J-S69014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

PAUL A. FERGUSON

                            Appellant                      No. 203 MDA 2016


             Appeal from the PCRA Order entered October 14, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at Nos: CP-22-CR-0001353-1996;
              CP-22-CR-0001354-1996; CP-22-CR-0001355-1996


BEFORE: STABILE, DUBOW, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED DECEMBER 23, 2016

        Appellant, Paul A. Ferguson, appeals from the order the Court of

Common Pleas of Dauphin County entered on October 14, 2015 dismissing

his second petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-46. Upon review, we affirm.

        We summarized the factual background of this matter in our

memorandum addressing Appellant’s direct appeal.              Accordingly, we need

not repeat it here. See Commonwealth v. Ferguson, 358 HGB 1997 (Pa.

Super. filed June 9, 1998).           Briefly, Appellant was involved in a home

invasion, followed by assaultive conduct on the residents. At the time of the

crimes, Appellant was 15-years old.            After a trial, a jury found Appellant
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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guilty of two counts of criminal attempt (homicide), three counts of

aggravated assault, and one count of burglary.     The trial court sentenced

Appellant to an aggregate term of incarceration of 36 years to 72 years. On

June 9, 1998, this Court reversed Appellant’s conviction on one of the counts

of aggravated assault and remanded for resentencing. Id.       The Supreme

Court denied the     Commonwealth’s petition for allowance of appeal.

Commonwealth v. Ferguson, 734 A.2d 392 (Pa. 1998).

     Following resentencing, Appellant was sentenced to an aggregate term

of 30 years to 60 years’ imprisonment.      Appellant appealed again to this

Court. We affirmed. See Commonwealth v. Ferguson, 542 MDA 99 (Pa.

Super. filed November 18, 1999).     The Supreme Court denied Appellant’s

petition for allowance of appeal on April 11, 2000.      Commonwealth v.

Ferguson, 757 A.2d 928 (Pa. 2000).

     On May 22, 2001, Appellant filed his first PCRA petition, which the

PCRA court dismissed on April 2, 2002.      Appellant appealed to this Court.

We affirmed on June 3, 2003.      See Commonwealth v. Ferguson, 953

MDA 2002 (Pa. Super. filed June 3, 2003).

     Appellant filed the instant PCRA petition on December 8, 2014. The

PCRA court dismissed the petition on October 14, 2015.           This appeal

followed.

     “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

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Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                    All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.    42 Pa.C.S.A. § 9545(b)(1).            “The PCRA’s time

restrictions are jurisdictional in nature.        Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”     Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).    As timeliness is separate and distinct from the

merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.   See Commonwealth v. Stokes, 959 A.2d

306, 310    (Pa.   2008)   (consideration    of   Brady   claim   separate   from

consideration of its timeliness).   The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the

legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“Although legality of sentence is always subject to review within

the PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(1999)).




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        Appellant acknowledges that the instant PCRA petition is facially

untimely.     However, he alleges that since his sentence is illegal under

Apprendi1 and/or Alleyne,2 the PCRA time-bar does not apply.                 We

disagree.     Apprendi and Alleyne do not apply retroactively to cases

pending on collateral review.         See Commonwealth v. Washington, 142

A.3d 810, 819-20 (Pa. 2016). Accordingly, Apprendi and Alleyne do not

provide any support for Appellant’s timeliness argument.

        Appellant also argues that Miller3 is relevant to the issue of timeliness

of his PCRA petition. Even if Miller makes his petition timely, Appellant has

no claim under Miller. Miller held that “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller, 132

S.Ct. at 2460. As noted above, Appellant was not sentenced to life without

parole. As such, reliance on Miller is misplaced.




____________________________________________


1
  Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any facts,
other than the fact of a prior conviction, that subject a defendant to any
additional penalty beyond a statutory maximum must be submitted to a jury
and be found proved beyond a reasonable doubt).
2
 Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that a jury
must find beyond a reasonable doubt any fact triggering a mandatory
minimum sentence).
3
    Miller v. Alabama, 132 S.Ct. 2455 (2012).



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     Because the instant PCRA petition is patently untimely, and Appellant

failed to prove he met any of the exceptions to the timeliness requirements,

we cannot review the merits of Appellant’s challenges. Chester, supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




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