J-S09040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ALBERT IRBY,

                         Appellant                  No. 1558 WDA 2014


         Appeal from the PCRA Order entered September 19, 2014,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0000013-1969


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 18, 2015

      Albert Irby (“Appellant”) appeals from the order denying as untimely

his first petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The Honorable Beth A. Lazzara, sitting as the PCRA court, summarized

the pertinent facts and procedural history as follows:

            [Appellant], who was a seventeen (17) year-old juvenile
         at the time of his offense, was convicted by a jury of first-
         degree murder, and was sentenced to the then-mandatory
         sentence of life without parole on May 6, 1971. The . . .
         Pennsylvania Supreme Court subsequently affirmed the
         Judgment of Sentence in 1971.

            On August 6, 2012, Appellant filed a [pro se] PCRA
         petition, seeking to challenge the legality of his sentence
         based on the United States Supreme Court’s decision in
         Miller v. Alabama, ___ U.S. ___, 132 S.Ct 2455 (2012),
         which held that “the Eighth Amendment forbids a
         sentencing scheme that mandates life in prison without
         possibility of parole for juvenile offenders.” Id. at 2469.
J-S09040-15


        This court appointed counsel to represent [Appellant], and,
        on January 8, 2013, an Amended PCRA petition was filed.
        On January 11, 2013, and October 31, 2013, the
        Commonwealth filed its answers to the amended petition.

           On November 15, 2013, this court filed its Notice of
        Intent to Dismiss the PCRA Petition based on the
        Pennsylvania        Supreme        Court’s     decision    in
        Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
        which held that the ruling in Miller did not apply
        retroactively to cases on collateral review. On November
        26, 2013, [Appellant] filed a Response to the Notice of
        Intention to Dismiss PCRA Petition, Petition to Stay
        Dismissal of Amended PCRA Petition, and Request to
        Amend PCRA Petition,” requesting that the court stay its
        dismissal of his petition “pending the outcome of
        finalization (i.e., a ruling by the United States Supreme
        Court) of Commonwealth v. Cunningham . . . . since a
        Petition for Reconsideration in the PA Supreme Court or a
        Petition for Writ of Certiorari in the United States Supreme
        Court will be filed in that case.” [Appellant’s] Response to
        Notice of Intention to Dismiss PCRA Petition, p.2.
        Alternatively, [Appellant] sought leave to file a second
        amended petition so that he could raise state habeas
        corpus claims pursuant to Article 1, Section 14 of the
        Pennsylvania Constitution and claim that his mandatory
        sentence of life without parole “violates the ban on cruel
        punishments pursuant to Art. 1, Section 13 of the
        Pennsylvania Constitution.” Id. at 3. On September 19,
        2014, this court dismissed the petition[.]

PCRA Court Opinion, 11/13/14, at 1-3 (footnotes omitted).         This timely

appeal followed.   Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

     Appellant phrases his claims on appeal as follows:

        1. DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S
        PCRA PETITION SINCE PURSUANT TO THE 6/25/12
        UNITED STATES SUPREME COURT DECISION IN MILLER
        V. ALABAMA, SINCE [sic] APPELLANT, WHO WAS A
        JUVENILE AT THE TIME OF THE COMMISSION OF THE

                                    -2-
J-S09040-15


          INSTANT CRIME, RECEIVED AN UNCONSTITUTIONAL
          MANDATORY    SENTENCE     OF  LIFE  WITHOUT   THE
          POSSIBILITY OF PAROLE FOR SECOND [sic] DEGREE
          MURDER AND THEREFORE HIS SENTENCE MUST BE
          VACATED AND HE BE RE-SENTENCED?         MOREOVER,
          REGAR[D]LESS OF THE PA SUPREME COURT’S HOLDING
          IN COMMONWEALTH V. CUNNINGHAM, 2013 PA LEXIS
          2546 (PA 2013; 10/30/13), THAT MILLER V. ALABAMA
          IS NOT RETROACTIVE TO DEFENDANTS IN APPELLANT’S
          PROCEDUREAL [sic] POSTURE WHO WERE NOT ON DIRECT
          APPEAL WHEN MILLER V. ALABAMA WAS DECIDED,
          THIS HONORABLE COURT CAN STILL DECIDE, ON OTHER
          GROUNDS, THAT MILLER V. ALABAMA IS APPLICABLE
          AND    SHOULD   BE    RETROACTIVELY   APPLIED  TO
          APPELLANT’S CASE. ADDITIONALLY, THE [PCRA] COURT
          ERRED IN DENYING APPELLANT’S PETITION TO STAY
          DISMISSAL OF THE PCRA PETITION AND APPELLANT’S
          REQUEST TO AMEND THE PCRA PETITION.

Appellant’s Brief at 3.1

       Our standard of review regarding an order dismissing 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,

870 A.2d 795, 799 n.2 (Pa. 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).

Moreover, a PCRA court may decline to hold a hearing on the petition if the

PCRA court determines that the petitioner’s claim is patently frivolous and is
____________________________________________


1
  We remind PCRA counsel that the “statement of questions involved must
state concisely the issues to be resolved[.]” Pa.R.A.P. 2116(a). Appellant’s
one issue actually encompasses four distinct claims.




                                           -3-
J-S09040-15


without a trace of support in either the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

      Upon careful review, we conclude that Judge Lazzara’s November 13,

2014 opinion correctly determines that Appellant’s PCRA petition is untimely,

and that Appellant has failed to prove any exception to the PCRA’s time bar.

Further, we discern no abuse of discretion in Judge Lazzara’s decision to

deny Appellant’s requests to stay his petition and/or permit him to amend it

to include a claim for habeas corpus relief that is beyond the remedies

afforded by the PCRA.     See generally, Commonwealth v. Seskey, 86

A.2d 237 (Pa. Super. 2014).      We therefore adopt the opinion of the trial

court in affirming the dismissal of Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




                                     -4-
                                                                                  Circulated 01/23/2015 01:04 PM




                     IN THE COURT OF COMMON PLEAS FIFTH JUDIC
                                                          JUDICIAL
                                                               IAL DISTRI CT
                                                                   DISTRICT
                           AL LEGHENY COUN T
                                      COUNTY,Y, PENNSYLVANIA


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                                         OPINION

            The Pelitioner
                Pe lilioner appeals Irom
                                    from this court's
                                              courl's September
                                                      Seplember 19, 2014 Order,
                                                                19,2014  Order, dismissing

     11is petition
     Ilis pelilion under Ihe
                         the Post Conviction Relief
                             Posl Convlcllon Reliel Acl ("PCRA") . I See 42 Pa
                                                    Act ("PCRA").'          Pa.C
                                                                               .C .S.
                                                                                  .S . §§9541 -

  9546. The Petitioner,
            Pelilioner, who was a seventeen
                                  sevenleen (17)
                                            ( 17) year-old juvenile' allhe
                                                                     at the lime
                                                                            time 01 hiS
                                                                                    h,s

 offense, was co nvic ted by a JUry
              convicted                first -deg ree murder, and was sent
                               jury of first-degree                        e nced 10 the then
                                                                      sentenced          th e n--

 mandatory
 mandalory sentence
           senle nce ollile                         6, 1971. 3 The Superior Court of
                             withou t parole on May 6,1971.
                     of life wilhoul

 Pe nn sylvania and the Pennsylvania Supreme Court subsequently affirmed th
 Pennsylvania                                                            thee

                                     4
 Judgment of Sen tence in 1971.



 1   The Petitioner's case was transferred to this court
                                                   court following
                                                         foll owing Ihe
                                                                    the passing of the
 Honorable Sa muel Strauss.
           Samuel  Strauss.

