J-S38025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FELIX LAMAR,

                            Appellant               No. 2535 EDA 2015


                  Appeal from the PCRA Order of July 28, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1205341-1995


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JULY 05, 2016

       Appellant, Felix Lamar, appeals from the order entered on July 28,

2015, dismissing as untimely his fourth petition pursuant to the Post

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

       The PCRA court summarized the facts and procedural history of this

case as follows:

         On November 10, 1997, [Appellant] pleaded guilty to third-
         degree murder, criminal conspiracy and possession of an
         instrument of crime.[1] On December 15, 1997, [Appellant]
         was sentenced to an aggregate term of thirty-five to
         seventy years’ imprisonment. [Appellant] did not file a
         direct appeal.




____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 903, and 907, respectively.
J-S38025-16


        On March 4, 1999, [Appellant] file[d] his first pro se PCRA
        petition.  Counsel was appointed.       The [PCRA] court
        subsequently denied his petition. No appeal was taken.

        On January 21, 2003, [Appellant] filed his second PCRA
        petition. Appointed counsel filed a [] “no-merit” brief and
        was permitted to withdraw [pursuant to Commonwealth v.
        Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v.
        Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)]. Relief
        was denied on September 19, 2003, and no appeal was
        taken.

        On August 4, 2004, [Appellant] filed his third PCRA petition.
        Counsel was again appointed, and [counsel] filed an
        amended petition. The [PCRA] court dismissed his petition
        as untimely. The Superior Court affirmed the dismissal on
        December 19, 2006. [See Commonwealth v. Lamar, 918
        A.2d 787 (Pa. Super. 2006) (unpublished memorandum).]


PCRA Court Opinion, 9/14/2015, at 1-2 (footnotes incorporated).

      Appellant filed the current pro se PCRA petition, his fourth, on August

12, 2013. In that petition, Appellant averred that his sentence was illegal

pursuant to the United States Supreme Court decision in Peugh v. United

States, 133 S. Ct. 2072 (2013). Thereafter, on October 15, 2013, Appellant

filed a pro so attachment to the initial PCRA filing, claiming he was entitled

to relief pursuant to the United States Supreme Court decision in Miller v.

Alabama, 132 S. Ct. 2455 (2012). On July 3, 2014, Appellant filed a

memorandum of law in support of his PCRA petition in which he relied upon

the United States Supreme Court decision in Alleyne v. United States, 133

S. Ct. 2151 (2013).

      Pursuant to Pennsylvania Rule of Criminal Procedure 907, the PCRA

court served Appellant with notice of the court’s intention to dismiss his

                                    -2-
J-S38025-16



PCRA petition on June 16, 2015. The PCRA court dismissed his petition as

untimely on July 28, 2015. This timely pro se appeal resulted.2

       On appeal, Appellant presents the following issue for our review:

         Whether the PCRA court erred by not allowing [Appellant] to
         proceed under his amended habeas corpus petition[,]
         because he did not have any remedy available under [42
         Pa.C.S.A. §] 9545[’s] time limitations [] to challenge his
         (unconstitutional) sentence in violation of Alleyne v.
         United States?

Appellant’s Brief at 3.

       Appellant contends his aggregate aggravated range sentence of 35 to

70 years of imprisonment for third-degree murder, aggravated assault,

burglary, possessing an instrument of crime, and conspiracy “imperatively

required habeas corpus relief” in “the interest of justice.” Id. at 5. While

not entirely clear from his appellate brief, it appears that Appellant argues

the trial court illegally imposed mandatory maximum sentences under 42

Pa.C.S.A. § 9712 for committing the offenses with a firearm. 3             See

Memorandum in Support of PCRA Petition, 7/3/2014, at 3 (arguing, “the
____________________________________________


2
   Appellant filed a pro se notice of appeal on August 17, 2015. The PCRA
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 14,
2015.
3
  We note that the certified record in this case has been reconstructed. The
reconstructed record only contains PCRA filings; there are no direct appeal
documents. Hence, it is difficult to ascertain precisely how the trial court
sentenced Appellant. However, the main thrust of Appellant’s claim is that
the trial court unlawfully imposed mandatory sentences under 42 Pa.C.S.A. §
9712 for committing the offenses of third-degree murder, aggravated
assault, and burglary with a firearm.



                                           -3-
J-S38025-16



mandatory minimum sentence provided for in 42 Pa.C.S.[A.] § 9712(a) is

unconstitutional.”).     Thus, Appellant maintains the United States Supreme

Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013)

entitles him to relief because Alleyne, “renders those Pennsylvania

mandatory minimum sentencing statutes that do not pertain to prior

convictions constitutionally infirm insofar as they permit a judge to

automatically increase a defendant’s sentence based on a preponderance of

the evidence standard.” Appellant’s Brief, at 5-6. Appellant contends that

he presented his claim within 60 days of the date that the Supreme Court

decided Alleyne. Id. at 5.

       Initially, we note that Appellant did not raise claims related to Peugh

v. United States, 133 S. Ct. 2072 (2013) and/or Miller v. Alabama, 132

S. Ct. 2455 (2012) in his appellate brief. As Appellant has abandoned these

claims, we conclude they are waived.4            See Commonwealth v. Bullock,

948 A.2d 818, 823 (Pa. Super. 2008) (holding an issue identified on appeal

but not properly developed in an appellate brief is waived).

