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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
ANTHONY EUGENE LOMAX, JR.,               :          No. 689 WDA 2016
                                         :
                         Appellant       :


                  Appeal from the PCRA Order, April 15, 2016,
                  in the Court of Common Pleas of Erie County
                Criminal Division at No. CP-25-CR-0001819-2008


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 08, 2017

        Anthony Eugene Lomax, Jr., appeals from the order of April 15, 2016,

dismissing his serial PCRA1 petition. We affirm.

        On November 4, 2008, appellant entered a negotiated guilty plea to

one count each of rape of a child and aggravated indecent assault. 2      In

exchange for his plea, additional charges of involuntary deviate sexual

intercourse and corruption of minors were nolle prossed.           Appellant

admitted to digitally penetrating the four-year-old victim’s vagina and

penetrating her anus with his penis. (Notes of testimony, 11/4/08 at 5.) On

March 3, 2009, appellant appeared for sentencing. Appellant made an oral



1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
    18 Pa.C.S.A. §§ 3121(c) & 3125(b), respectively.
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motion to withdraw the plea, which was denied. (Notes of testimony, 3/3/09

at 31-32.)    Appellant received an aggregate sentence of 20 to 40 years’

imprisonment, which included 10-year mandatory minimum sentences at

each count.    Appellant was also found to meet the statutory criteria for

sexually violent predator status.

      Appellant filed a direct appeal, and this court affirmed the judgment of

sentence on February 1, 2010.       Commonwealth v. Lomax, 996 A.2d 10

(Pa.Super. 2010) (unpublished memorandum).           Appellant’s petition for

allowance of appeal was denied by the Pennsylvania Supreme Court on

November 16, 2010. Commonwealth v. Lomax, 12 A.3d 751 (Pa. 2010).

      On January 21, 2011, appellant filed a timely pro se PCRA petition.

Counsel was appointed and filed an amended petition on appellant’s behalf.

(Docket #61.)     An evidentiary hearing was held on June 2, 2011, and

appellant’s petition was denied on June 10, 2011.        In a memorandum

decision, this court affirmed on January 23, 2012; and on June 20, 2012,

our supreme court denied allowance of appeal. Commonwealth v. Lomax,

43 A.3d 526 (Pa.Super. 2012) (unpublished memorandum), appeal denied,

47 A.3d 846 (Pa. 2012).

      On March 17, 2016, appellant filed the instant petition pro se, his

second. (Docket #86.) On March 30, 2016, the PCRA court issued notice of

its intent to dismiss the petition without a hearing within 20 days pursuant

to Pa.R.Crim.P. 907.   Appellant filed a response on April 8, 2016, and on



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April 15, 2016, appellant’s petition was dismissed as untimely filed. (Docket

#89.) On May 11, 2016, appellant filed a timely pro se notice of appeal,

together with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). (Docket #90, #91.) On June 10, 2016, the

PCRA court issued a Rule 1925(a) opinion, relying on the reasons for

dismissal set forth in its Rule 907 notice. (Docket #94.)

       Subsequently, appellant retained private counsel, Marvin Leibowitz,

Esq.    On September 29, 2016, this court granted Attorney Leibowitz’s

motion for remand and directed appellant to file a counseled Rule 1925(b)

statement within 14 days.       (Docket #97.)     Appellant filed a Rule 1925(b)

statement on October 13, 2016. (Docket #98.) On October 20, 2016, the

PCRA court filed a supplemental Rule 1925(a) opinion, again relying on its

March 30, 2016 Rule 907 notice. (Docket #99.)

       Appellant has raised the following issues for this court’s review:

             I.     Whether the lower court erred in finding that
                    the appellant’s second PCRA petition is not
                    timely in view of the United States Supreme
                    Court opinion in Montgomery v. Louisiana,
                    [     U.S.    ,] 136 S.Ct. 718, 193 L.Ed.2d
                    599 (2016)?

             II.    Whether the lower court erred by sentencing
                    the appellant to a mandatory minimum
                    sentence in violation of Alleyne v. United
                    States, [       U.S.    ,] 133 S.Ct. 2151
                    [(2013)] and Commonwealth v. Wolfe, 140
                    A.3d 651 ([Pa.] 2016)?

             III.   Whether the appellant’s trial counsel was
                    ineffective in failing to file a written motion for


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                  withdrawal of the guilty plea despite
                  appellant’s request and to file a motion to
                  suppress a confession?

Appellant’s brief at vii (unnecessary capitalization deleted).

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            Pennsylvania law makes clear no court has
            jurisdiction to hear an untimely PCRA petition.
            Commonwealth v. Robinson, 575 Pa. 500, 508,
            837 A.2d 1157, 1161 (2003). The most recent
            amendments to the PCRA, effective January 16,
            1996, provide a PCRA petition, including a second or
            subsequent petition, shall be filed within one year of
            the date the underlying judgment becomes final.
            42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
            Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
            Commonwealth v. Vega, 754 A.2d 714, 717
            (Pa.Super.2000). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

            The three statutory exceptions to the timeliness
            provisions in the PCRA allow for very limited
            circumstances under which the late filing of a
            petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).