, Petition er was born on March 17,
  Petitioner                    t7, 1952, and th    e oliense
                                                  the offense occurred on September 22,
1969. See Amended PCRA Petition
                             Petilion IiliIed
                                          led on January 8,20
                                                          8, 20 13, and Commonwealth's
Answer to Amended PCRA Petition
                            Pelilion IiliIed
                                         led on January 1" 2013.
3 According to the Warrant of Arrest dated September 23,23. 1969.
                                                            1969, Petitioner wa  wass also was
charged wilh
          with Armed Robbery,
                      Robbery, Assault and Batter       Intent to Kill , "VUFA ., and PFA."
                                            Batler with Inlenllo                       PFA ."
     Peti tioner's Concise Statement of Errors Complained of on Appeal (page 3) . The
See Petitioner's
                                            suggest
records are unclear, but they also seem to su  ggest that Petitioner was co nvic
                                                                             nvicted
                                                                                   ted 0of1
second -degree
       -degre e murder as well
                            we ll .

• As noted     both Counsel and Ihe
     no led by bolh                    Commonweal/h , it is diflicultto
                                   the Commonwealth,                                the
                                                            d iHicul/ 10 ascertain Ihe
            hislory in Ihis
procedural history     this case because Ihe
                                         th e Allegheny Counly
                                                        County Departmenl
                                                                  Department 0o 1f Court
                                                                                   Cour!
                                                                                     Circulated 01/23/2015 01:04 PM




             On Augu
                Au gust
                     sl6,
                        6, 20 12, Pelllioner
                                  Petition er filed a PCRA pelition
                                                           petition,, seeking 1
                                                                              to
                                                                               0 cchallenge
                                                                                   hallenge Ihe
                                                                                            the

      legality
      legali ty of      sent ence
                o f his sente nce based on            Sta tes Supreme Court's decIsIon
                                        on the United States                  decision in
                                                                                       In M ill e r v.
                                                                                          Miller

      Alabama,
      Alabama, -      U.S. - -,
                             -,132
                                132 S.C!. 2455 (20
                                               (2012),
                                                   12), which held Ihal
                                                                   tha t "Ihe
                                                                         "the Eighlh
                                                                              Eighth

     Am endmentt forbid s a sentencing scheme
     Amendmen                                  th at mandates
                                       schem e thai  mandales lif e in     son wi
                                                                    In pri son without
                                                                                  th out possibility
                                                                                         possibi lity

                            offenders." &
     01parole for juve nile offenders,"     at 2
                                        IQ. al 2469.
                                                 469. Thi
                                                      Thiss coun appointed           to
                                                                 apPoinled co unse l 1  rep resent
                                                                                      0 represenl

     Pelilioner on appea
     Petitioner    appeall,, and
                             and,, on January 8, 2013,     Amended
                                                 201 3, an Am            pe tition was fi led .
                                                              ended PCRA petition

     On January 11 ,201
                   , 201 3, and OClober
                                Oc tober 3
                                         311,, 201 3, th
                                               20 13, Ihee Commonwea lth filed ils
                                                           Commonweallh            answe rs 5 1
                                                                               its answers'   to
                                                                                               0

     Ihe
     the amended pelilion
                 pe tit ion..


               Novem ber 15, 20
            On November      2013,  th is court
                                13, Ihis  courl filed ils
                                                      its Nolice of Inlenllo
                                                                    Intent to DismiSS Ihe
                                                                                      th e PCRA

     Petition
     Pe tition based on the
                        th e Pennsylvania
                             Pennsylvani a Supreme
                                           S upreme Court's decision in Commonwealth
                                                                        Commonwea lth v.

    Cunningham , 8
                 811 A.3d 1 (Pa. 20
                                 2013),
                                    13), which held lhallhe
                                                    that the ruling in
                                                                    fn Mllier
                                                                       Miller did nol
                                                                                  not apply

    retroac tively to cases on collateral review. On November 26,201
    retroactively                                             26,20 13
                                                                     3,, th e Petitioner
                                                                              Pe titioner filed a

    "Response to th e Notice
                      NOlice o
                             off Intention     Dismiss
                                 Inte ntion to Di smiss PC
                                                        P C RA Pe tition, Petitio n 1
                                                                          Pe tition 10
                                                                                     0 S tay

    Dismissa
    Di smissa l of          PCRA
                o f Amended PC RA Petition,
                                  Pe tition , and Request 10
                                                          to Amend PCRA
                                                                   P CRA Pe tition ,"
                                                                         Pelition  ,"

    requesling
    reques ting Ihalll1e
                thai the cou n
                             rt slay
                                stay ils
                                     its dismissal of his petition   "pending
                                                          pe tit ion "pe nding Ihe
                                                                               the outcome of

    finalizallon
    finaliza tion (i.e
                  (i .e ., a ruling by Ihe
                                       the United States Supreme Court)
                                                                 Court ) of Commonwealth v.

    C unningham . ..
                  . , since a Pe lition
                                 titio n for Reconsidera tion in the PA Supreme Court or a
                                             Reconside ration

Pe ti tio n for W
Peti              rit of
                Writ     Certiorari
                      01 Certiora ri in the Unit ed States
                                            United  Sta tes Supreme Court will be filed in thai
                                                                                           that



Records
Reco   rds file ha rdly co
                hardly     ntains any
                         contains  a ny information
                                        information,, and th
                                                           the                incom ple te . See
                                                                  doc ke t is incomplele.
                                                               e docket
Am ended Petition, (p. 4).  4) . Petitioner's Q!Q se "Motio~
                                 Pelilioner's pro     "M otio~ for Post Conviction
                                                                            Convic tion Collaleral
                                                                                         Collateral
Relie f" states
Relief"  slates that
                 tha I the judgment of sentence           a ff i'rmed by both appe lla te courts In
                                          sentencewas affirmed
197 1.
1971

5   O n January 11,
    On          11 ,201
                    2 01 3, Leann    S hiley, EsqUire
                            Lea nn e Shiley,  Esquire fil ed the Comm onwea lth's initial
                                                      filed
Answer,
Answer. An Amended
             Am ended Answer
                      An swer was filed by Ronald
                                           Ron ald M,
                                                   M. Wabby, JJr.,
                                                               r., EsqUire    Oclober
                                                                   Esquire on Oc tobe r
  1,201
3 1, 20 t 3.

