J-S63045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :          IN THE SUPERIOR COURT OF
                                           :                PENNSYLVANIA
                   Appellee                :
                                           :
            v.                             :
                                           :
MICHAEL REDDING,                           :
                                           :
                   Appellant               :             No. 1695 EDA 2015

                   Appeal from the PCRA Order May 27, 2015
              in the Court of Common Pleas of Delaware County,
                Criminal Division, No. CP-23-CR-0004817-1986

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED DECEMBER 28, 2015

      Michael    Redding   (“Redding”),   pro   se,   appeals   from   the   Order

dismissing his “Petition for Writ of Habeas Corpus Ad Subjiciendum.”1          We

affirm.

      On June 2, 1987, Redding entered guilty pleas to third-degree murder

and robbery, and a nolo contendere plea to burglary.             The trial court

sentenced Redding to thirty to sixty years in prison. Redding filed a timely




1
  Any petition filed after the judgment of sentence has become final will be
treated as a Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Jackson,
30 A.3d 516, 521 (Pa. Super. 2010). The PCRA is the sole means of
obtaining collateral relief, and subsumes all other remedies, including habeas
corpus. Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013); 42
Pa.C.S.A. § 9542. In his Petition, Redding challenges the legality of his
sentence. Thus, the PCRA court properly treated Redding’s Petition was as a
PCRA Petition. See 42 Pa.C.S.A. § 9543(a)(2).
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direct appeal, but later withdrew it in October 1987. Redding subsequently

filed numerous PCRA Petitions, all of which have been denied.

      On April 15, 2015, Redding filed the instant Petition. The PCRA court

treated the Petition as a PCRA Petition. After issuing a Notice of Intent to

Dismiss pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed the

Petition. Redding filed a timely Notice of Appeal.

      Our standard of review regarding a PCRA court’s dismissal of a petition

for relief is whether the PCRA court’s decision is supported by the evidence

of record and is free of legal error.        Commonwealth v. Garcia, 23 A.3d

1059, 1061 (Pa. Super. 2011).

      Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date that the judgment

becomes final[.]”    42 Pa.C.S.A. § 9545(b)(1).            A judgment of sentence

becomes final “at the conclusion of direct review, including discretionary

review in the Supreme Court of the United States and the Supreme Court of

Pennsylvania,   or   the   expiration   of    time   for   seeking   review.”   Id.

§ 9545(b)(3).    The PCRA’s timeliness requirements are jurisdictional in

nature and a court may not address the merits of the issues raised if the

PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d

1091, 2093 (Pa. 2010).

      Here, Redding’s judgment of sentence became final in October 1987,

when he withdrew his direct appeal. See Commonwealth v. Conway, 706



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A.2d 1243, 1244 (Pa. Super. 1997). Thus, Redding’s instant Petition, filed

on April 15, 2015, is facially untimely under the PCRA.

      However, we may address an untimely PCRA Petition where the

appellant pleads and proves one of three statutory exceptions.         See 42

Pa.C.S.A. § 9545(b)(1)(i-iii).   Any PCRA petition invoking one of these

exceptions must be filed within sixty days of the date the claim could have

been presented. Id. § 9545(b)(2).

      Here, Redding claims that the United States Supreme Court’s decision

in Alleyne v. United States, 133 S. Ct. 2151 (2013), affords him relief

under the newly recognized constitutional right exception at 42 Pa.C.S.A.

§ 9545(b)(1)(iii).   Brief for Appellant at 7-16.   In Alleyne, the Supreme

Court held the following:

      Any fact that, by law, increases the penalty for a crime is an
      “element” that must be submitted to the jury and found beyond
      a reasonable doubt. Mandatory minimum sentences increase the
      penalty for a crime. It follows, then, that any fact that increases
      the mandatory minimum is an “element” that must be submitted
      to the jury.

Alleyne, 133 S. Ct. at 2155.         Redding argues that Alleyne applies

retroactively to his case, requiring that his sentence should be vacated and

the case remanded for re-sentencing. Brief for Appellant at 7-9, 10-13.

      Alleyne and its progeny are inapplicable in this case, as Redding’s

sentence does not include a mandatory minimum sentence.             See PCRA

Court Opinion, 6/18/15, at 2. Even if Alleyne applied, Redding did not file

the instant PCRA Petition within sixty days of the date that the Alleyne


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decision was filed, as required to invoke the exception under the PCRA. See

Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating

that to raise an exception under section 9545(b)(1)(iii), “the sixty-day

period begins to run upon the date of the underlying judicial decision.”).

Moreover, this Court has held that the Alleyne decision is not a sufficient

basis to invoke the exception at section 9545(b)(1)(iii), as the decision does

not apply retroactively.   See Commonwealth v. Riggle, 119 A.3d 1058,

1067 (Pa. Super. 2015). Accordingly, Redding has failed to plead and prove

the exception provided in 42 Pa.C.S.A. § 9545(b)(1)(iii) to overcome the

untimeliness of his Petition.2

      Thus, the PCRA court did not err in dismissing Redding’s Petition as

untimely.3

      Order affirmed.



2
  While Redding correctly stated that challenges to the legality of sentence
are generally non-waivable, such claims “may [only] be entertained so long
as the reviewing court has jurisdiction.” Commonwealth v. Robinson, 931
A.2d 15, 19-20 (Pa. Super. 2007) (en banc) (emphasis added).
3
  Redding also cites to Miller v. Alabama, 132 S. Ct. 2455 (2012), and
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), to support his
claim. Brief for Appellant at 7-8, 9-10, 12, 13. The Miller Court held that
sentencing schemes mandating life-without-parole sentences for juveniles,
who committed their crimes while under the age of eighteen, violated the
Eighth Amendment prohibition on cruel and unusual punishment. Miller,
132 S. Ct. at 2460; see also Cunningham, 81 A.3d at 10 (stating that
Miller does not apply retroactively to juveniles in Pennsylvania). While the
United States Supreme Court granted certiorari and heard argument in
Montgomery v. Louisiana, 135 S. Ct. 1546 (2015), to determine whether
Miller applies retroactively, the Miller case is inapplicable to Redding.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2015




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