____________________________________________


4
  Moreover, those cases appear inapplicable to Appellant’s case. Peugh
dealt with a violation of the ex post facto clause when a defendant was
sentenced under more punitive guidelines than the guidelines in effect at the
time he committed the offenses. Appellant never alleged that he was
sentenced under inapplicable guidelines or sentencing statutes that were not
in effect. Miller prohibited mandatory life sentences without parole for
juvenile offenders. Here, although Appellant was a juvenile when he
committed a homicide, he did not receive a mandatory life sentence without
the possibility of parole.



                                           -4-
J-S38025-16



      Next,

        [w]e agree that Appellant's writ of habeas corpus [was
        properly] treated as a PCRA petition. It is well-settled that
        the PCRA is intended to be the sole means of achieving
        post-conviction relief. Unless the PCRA could not provide
        for a potential remedy, the PCRA statute subsumes the writ
        of habeas corpus. Issues that are cognizable under the
        PCRA must be raised in a timely PCRA petition and cannot
        be raised in a habeas corpus petition. Phrased differently, a
        defendant cannot escape the PCRA time-bar by titling his
        petition or motion as a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013)

(internal citations omitted). “[A]n issue pertaining to Alleyne goes to the

legality of the sentence.”   Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014).     The PCRA provides for an action by which persons

serving illegal sentences may obtain collateral relief. See Commonwealth

v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), citing 42 Pa.C.S.A.

§ 9542. Thus, the PCRA court properly treated Appellant’s filings under the

PCRA.

      “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) (bracket omitted). “[A] court may entertain a challenge

to the legality of the sentence so long as the court has jurisdiction to hear

the claim. In the PCRA context, jurisdiction is tied to the filing of a timely

PCRA petition.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super.

2007). Stated differently, “although illegal sentencing issues cannot be


                                    -5-
J-S38025-16



waived, they still must be presented in a timely PCRA petition.” Taylor, 65

A.3d at 465 (citation omitted).

        This Court stated:

          The timeliness of a PCRA petition is a jurisdictional
          threshold and may not be disregarded in order to reach the
          merits of the claims raised in a PCRA petition that is
          untimely. Effective January 16, 1996, the PCRA was
          amended to require 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, including discretionary review in
          the Supreme Court of the United States and the Supreme
          Court of Pennsylvania, or at the expiration of time for
          seeking the 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
          [….] are met.5 A petition invoking one of these exceptions

____________________________________________


5
    The 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
(Footnote Continued Next Page)


                                           -6-
J-S38025-16


         must be filed within sixty 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 sixty-day time
         frame[.]

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

citations and quotations omitted).

      Here, Appellant did not file a direct appeal from his December 15,

1997 judgment of sentence. Thus, his judgment of sentence became final

30 days later, on January 14, 1998, after the time for seeking review with

this Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment

becomes 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 time for seeking the review[.]”);

Pa.R.Crim.P. 720(a)(3) (“the defendant's notice of appeal shall be filed

within 30 days of imposition of sentence[.]”).           Appellant filed his most

recent PCRA petition on August 12, 2013, over 14 years after his judgment

of sentence became final.        Accordingly, the petition was patently untimely.

      In arguing that he was entitled to habeas review, Appellant concedes

on appeal “his PCRA petition did not satisfy any exception to [the Section]

9545 time limitations.” Appellant’s Brief at 6. Regardless, Appellant relies
                       _______________________
(Footnote Continued)

         provided in this section and has been held by that court to
         apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i-iii).



                                            -7-
J-S38025-16



primarily upon Alleyne in alleging that his sentence is illegal. However, we

previously determined that Alleyne is not retroactive and cannot serve as

the basis for invoking the timeliness exception found at 42 Pa.C.S.A.

§ 9545(b)(1)(iii). See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.

Super. 2014). Thus, Appellant failed to invoke an exception to the PCRA’s

jurisdictional timeliness requirement.         Accordingly, we conclude the PCRA

court lacked jurisdiction and properly dismissed Appellant’s PCRA petition as

untimely.

       Finally,   on   March     23,   2016,     Appellant   filed   a   petition   under

Pa.R.Crim.P. 1236 to supplement his argument to this Court with the United

States Supreme Court’s January 25, 2016 decision in Montgomery v.

Louisiana, 136 S.Ct. 718 (2016).               In Montgomery v. Louisiana, the

United States Supreme Court determined that the Louisiana Supreme Court

improperly refused to give collateral relief and retroactive effect to the

prohibition upon mandatory life sentences without parole for juvenile

offenders as set forth in Miller v. Alabama, supra.                  We have already

concluded that Appellant abandoned and waived his Miller issue, and that

Miller was otherwise inapplicable to Appellant.               See n.3, supra.         We

conclude, therefore, that Montgomery v. Louisiana is likewise irrelevant.
____________________________________________


6
  Pennsylvania Rule of Criminal Procedure 123 relates to the application for
the assignment of counsel.     Ostensibly, Appellant sought relief under
Pennsylvania Rule of Appellate Procedure 123.




                                           -8-
J-S38025-16



Appellant also claims, for the first time in his application for relief, that trial

counsel was ineffective for failing to investigate psychological evidence and

specific witnesses in negotiating his plea.7        See Application for Relief,

3/23/2016, at 5-8. Accordingly, we deny Appellant’s application for relief.

       Order affirmed. Application for relief denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/5/2016




____________________________________________


7
 This issue is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).



                                           -9-