                                                  2
                                                                                   Circulated 01/23/2015 01:04 PM




     case ," Petitioner's Response to Notice of Intention to Dismiss PCRA Petition, p, 2
                                                                          Petition, p. 2,,

     Alternative ly, Petitioner
                 ty, Pe tition er soughlleave
                                  sought leave 10                       pelition so that he could
                                               to file a second amended petition

     raise state habeas corpus
                        co rpus claims pursuanllo
                                       pursuant to Article
                                                   Art icle 1, Section 14
                                                                       t 4 of the Pennsylvan
                                                                                  Pennsylvania
                                                                                             ia

     Constitu tion and claim that his mand a tory sentence
     Constitution                                 se ntence of
                                                            or life wit hout parole
                                                                             paro le "viola te s the
                                                                                     "violates

     ban on cruel punishments pursuant to Art,
                                          Art. 1, Section 13 of the Pennsylvania

                     kl at 33'6 On September 19, 2014, this court
     Consli tution," !fL
     Consti                                                 co urt dismissed the  pelition, and
                                                                             th e petition,

     this timely
          tim ely appeal followed .'


            In his           Statemen t of Errors Complained of on Appeal ("Concise
               11 is Concise Statement

     Statement"),, Peti
     Statement")   Petitioner
                        tioner raises the following arguments:
                                                    argumen ts:


                  THE TRIAL COURT ERRED IN DENYING APPELLANT'S PCRA
            PETITION PURSUANT TO THE 6/25112 6/25/ 12 UNITED STATES SUPREME COU       RT
                                                                                  COURT
            DECISION IN MILLER V. V, ALABAMA , SINCE APPELLANT, WHO WA S A
           JUVENILE AT THE T  TIME
                                IME OF T  THE
                                           HE COMM ISSION OF THE INSTANT CRIME   CRIME,,
           RE CE IVED AN UNCONSTITUTIONAL MANDATORY SENTENCE OF LIFE
           RECEIVED
           WI TH OUT THE POSSIBILITY
                           POSSIBI LITY FOR PAROLE FOR SECOND DEGREE    DEG REE
           MURDER AND THEREFORE HIS SENTENCE MUST BE VACATED AND HE
                  -SENTENCED. MOREOVER, REGA
           BE RE -SENTENCED,                     REGARDLES
                                                        RDLES S OF THE PA SUPREME
           COURT'S HOLDING IN COMMONWEALTH
                                   COMMONWEA LTH V,         CUNNINGHAM , 20
                                                         V. CUNNINGHAM,     2013
                                                                              13 PA LEXIS
           2546(PA 20 13; 10/30/13),
                          10/30/13), THAT MILLER V _   . ALABAMA IS NOT RETROACTIVE
           TO DEFENDANT'S IN APPELLANT'S PROCEDURUREAL
                                                    PROCEDUR UREAL IS [S IC] POSTURE,
           WHO WERE NOT ON DIRECT APPEAL W            WHEN
                                                       HEN MILLER V,V. ALABAMA WAS
           DECIDED
           DEC IDED , AND REGARDLESS
                           REGARDLE SS OF THE UNITED STATES SUPREME
           COURT'S
           COU  RT' S DECISION TO DECLINE A GRANT OF CERTIORARI REGARDING
           CUNNI  NG HAM IN 20
           CUNNINGHAM        2014,
                                14, T
                                    THIS
                                      HI S HONORABLE COURT CAN STILL DECIDE, ON
           OTHER GROUNDS, THAT MILLER  MI LLER V ., ALABAMA IS APPLICABLE
                                                                APPLI CABLE AND
           SHOULD
           SHO ULD BE RETROACTIVELY APPLIED TO APPELLANT'S AP PELLANT'S CASE.
                                                                          CASE,
           ADDITIONALLY,
           ADD ITIONALLY, THE TRI    AL COURT ERRED IN DENYING APPELLANT'S
                                 TRIAL                                 APPELLANT' S
           PETITION TO STA Y DISMISSAL OF THE PCRA PETITION AND
           APPELLANT'
           APPELLANT'S  S REQUEST
                          RE OUEST TO AMEND THE PCRA PETITION .,

•' Specifically, Article 1, Section 13 provides that
                                                that "Ie]xcessive
                                                     "[eJxcessive bail shall not be required ,
nor excessive fines imposed,
                    imposed , nor crue
                                  cruell punishm
                                         punishmen ts inflicted,"
                                                 ents inllicted ." Pa.
                                                                   Pa , Cons t. Art , 1,
Sec tion 13.
         13,

 Petitioner filed his Notice of Appeal, as well
71                                         we ll as his Concise Statement of Errors
                    Appeal , on Seplember
Complained of on Appeal,        September 24,2014
                                           24, 2014._


                                                   3
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  Petitioner's Concise Sta tem
                           tement                             Appeal , p.
                               ent of Errors Complained of on Appeal,  p 44 .

         For the reasons that follow,
                              follow , the Pelitioner's
                                           Petitioner's contentions are without merit,
                                                                                merit , and

 this
 thi                                    amended
     s court 's decision to dismiss the amende        pelltion should
                                               d PCRA petition shoutd be upheld
                                                                         uphetd..


 t. THE PETITIONER
 I.     PETtTIONER'S                             FfLED,
                   'S PCRA PETITION WAS UNTIMELY FILED.


         Under
         Unde r 42 Pa.C.S.
                   Pa .C .S. §95 45(b)( 1),
                             §9545(b)(  I ), a PCRA petition musl
                                                             must be lited
                                                                     fited within
                                                                           Within o ne (t) year
                                                                                  one

 01
 of the dale
        da te th
              that
                 at the
                    th e judgment becomes finat'
                                          final ' A petition fil
                                                             filed
                                                                 ed ou
                                                                    outside
                                                                       tside of this one
                                                                                     one-year
                                                                                         -year

 window IS
        IS considered untimel y, unless it can be shown th
                      untimely,                         that
                                                           a t one of the
                                                                      th e three
                                                                           thre e narrow

 statu tory exceptions to the general timeliness requirements
 statutory                                                      applies, See 42 Pa.C
                                                 req uiremen ts applies.        Pa C .S .

