourth,
     pro se “Motion for Post Conviction Collateral Relief,” seeking
     relief of the grounds of an illegal sentence. On March 3, 2015,
     after an independent review of the record and finding no
     exception to the time limits pr[e]scribed by the PCRA, this Court
     sent the [Appellant] a Notice of its intent to dismiss his PCRA
     petition without a hearing. No response to this notice was
     received[;] therefore, on April 3, 2015[,] this Court issued a final
     order dismissing the petition without a hearing. On April 3,
     2015, “Defendant’s Response to Notice of the Intent to Dismiss
     Post Conviction Collateral Relief Act Motion Without A Hearing
     Pursuant to the Pennsylvania Rule of Criminal Procedure 907”
     was docketed. [Appellant] filed a timely notice of appeal, dated
     April 28, 2015 and Docketed May 4, 2015.

     On September 17, 2015, the [Appellant]’s appeal from the
     dismissal of his 4th PCRA petition was dismissed, by per curium
     order, for his failure to file a brief. On January 6, 2016, the
     [Appellant] filed a Petition for Writ of Habeas Corpus, which this
     Court treated as an untimely 5th PCRA Petition. On January 26,
     2016, this Court notified the [Appellant], in accordance with Pa.
     R. Crim.P. 907(1), of its intention to dismiss his 5th petition
     without a hearing. On February 22, 2016, this Court dismissed
     the petition. The [Appellant] did not appeal.

     On March 4, 2016, the [Appellant] filed the instant PCRA
     petition. On April 11, 2016, after an independent review of the
     record and finding no exception to the time limits pr[e]scribed by
     the PCRA, this Court sent the [Appellant] a Notice of its intent to
     dismiss his PCRA petition without a hearing, in accordance with
     R. 907(1). The [Appellant] filed a Response to the Notice on
     April 22, 2016, which this Court determined raised no issue
     entitling the [Appellant] to relief or requiring a hearing; this
     Court issued a final dismissal on June 14, 2016. This timely
     appeal followed. The [Appellant] has complied with this Court’s
     directive to produce a Concise Statement of Errors, pursuant to
     Pa.R.A.P. 1925(b).

PCRA Ct. Op., 8/31/16, at 1-3 (footnotes, citations, and indications of

quotations from earlier opinions omitted; some interpolations added).




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        In his pro se appeal, Appellant raises the following issue, as stated in

his brief:

        WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
        WHEN DISMISSING THE APPELLANT’S POST-CONVICTION
        RELIEF ACT PETITION AS UNTIMELY, CONSIDERING THE FACT
        THAT THE APPELLANT ASSERTED IN HIS PETITION A NEWLY
        RECOGNIZED CONSTITUTIONAL RIGHT ANNOUNCED BY OUR
        UNITED STATES SUPREME COURT IN MONTGOMERY V.
        LOUISIANA, 136 S. Ct. 718, 193 L. Ed 2d 599 (2016), IN
        WHICH OUR HIGHEST COURT HELD THAT THE CONSTITUTION
        REQUIRES THAT ALL NEW SUBSTANTIVE RULES OF LAW APPLY
        RETROACTIVELY IN STATE COURT COLLATERAL REVIEW
        PROCEEDINGS, REGARDLESS OF WHEN THE CONVICTION OR
        SENTENCE BECAME FINAL.

Appellant’s Brief at 3.1

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks

omitted).

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

____________________________________________


1
    This challenge was raised in Appellant’s PCRA Petition, 3/4/16, at 3.



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of sentence is final, unless the petition alleges and the petitioner proves one

of the three exceptions to the time limitations for filing the petition set forth

in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).2

        Here, the PCRA court concluded that it lacked jurisdiction over

Appellant’s sixth petition because the petition was untimely and Appellant

failed to satisfy an exception to the PCRA’s time bar.         The PCRA court

explained:

        Despite many futile attempts, [Appellant] is again seeking to
        attack the legality of his sentence which, although unwaivable, is
        still subject to the timeliness provisions of §9545(b)(1). . . .

        “The PCRA’s time restrictions are jurisdictional in nature. Thus,
        if a PCRA petition is untimely, neither [the Superior] Court nor
        the [PCRA] court has jurisdiction over the petition.”
        Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super.
____________________________________________


2
    The three exceptions to the timeliness requirement are:

        (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).