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           To invoke an exception, a petition must allege and
           prove:

           (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.A. § 9545(b)(1)(i)-(iii). “As such, when a
           PCRA petition is not filed within one year of the
           expiration of direct review, or not eligible for one of
           the three limited exceptions, or entitled to one of the
           exceptions, but not filed within 60 days of the date
           that the claim could have been first brought, the trial
           court has no power to address the substantive merits
           of a petitioner’s PCRA claims.” Commonwealth v.
           Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
           (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080. “To invoke an exception, the petitioner must plead it and

satisfy the burden of proof.”     Commonwealth v. Geer, 936 A.2d 1075,

1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).



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      Here, appellant’s judgment of sentence became final on February 14,

2011, 90 days after the Pennsylvania Supreme Court denied allowance of

appeal and the deadline passed for filing a petition for writ of certiorari in

the United States Supreme Court.           See 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct. Rule 13(1), 28 U.S.C.A.          As such, the instant petition,

appellant’s second, is manifestly untimely, unless one of the three statutory

exceptions to the PCRA’s one-year jurisdictional time-bar applies. Appellant

asserts that his sentence is illegal under Alleyne and its progeny (holding

that any fact that, by law, increases the penalty for a crime is required to be

treated as an element of the offense, submitted to a jury, rather than a

judge, and found beyond a reasonable doubt). However, “even claims that a

sentence was illegal, an issue deemed incapable of being waived, are not

beyond the jurisdictional time restrictions.”   Commonwealth v. Grafton,

928 A.2d 1112, 1114 (Pa.Super. 2007), citing Commonwealth v. Fahy,

737 A.2d 214 (Pa. 1999); Commonwealth v. Beck, 848 A.2d 987

(Pa.Super. 2004).   Therefore, appellant’s illegal sentencing claim does not

operate as an independent exception to the PCRA’s jurisdictional time-bar.

      To the extent that appellant is arguing that the after-recognized

constitutional right exception, enumerated at 42 Pa.C.S.A. § 9545(b)(1)(iii)

applies, he is mistaken. Recently, our supreme court decided that Alleyne

does not apply retroactively to collateral attacks on mandatory minimum

sentences advanced in post-conviction relief proceedings. Commonwealth



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v. Washington, 142 A.3d 810 (Pa. 2016); see also Commonwealth v.

Riggle, 119 A.3d 1058 (Pa.Super. 2015) (holding that Alleyne did not

apply retroactively in a PCRA setting, where Riggle’s judgment of sentence

became final 15 months before the Supreme Court decided Alleyne in June

of 2013). Furthermore, it is well settled that Alleyne does not invalidate a

mandatory minimum sentence when presented in an untimely PCRA petition.

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

         Appellant relies on Montgomery for the proposition that when a new

substantive rule of constitutional law controls the outcome of the case, it

must be given retroactive effect on state collateral review. (Appellant’s brief

at 2.)    See Montgomery, 136 S.Ct. at 732 (Supreme Court's decision in

Miller v. Alabama,        U.S.     , 132 S.Ct. 2455 (2012), prohibiting under

the Eighth Amendment mandatory life sentences without parole for juvenile

offenders, announced a new substantive constitutional rule that was

retroactive on state collateral review). However, the Pennsylvania Supreme

Court in Washington decided that the Alleyne ruling was not substantive

nor was it a groundbreaking, “watershed” rule of criminal procedure that

applies retroactively on collateral review.       Washington, 142 A.3d at

818-819.      See Teague v. Lane, 489 U.S. 288 (1989) (plurality) (a new

constitutional rule of criminal procedure does not generally apply to

convictions that were final when the new rule was announced).         As such,

appellant is not entitled to the benefit of Alleyne.



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        Finally, appellant claims that trial counsel was ineffective for failing to

file a written pre-sentence motion to withdraw his guilty plea, and for failing

to file a motion to suppress appellant’s confession.         (Appellant’s brief at

6-9.)    It is well settled that claims of trial counsel ineffectiveness do not

operate as an independent exception to the one-year jurisdictional time bar

of the PCRA.     See Gamboa-Taylor, 753 A.2d at 783 (holding a claim of

ineffective assistance of counsel does not save an otherwise untimely

petition for review on the merits); see also Commonwealth v. Breakiron,

781 A.2d 94, 97 (Pa. 2001) (allegations of ineffective assistance of counsel

will not circumvent the timeliness requirement of the PCRA).

        Also, these claims could have been brought in appellant’s first PCRA

petition and are waived on that basis.           42 Pa.C.S.A. § 9544(b) (“For

purposes of this subchapter, an issue is waived if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state postconviction proceeding.”).

        As appellant’s petition, his second, is patently untimely and appellant

has failed to plead and prove the applicability of any exception to the PCRA’s

time-of-filing requirements, the PCRA court lacked jurisdiction to consider

the merits of appellant’s issues and did not err in dismissing appellant’s

petition without an evidentiary hearing.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 3/8/2017




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