§9545(b)( I1)(i)-(iii).
            )(i)-(iii) The PCRA statute provides as follows
                                                    follows:


                (b) Time      filing petition--
                    Tim e for fitlng petition -·

               (1)
               ( I ) Any petition under this subchapter, including
                                                           Including a second or subsequent
                                                                                 subsequen t
       petition,           tiled within one year of the date the judgment becomes fina
       petition . shall be filed                                                     finall,,
       unless the
                Ihe pelilion alleges and Ihe
                                           the petitioner
                                               pelilioner proves that

               (i) the failure to raise the claim
                                             cla im previously was the result
                                                                          resu lt of Interierence by
                                                                                  of Interference
       government officials
                      o fficials with the presentation of th e claim In
                                                                      in viola
                                                                          vio lation
                                                                                tion of the
       Constitut  ion
       Consti tu tion or  laws  of this Commonwealth      or th e Consti tution or laws of
                                                                  Constitution            o f the
       United States
               States;;



8 As explained by the Court in Commonwealth v. Lawson,
                                               Lawson , 90 A.3d t , 4 -5 (Pa . Super.
                                                                    4-5        Supe r.
20t4):
20 14):
                  Effective January 16,         1996, the PCRA was amended to reqUire
                                           t 6, 1996,                                   req uire a
       pe ti tioner to file any PCRA petition within
       petitioner                                      wi thin one year of01 the date the judgment of
       sentence becomes final. 42 Pa.C.S,A     Pa.C .S.A., § 9545(b)(I)
                                                              9545(b)( I ).. A Judgment
                                                                               judgment of sentence
      "becomes
      "become        s final at the
                                 th e conclusion
                                       conclu sion of          review,, including discre tionary review In
                                                    of direct review
      Ihe
      the Supreme Court of the United Siaies        States and theth e Supreme Court of   01 Pe
                                                                                              Pennsylva
                                                                                                nnsylvania
                                                                                                         nia ,
      or a t the
               th e expiration
                     expira tion of time
                                       tim e for seeking the review,"
                                                                review." 42 Pa,C
                                                                              Pa.C .S.A. § 9545(b)(3)
                                                                                             954S(b)(3) .
      Where
      Whe re a pe     petitioner's
                         titIOner's judgment
                                     judgmen t of sentence
                                                    sen tence became fifinal nal on
                                                                                 on or before the effective
                                                                                                    effec tive
      date of the
      dale        th e amendment, a special grace proviso    proVISO allowed first PCRA pe    petitions 10
                                                                                                titions to
      be filed
          fited by January 16,     t 6, 1997,
                                         1997. See Commonwealth
                                                     Commonweal th v.    v. Alcorn , 703 A.2d 1054,
      1056- 1057 (Pa     (Pa.Super.1997)
                              ,Super, 1997) (explaining application of PCRA tlmetlnesstim eliness
      proviso) ,"  ."

                                                    4
                                                                                          Circulated 01/23/2015 01:04 PM




                   (ii) Ihe facls
                            lac Is upon which Ihe claim is predicated
                                                           predicaled were unknown 1 10
                                                                                      0 Ihe
          petifioner                              ascerta ined by the exercise of
          pe titioner and could not have been ascertained                      oj due diligence ;
          or
                  (iii) the right asse
                                  asserted
                                       rted is a constitutional
                                                 constttutional right that
                                                                      tha t was recogntzed
                                                                                recog ntzed by the
          S upre
            upreme
                 me Court of  of the United States or the Supreme Court of    of Pennsylvania afte
                                                                                               afterr
          Ihe lime period provided in Ihis secl      on and has been held by that court to appty
                                               sectiion                                      apply
          re troactive ly.
          retroactively.

                  (2) Any petition
                          petilion invoking an exception prov    ided in paragraph
                                                             provided    paragra ph (1) sha
                                                                                        sh allll be
          filed within 60 days 01
                                of Ihe
                                   th e date
                                        dale the
                                             th e claim could
                                                        cou ld have been presented
                                                                          presenled .

                                           subchapler, a judgment becomes final at the
                                   01 this subchapter.
                  (3) For purposes of
         conclusion of direct revie   w, including discretionary
                                 review,           discre tionary review in the Supreme Court
         of the United Stales
                          States and the Supreme Court of Pennsylvania,
                                                              Pennsylvania , or a
                                                                                alt the expi ra tion
                                                                                        expiration
         01 tim e for
         of time                    review .
                  fo r seeking the review.

       .C,S.§9545(b)( 1)-(3) (emphaSIS
 42 Pa .C.S.§9545(b)(        (emphasIs added)
                                       added)..


         The
         T he timeliness requirement under 42 Pa.C.S.
                                              Pa .C.S. §9S4S(b)(1)
                                                       §9S45(b)( 1) is lurisdiclional
                                                                       jurisdictional in

 na lure , and
 nalure,          if th
           a nd , if thee petition
                          pe tition is fac ia lly untime
                                       facially          ly, the court
                                                  untimely,      co urt lacks jurisdic tion over
                                                                              jurisdiction  ove r th
                                                                                                  thee

 petition
 pe tition unless the
                  th e petitioner
                       pe tit ioner is able to plead and prove thai
                                                               tha i his cla
                                                                         claIms   fallU under one of
                                                                             im s fa

 the three e)(ceptions
           exceptions se t fo     above . See Commonwea
                              rth above.
                           forth                        lth v. Taylor, 933 A.2d
                                              Commonwealth

 1035,1038
 1035, 1038 (Pa
            (Pa.. Super.
                  Supe r. 2007) ("Pennsylvania law makes clea
                                                         clearr no co
                                                                   court
                                                                      url has jurisdiction
                                                                              l urisdlc tion

 10
 1                        petition."). "If the petition is delermined
  0 hear an untimely PCRA pelition.").                     determined 10
                                                                      to be untimely,
                                                                            untimely, and

no exception
   excep tion has been pled a
                            and  prove n,, the petition must
                              nd proven                 must be dismissed
                                                                dIsmissed without
                                                                          withou t a

hea rin g because
hearing   beca use Pennsylva nia co urt s a
                   Pennsylvania             re without
                                          are           jurisdiction to cons
                                               wi thout jurisdiction    conS Ide
                                                                             id e r til
                                                                                    tt1 e meri ts of
                                                                                          merits

    petition." Commonwealth v. Perrin,
Ihe petilion."                 Pe rrin, 947 A.2d 1284,
                                                 1284, 1285
                                                       t285 (Pa.
                                                            (Pa . Super. 2008) .


        Pe tit Ioner was sentenced in
        Petitioner                 In 197 1, and his petition was filed
                                      1971,                       fil ed on Augu
                                                                            August
                                                                                 st 6,
                                                                                    6 , 201 2.