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      2013) (citing Commonwealth v. Chester, 895 A.2d 520, 522
      (Pa. Super. 2006)). Moreover, without jurisdiction, there is no
      legal authority to address the substantive claims. Id.

      “Pursuant to § 9545(3), the one-year period in which to file a
      petition under the PCRA begins to run upon the conclusion of
      direct review.” Commonwealth v. Banks, 726 A.2d 374, 375
      (Pa. 1999). The Defendant was sentenced over 12 years ago on
      June 21, 2004. The Superior Court affirmed his judgment of
      sentence on May 2, 2004 and the Pennsylvania Supreme Court
      denied discretionary review on October 25, 2005. Thus, the
      [Appellant]’s sentence became final on January 23, 2006, after
      he declined to file a writ of certiorari to the Supreme Court.
      Thereafter, he had until January 23, 2007 to file any petition
      under the PCRA per 42 Pa.C.S.A. §9545(b). As described in
      length in the Court’s previous Opinions and the Superior Court’s
      affirmance decisions, the Defendant’s attack on the legality of
      his sentence is patently untimely and does not fall within any of
      the exceptions provided by the Post-Conviction Relief Act.

PCRA Ct. Op., 8/31/16, at 4-5.

      We agree that Appellant fails to meet any exceptions to the PCRA’s

jurisdictional time-bar.   Appellant did not file the instant petition until

January 26, 2016, more than a decade after his judgment of sentence

became final.   Appellant attempts to circumvent the time-bar by asserting

the “new constitutional right” exception under subsection 9545(b)(1)(iii).

Appellant’s Brief at 10. Specifically, Appellant claims that:

      Our United States Supreme Court’s holding in Montgomery v.
      Louisiana recognizes a new constitutional right -- that the
      Constitution requires new substantive rules to apply retroactively
      in state collateral review proceedings regardless of when the
      defendant’s conviction or sentence became final -- applies to the
      appellant’s case through Commonwealth v. Armstrong, [107
      A.3d 735 (Pa. 2014),] which prohibits a certain category of
      punishment for a class of defendant[s] that the appellant
      belongs to (defendant[s] who have never received a second-
      strike sentence pursuant to 42 Pa.C.S.A. Section 9714(a)(1) are

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       prohibited from receiving a third-strike sentence pursuant to 42
       Pa.C.S.A. Section 9714(a)(2)), making this holding a
       constitutional ruling that was asserted by the appellant in his
       PCRA petition.     Therefore, the appellant has met the time
       limitation   exception    found   in    42    Pa.C.S.A.  Section
       9545(b)(1)(iii).

Appellant’s Brief at 18-19.

       Initially, we observe the United States Supreme Court in Montgomery

held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively;

Miller held “that mandatory life without parole for those under the age of 18

at the time of their crimes violates the Eighth Amendment’s prohibition on

‘cruel and unusual punishments.’”              Id. at 2460.   Petitioners, such as

Appellant,3 who were at least 18 years old at the time of their crimes “are

not within the ambit of the Miller decision [and its corollary, Montgomery,]

and therefore may not rely on that decision to bring themselves within the

time-bar    exception     in   Section    9545(b)(1)(iii).”   Commonwealth      v.

Furgess, 149 A.3d 90 (Pa. Super. 2016).               Moreover, Appellant was not

sentenced to life without the possibility of parole.           Hence, Miller and

Montgomery are inapplicable to Appellant.

       Further, Appellant cannot shoehorn his three-strikes claim, which was

raised in his second PCRA petition and rejected by a prior panel of this

Court, into the Miller/Montgomery framework, which addresses the

____________________________________________


3
  Appellant was born in October 1970, and thus was 33 years old when he
committed the robbery at issue in November 2003.



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constitutionality of mandatory sentences of life without parole for juvenile

offenders.   Contrary to Appellant’s argument, Montgomery did not hold

that all new constitutional decisions apply retroactively to cases on collateral

review. Neither Miller nor Montgomery addressed whether a court could

impose a third-strike sentence on a defendant, such as Appellant, who

allegedly has not received a second-strike sentence.      Having discerned no

abuse of discretion or error of law, we affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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