Although the record is unclear as to th
                                     the  exac t date thai his co nviction
                                        e exact                   nVIction beca me final a fte
                                                                           became          fterr

direc
directt review, Pe tition er cla
                Petitioner   claims
                                 im s that his judgment was affirm ed in 1971, and
                                                            affirmed           a nd It IS
                                                                                       IS


reasonable
rea            0 conc lude tha
    sonabl e 1to           thatt direct review would
                                               wou ld have concluded long before
                                                                          be fore August
                                                                                  Augus l 6 ,




                                                     5
                                                                                     Circulated 01/23/2015 01:04 PM




            9
   2011
   20 11 . 9 Thus, the Petitioner could not prove tha
                                                  thatt hi
                                                        hiss petition was filed within one (1)
                                                                                           ( 1) year

   of
   of the date that his judgment
                        Judgment became final
                                        final,, thereby
                                                th ereby making his petition
                                                                    pelilton facially untimely
                                                                                      unlimely

                C.S.
   under 42 Pa .C     §9545(b)(1).
                  .S. §9S4S(b)( 1).


                NOlwithslandlng the
                Notwithstanding Ihe fa
                                    faCia               nature of the petition,
                                       cia lly untimely nalure        petition , Ihe
                                                                                 th e Petitioner
                                                                                      Pelitloner seeks to
                                                                                                       10

   argue that
         tha t his claim under Miller v. Alabama ,, supra,
               hiS claim                            supra, is
                                                           IS cog ni zable under the third
                                                              cognizable             th ird

  exception to the timeliness
                   tim eliness requirement , which permits an Individual
                                                              individual seeking relief

                         retroactive , constitutional rule of law, to file a petition Within
  pursuant to a new, and retroactive,                                                 with in 60

  days of the dale Ihat
                   Ihat the claim cou
                                  could                  presented See 42 Pa
                                              firsl been presenfed.
                                      ld have first                       Pa.C.S.
                                                                             .C .S.

  §§9545(b)(1)(ili)
  §§9S4S(b)(1                    Pelilioner asserls
              )(ili) and (b)(2). Petitioner asserts that
                                                    Ihal his pelition
                                                             petition was timely
                                                                          tim ely in th
                                                                                     Ihis
                                                                                        is regard,

  as Miller
     Milier was decided on June 2S
                                25,, 20 12,, and his
                                     2012        hiS petition
                                                     pelition was filed on August
                                                                           Augusl 6,
                                                                                  6. 20 12 .

  However,
  However, Pelitioner's
           Petitioner's ability to meel
                                   meet the 60-day
                                            60·day filing deadline under 42

  Pa.C.S .§9S4S(b)( 2) is irrelevanl,
          §9545(b)(2)     irrelevant, because,
                                      because , even if Miller announced a new consiliulional
                                                                               cons tituti onal

  rule o
       off law,
           law, Petitioner has fa
                               failed  to prove Iha
                                  iled 10       Ihatl ilit applies retroactively to hiS case.
                                                                                        case .


               Cunningham, supra, the Pennsylvania Supreme Courl expressly held Ihal
            In Cunningham.                                                      that Ihe
                                                                                     th e

 ruling in Miller did not apply retroactively   to cases on collateral reView,
                                retroac tive ly 10                             Casess following
                                                                       review. Case

 Cunningham                 its ruling . For example, the Pennsylvania Superior Court
 C unningham have reaHirmed lis

 in Commonwealth v. Lawson
                    Lawson,, 90 A.3d
                                A,3d 1,
                                     I , 6 (Pa
                                           (Pa.. Super. 20 14) and Commonwealth v.

 Seskey,
 Seskey, 86 A.3d
            A,3d 237.
                 237, 242·43
                      242-43 (Pa . Super. 20 14) found Ihal
                                          2014)             Cunnin9ham direclly
                                                       that Cunningham

foreclosed any argumenl
               argument that
                        thai a Miller claim was cognizab le under 42
                                                cognizable

Pa.C .S.§9S4S(b)(1
Pa.C.S             )(iii).. In so holding, the
        §9545(b)( 1)(iii)                  Ihe Court offered Ihe
                                                             the following analysis of Ihe
                                                                                       th e

statu
statute:
      te:



9"
9 11 is unlikely Ihal
                 th ai ilit wo uld lake over forty (40) years to resolve hiS
                            would                                        his direci
                                                                             direct appeal.


                                                    6
                                                                                       Circulated 01/23/2015 01:04 PM




                  Subsection (iii) of Section 9S4S[(b)(1)]
                                               954S[(b)(1)J has Iwo
                                                                 two requiremenls.
                                                                      require ments. Firsl
                                                                                     Firs t , il
                                                                                              it
           provide s Ihallhe
           provides  that the righl
                              right asserted is a conslilulional
                                                  constitutional righllhal
                                                                 right that was recognized by
           Ihe
           the Supreme Court of Ihe     United Siales
                                    the Uniled States or [the
                                                         [Ihe Supreme Court o  off Pennsylvania]
                                                                                   PennsytvaniaJ
           after the time
                      tim e provided in th      section , Second, ifit provides that
                                             is section,
                                           this                                   mat the right 'has been
                     'thatt court ' to apply re troactively. Thu s, a petilioner
           held' by 'tha                                                petitione r musl
                                                                                    must prove Ihal
                                                                                                th a i Ihere
                                                                                                       there
           Is
           is a 'new' constitutional
                        consiliutional righl
                                        right and Iha
                                                   tha li the
                                                          lhe nghl
                                                              fight "has been held" by Ihal
                                                                                          that court 1to0
           apply retroac
                 relroaclively,  Thee language "has been held" is ,n
                         tively. Th                               in Ihe
                                                                     th e pasllense
                                                                          pasl le nse . These
           words mean that                                        "thatt court" has
                                                            i.e., "tha
                      thaI the action has already occurred, Le.,                l7as already
           held
           hetd the new consl1lutionat
                        conSl/tut/onal right to be retroactive to cases on collateral
                                                                           collaterat review.
                                                                                      review.
           By employing the pastpasl le
                                     te nse in writing this prOvision,
                                                            provision , the legislature clearly
                                                                                        clea rly
           in tend ed that the right was already recognized at tl7e
           intended                                                117e time the pellfion was filed.

  Seskey, supra, at 242-243 (emphasis added). Wilh
                                              Wi th respect  to Ihe
                                                    respec t 10 the meaning ol
                                                                            ollhe
                                                                               th e

         "he ld by thai
  phrase "held     that court":


                   [O]ur
                   [O)ur Supreme Court explained Ihal,                           subseclion (iii), Ihe
                                                        that, for purposes of subsection           th e
          language "has been held by Ihal               to apply relroaclively"
                                             that court 10        re troactively" means 'he
                                                                                         the court
          announcing
          a nnouncing the rule must have also ruled on the retroactivity of the new
          constitutional oght,
                          figh t, before
                                  be fo re the pelitioner
                                               petitioner can assert retroactive application o(  o ( the
          righ t in a PCRA petition.
                             petition.

 Taylor,
 Taylor, supra, at 1042 (citing
                        (Ci ting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 50
                                                                             5011 (Pa .

 2002)).
 2002».


         Not only did Ihe
                      the Uniled
                          United Siaies
                                 Slates Supreme Court slay
                                                      stay sile nt as 10 Ihe
                                                           silent        th e Issue o f

    troactivity
 re troa             Miller, it
         ctivi ty in Miller, if declined to review the issue
                                                       Issue on June 9,
                                                                     9, 2014, after
                                                                              a ft er being

 presented with the opportunity 1o
                                to revlsil
                                   revisit lhe
                                           the maNer,  re'verse the holding in Cunningham
                                               matter, reverse                 Cunningham,,

                    retroactive
 and declare Miller re troa ctive ., See Cunningham v. Pennsylvania,     S .Ct. 2724 (June
                                                       Pennsylvania, 134 S,C!.

9,2014)
9,20 14) (denying petition for writ of certioraff) .'o Th e Court's
                                                   .10 The  Court 's silence as to th e matter

prevenls
prevents Pelilioner
         Petitioner Irom relying on 42 Pa .C.S.§9545(b)(1 )(iii) as a vehicle
                                                                      ve h icle 10 challenge

the legality of his sentence.
ttle                                          beca use the Petitioner
                    sen tence. Acco rd ingly, because      Pe ti tione r canno
                                                                         ca nno t SllOW tha t his
                                                                                  show Ihat

pelilion
peti tion was lfiled
                iled within one ( 1) year of Ihe dale Ihal
                                             the date thai his conviction
                                                               convlcllon became final
                                                                                 frnal , and



10 See also hltp:/Iwww
            hlJp:llwww .supremecourLgov/orders/courlorders/060914zor_pQm
                       ,supremecourt.gov/orders/courtorders!060914zor_pqm l.pdf
                                                                          I .pdf (tast
                                                                                 (last visited
                                                                                       Visited on
November 7,7 , 2014)


                                                    7
                                                             21
                                                             Z'
                                                                                    Circulated 01/23/2015 01:04 PM




          he is unable
  because he    unable to
                       10 invoke
                          invo ke any of the
                                         Ihe exceptions under 42
                                                              42 Pa.C
                                                                 Pa C .S.§9545(b)(
                                                                      ,S,§9545(b) ( 1)(i) -

  (iii)
  (iu),, his peti tion is untimely,
             pe ltltOn    unlrmely, aand
                                      nd thi
                                         thiss court
                                               cou rt lacks
                                                      lacks jUrisdiction to enle rta ln the arguments
                                                                         10 entertain

  ra ised theretn
  raised  the re,n . Given that the
                                th e court was bound by Cunningham and 42

  Pa,C,S,§9545(b)(1)(lil),
  Pa.C.S.§9545(b)(1         ils decision
                    )(iii), its decIsion to
                                         10 dismiss the
                                                    Ihe pe
                                                        pelilion  should
                                                           tition shou td be upheld .


                                       PETITIONER'S
  II. THE COURT DID NOT ERR BY DENYING PETITIONER ' S REQUEST TO STAY

  DISMISSAL


         In his Concise S
                        Sialemenl,   Pelilioner argues that
                          ta tement, Petitioner        Ihallhe
                                                            the court erred by denying hiS
                                                                                       his

 requesl to
 request 10 slay its
                 lis dismissa l of the
                                   Ihe proceedings and cont
                                                       conlends  Ihal Ihe court
                                                            ends that     courl should have

 hailed Ihe
        th e procee dings unlil
             proceedings        "I he Pennsylva
                          until "the            nia Supreme Court (throu
                                      Pennsylvania                (Ihrough
                                                                         gh a success ful
                                                                              successful

 motion for reconsideration of [Cunni ngham))
                            of [Cunningham l) or United Slates
                                                        States Supreme Court makes a

 linal decision
 final deCision regarding the
                          Ihe issue of retroactivity
                                       relroacl ivily of Miller to
                                                                10 Defendant
                                                                   Defendanl and Similarly
                                                                                 sim ilarly

 situated defendan
          defendants
                   ts."
                     ." Concise Statem
                                Statement
                                       ent , p. 11 .


        Ass an initia l matter, the cou
        A                               rt noles
                                    court  no tes that
                                                  tha i,, in his response
                                                                 respo nse to the
                                                                              th e cou rt 's dismissal
                                                                                   court

 notice, Peli tioner requested
         Peti ltoner requ es ted that the case be stayed pending a deciSion from the
                                                                                 th e United
                                                                                      Unit ed

Siaies
S ta tes Suprem
         Supremee Court on whether
                           whelher it
                                   il would gra
                                            grant  cerllorari in Cunningham . While Ihe
                                                nl certiorari                       the

co urlt may nol
cour        not have formally slayed
                              stayed Ihe proceedings,, ifit did
                                     the proceedings        did,, for all praclica
                                                                          practicall purposes,
                                                                                     purpose s,

ullimalely honor Petitioner's request. Indeed, Petitioner
ultimately                                                  filed his
                                               Pe lilione rfiled               \0 this court
                                                                  "is response to      cou rt's
                                                                                             's

Notice    Inlenlt 10
Nolice of Inten   to dismiss on November 26, 20 13; Ihe
                                         26,2013;   the Uniled
                                                        United Siaies
                                                               States Supreme Courl
                                                                              Court

denied certiorari on
       certiorari o n June
                      Jun e g,
                            9, 20  4 ; and this court did not dis
                               20114                          dismiss       pe tition unlll
                                                                  m iss the petition  until

September t19,20
Seplember   9, 20 14. Accordingly.
                      Accordingly, Ihe
                                   lhe co url afforded Pelilloner
                                       court           Petitioner wllh
                                                                  wilh preCisely wilal he
                                                                       precisely what

requested,, which was a stay
requested                     "pending
                        sta y "pe nding the outcome
                                            outcom e of finaliza tion (Le"
                                                        fin alization (i.e ., a ruling by the
                                                                                          th e




                                                 B
                                                                                Circulated 01/23/2015 01:04 PM




   Unlled Sia
   Uniled States
              ies Supreme Court) of Commonwealth v. Cunningham ."." Pelilioner's
                                                                    Petilioner's

            10 Dismissal Notice,
   Response to           Notice, p. 2 .


           Furthermore, even if Petitioner had reques
           Furthermore.                               ted a stay
                                               requested    slay pending a general ruling

  from the United Slates Supreme Court on whelher
                                          whe ther Miller applied retroaclively,
                                                                  retroactively, it would

  not have been unreasonable lor
                             for Ihe
                                 the court to deny such a requesl
                                                          request given Ihe
                                                                        the time
                                                                            lime thai ilit

  could                                                Indeed, ifjf the law reqUires
  co uld take for such a ruling to eve r be rendered . Indeed,              require s that the

  declaralion of retroactivity come from the court thai
                                                   Ihal announced the new co
                                                                          constit utional
                                                                             nstitutional

                                               declared
  rule of law, then the chance of Miller being dec/a     retroacllve by the
                                                     red retroactive    Ihe Pennsylva nia
                                                                            Pennsylvania

                IS highly unlikely. Moreover, given the fac
  Supreme Court is                                      factl thai
                                                              that Ihe
                                                                   the United Stales
                                                                              States

 Supreme Court has stayed
                   slayed silent as to the issue,
                                           Issue, despite being presented
                                                                present ed with the

 opportunity
 opportuni ty to make such a declarat
                             declaration                                  it CQuid
                                      ion in both Miller and Cunningham , It could be years

 before itil revisIted      issue,, if it ever did al all.
             rev isited the issue                     aiL


               given:: {i}
         Thus, given   (i) Ihe
                           the uncertainly regarding when
                                                     when,, if ever, such a ruling wou ld eve
                                                                                          everr

    rendered, (ii) Ihe
 be rendered,      the unlikelihood thai
                                    that such a ru
                                                ruling           fa vorable 10
                                                   ling would be favorable  to Ihe
                                                                               the Petitioner
                                                                                   Petilioner

 given the Court's sile nce as to the issue, and (iii) 1I,;s
                                                       this court's
                                                             cou rt's need to manage its docket

 and ensure an effiCient resolution to the matters pending before it.
               efficient resolullon                                   it was
                                                                  it, if wa s well witt11n
                                                                                   within thiS
                                                                                           this

co urt's discre
court's         tion to deny the request
         discretion              reques t to stay the proceedings pendjng
                                                                  pending a general ruting
                                                                                    ruling

from Ihe
     th e United States
                 Stales Supreme Court on the retroaclivlly issue. See Commonwealth v.
                                             retroactivity Issue.

Renchenskl , 52 A.3d 251,
                     25 t , 260 (Pa. 2012) (noting thai
                                                   that "the
                                                        "Ihe PCRA court does have th
                                                                                  Ihee

ability and responsibility to manage its docket and case load and thus ha
abitity                                                                hass an essen
                                                                               essential
                                                                                     tial

role in ensu rrng the Ilmely
        ensuring      timely resolulion
                             resolution of PCRA matters.") (ci ti ng Commonwealth v.
                                                           (cHing                 v.

Porter.
Poner, 35 A.3d 4,
               4, 24--25
                  24-25 (Pa.
                         (Pa . 2012)
                               20t2) ('Flhe
                                     ("fTlhe court,
                                             co un , not counse
                                                         counselt,, controls Ihe
                                                                             the scope,

liming and pace of the             below.") ; See also Commonwealth v. Coward,
                   Ihe proceedings below.");                           Coward , 335,

                                                     9
                                                                               Circulated 01/23/2015 01:04 PM




   414 A.2d 91, 95 (Pa. 1980) ("A court's discrelion in handling liS own dockel has long

   been recogniz
        recognized.").
                 ed.") .


           In any even t, the court
                              cou rt notes that , if the United Sta les Supreme Court ever
                                                                Sla tes               eve r

  declares that Miller
                MirIer is retroactive to cases on collate
                                                  collateral
                                                          ral review
                                                              review,, th en the Petitioner

  presumably would be able to lile              petition under 42 Pa.C.S.§9545(b) relYing
                              file a successive pelition

  on such a case
            case,, assuming he did so wilhin
                                      within Ihe
                                             the 50-day filing deadline .
                                                 GO-day liling


  III. THE COURT'S LACK OF JURISDICTION OVER THE PETITION FORECLOSED
  ITS ABILITY TO CONSIDER CLAIMS UNDER ARTICLE I, SECTIONS 13 AND 14 OF
  THE PENNSYLVANIA CONSTITUTION

          In his Concise S tatemen
                           ta tem en t, Petitioner contends thai he should have been given
                                                                                     give n

  leave 10 file a second ame nded PCRA pelilion
                                       petition in order
                                                   orde r 1to
                                                            0 raise sla
                                                                    sta le
                                                                        te habeas corpus

 claims purs ua nt 1
        pursuant   to         " Section 14, in order to a
                    0 Article 1,                        argue
                                                          rgue Ihal
                                                               thai his sentence violated the
                                                                                          th e

 ban on cruel punishment set forth in Article 1, Section 13 of ttle Pennsylvania
                                                                    Penn sylvania

 Constitution . Contrary to Petitioner's claims,
                                         claims , the court did nol err in
                                                                        10 denying
                                                                           d enying his request

 to file a second amended PCRA pelition
 10                            pelilion to raise such clai
                                                      claims.
                                                           ms .


         In SeskeY,supra,
            SeskeY,supra, Ihe
                          the Pelitioner,
                              Petitioner, who
                                          w ho was a juvenile al
                                                              a t the time o
                                                                           01f his offense,

 liled
 fi led a PCRA petition , arguing,
                          arguing. among oth
                                         olher
                                             er tIlings:
                                                things: (t)
                                                         (1) Ihal
                                                             that his mandalory
                                                                      mandatory senlence
                                                                                sen tence of

 life
 lile without
      wilhout parole viola led Article 1, Sec lion
                                              tion 13 of Ihe
                                                         the Pennsylvania Constitution; (2) thai

Miller should
       sl10uld be applied retroaclively
                          retroactively pursuanl to Article 1t Section 13 of
                                                                          01 Ihe
                                                                             th e Cons
                                                                                  Conslltulion,
                                                                                       titution,

notwithstanding Ihe
                the Court's ruling in Cunningham;
                                      Cunningham ; and (3) Ihaillis
                                                           thaillis claims should be

reviewed under "Pennsylvania's constitutional   guarantee
                               co nstitut ional gua        off Habeas
                                                    rantee o   Ha beas Corpus,"
                                                                       Corpus." Id . at 2
                                                                                        241.
                                                                                          41.

    co urt found that Itit lacked junsdiction
The court                         jurisdiction over the petition
                                                        petil ion because the petition was

untimely and Ihallhe
unlrmely     that the pelition
                      pelillon did not meet
                                       meel any ollhe
                                                of the three exceptions sellorth
                                                                        se t forth In
                                                                                   in 42

Pa .C.S.§9545(b)(
   .C.S.§9S45(b)(11)(iii)
                   )(ili) ,

                                              10
                                                         ~a
                                                                                   Circulated 01/23/2015 01:04 PM




          In making thai
                    tha t finding
                          finding,, th e court in Seskey noted the followIng:


                 Throug
                 Througho
                        houtut his brief, Appellant a ttempts to circumvent the effect tha t
          Cunnmgham has upon our jurisdiction by arguing, inter alia:  alia. that
                                                                             thaI he is enl/tled
                                                                                           entitled to
                      ArtIcle tt,, § 13 of the Pennsylvania Constitution ("Excessive bail
         relief under Article
         retief                                                                               bait shall
         no t be required
         nol     required,, nO/
                            nor excessive fines imposed
                                                   imposed,, nor cruel
                                                                 cruel punishm
                                                                       punishment ents s inflic
                                                                                         in fl ic ted ,"),
         independen tly of Ihe
                             th e Eighth                         Appellanl 10-
                                  Eighlh Amendment, Brief for Appellant      10- 13;
                                                                                  13 ; Ihal
                                                                                       Ihat Miller
         should be applied retroa
                               retroacttvely
                                     cttve ly based upon Pennsylvania's
                                                          Pennsyl va nia's broader retroactivity
                                                                                       retroac ti vIty
         principles, Brief for Appellanl al 19-26
         pnnciples,                         19- 26;; and Ihal  the
                                                         tha tlh e inequilable
                                                                   inequitable resull Ihal
                                                                                      Iha t M iller
                                                                                            Miller
         crea ted viola
                  vio la tes Pennsylvania's due process and equal prot ec tion prin
                                                                               principles
                                                                                    ciples .
         Brief for Appe llant al 27-30. While th ese argum ents
                        llanl at                           enls someday may require
                                                                            requite
        consideration by our courts,
        conSideration           courts, today cacannot
                                                   nnot be that day. Before a cou rt may
        address Appellant's
                  Appellant' s argument
                               a rgumen ts,s, or simila r co
                                                          connttentions
                                                                entions , th at court
                                                                                co urt mu st have
        Jurisdiction. We cannot
                         ca nnol manufacture jurisdiction based upon the substantive
                raIsed by the parties. Presenlly,
        claims raised                    Presently we are confined by the express terms
                                                      I                                       lerms of
        subseclion 9545(b)(I
        subsection   9545(bj(lj(iiij
                                )(iiiJ and our Supreme Court's decision in Cunningham.
        Combined,
        Combined , those two elements re     require
                                               quire us to co nclude     thai we lack jurisdic tion.
                                                                 ncl ude that                    tion .
        No substantive claim can overcome this conclusion.

                 al 243.
 Seske y, supra, at 243 . Acco rdingly, because Ihis  courllacked
                                                thi s court lacked jurisdiction ove
                                                                                overr Ihe
                                                                                      th e

          pe tition, it
 unlimely petition,                                   th e substantive
                     It was unable to consider any of the  substanti ve cla
                                                                        claims
                                                                            ims presen ted

 therein. Give n that the
                      lhe court would
                                wou ld have been unable 1
                                                        to
                                                         0 e ntertain any of
                                                                          of th e argumen ts

 th att Pe
 tha    Petitioner
           titioner soughlto
                    sought to raise in a second amended petiti
                                                        petillOn,
                                                               on. the co urt did not err in

denying his request for leave
                        lea ve to file such a petition.
                                              pelition.


        Furthermore, although Pelitioner
                              Pefitioner reques ted Ihat
                                         requesled  that th
                                                         thee court re-characterize
                                                                    re-characleri ze his
                                                                                     11is

pe tition as a slale
               slate habeas corpus peti
                                   petition
                                        tion,, "[i]t    well-sellied Ihallhe
                                               "[iJI is well-sellled Ihatthe PCRA is
                                                                                  IS intended
                                                                                     inlended

to be Ihe
      th e sale means of achieving post-convic
                                   pos t-conviction
                                               tion relief" and
                                                            a nd "a defendant ca
                                                                              canno
                                                                                 nnott

                time-bar by lithng
escape the PCRA lIme-bar    titling his petition                writ of habeas corpus."
                                        pelition or motion as a wril           corpus ."

Commonwealtll v. Taylor, 65 A.3d 462,
Commonwealth                     462, 465-66 (Pa. Super.
                                                  Super. 20 13 ). Pelitioner
                                                                  Pe titioner cclearly
                                                                                learly

seeks to challenge
         cha llenge the legality of his sentence.
                                        sen tence, and claim
                                                       claimss "that are cognizable under

Ihe
th e PCRA must be raised in a ltimely
                                imely PCRA pelition
                                           petition and can not be raised in a habeas


                                                 11
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 co rpu   pelltion." lit
    rpuss petItion."         Accordingly. because Petitioner's claims were cognizable under
                     .!.Q.,. Accordingly,

 th e PCRA,
      PCRA. this cou
                 court
                     rt did not err in denying his
                                               hi s requesllo amend Ihe
                                                                    the PCRA
                                                                        PC RA petition so

 that Petitioner could re-charac
 Ihat                                                                   pe tition . See
                       fe-charac terize his petition as a habeas corpus petilion

 Taylor, supra,
 Taylor, supra, al 466 ("Beca use Appellant's claims may be addressed under Ihe
                                                                            the PCRA
                                                                                PC RA

 see 42 Pa
        Pa,C   S. § 9543(a)(2)(i) (providing
           .C.,S,                               that
                                                thai PCRA relief IS
                                                                 is available for convic  tion
                                                                                  co nvic lio nss

 resulting from constitutional viola
                               vIola tions),
                                     tions) , the
                                              th e PCRA court
                                                        cou rt properly dismissed Appellant's
                                                                                  Appellant 's

 habeas
 ha      corpus
    beas co rpu s pelition as an
                              an unlimely      petitio n."),
                                 untimely PCRA petition.").


 IV ., CONCLUSION
       CON CLUSION


       ThIS
       Thi s cou rt did not err in dismi
                                   dismissing
                                         ssing th e PCRA pelition because the pe lition
                                                                                 tit ion was

facia
facially
      ll y un
           untIm
              tim ely,
                  ely, and it failed to raise
                                        rai se a claim thai
                                                       that fell under any of the exceptions
                                                                                  excepti ons 1
                                                                                              to
                                                                                               0 the

slatu to ry ltime
statutory     ime ·bar.
                  -bar, The co urt did not err in
                                               In denying Petitioners           to file a second
                                                          Petitioner's req uest 10

amended PCRA
        PC RA pelilion because Ihe
                               the court lacked jurisdiclion   0 consider any
                                                jurisdiction 1to

substan ti ve argum
sub stantive        ents in the petition. Moreover,
              a rguments                            th e PC RA pe
                                          Moreover, the           tilion could nol
                                                               petilion        not be re-
                                                                                      re ·

charac te rized as a habeas corpus pelilion
characterized                      petition since Petitioner's
                                                  Petitione r's claims were cognizable
                                                                            cognIzable

underr th e PCRA stat ut
unde                  Llt e. Accordingly,
                             Acco rdingly, the court 's decision to dismISS
                                               court's              dismiss the
                                                                            th e amended

PCRA pe tition    untimely should be upheld.
        tilion as unlimely           upheld _


                                             BY THE C0URT:



                                             ::-c:"1~¢::'~B~=,                         J.
                                             Beth




                                            Date



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