J-S41031-16


                                  2016 PA Super 106

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SAMUEL T. ROSS,

                            Appellant                 No. 2715 EDA 2015


                 Appeal from the PCRA Order August 17, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003055-1996

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                             FILED MAY 23, 2016

        Appellant Samuel T. Ross appeals pro se from the order entered in the

Court of Common Pleas of Montgomery County dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. The PCRA court dismissed the petition without a hearing on the basis

it was untimely filed. We affirm.

        On January 21, 1997, Appellant entered an open guilty plea to, inter

alia, third-degree murder,1 and on May 19, 1997, he was sentenced to a

term of 30 to 60 years in prison. Appellant filed a timely direct appeal, and

this Court affirmed his judgment of sentence on January 20, 1998.

Commonwealth v. Ross, No. 02823 PHL 97 (Pa.Super. filed 1/20/98)
____________________________________________


1
    18 Pa.C.S.A. § 2502(c).



*Former Justice specially assigned to the Superior Court.
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(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with our Supreme Court.

         Appellant filed a timely, first PCRA petition, which was denied without

a hearing on February 17, 1999.                Thereafter, he filed numerous PCRA

petitions, all of which have been dismissed as untimely.         On November 5,

2013, Appellant filed the instant PCRA petition,2 and thereafter, he filed

several supplemental petitions. The PCRA court provided notice of its intent

to dismiss the petition without a hearing, and by order entered on August

17, 2015, the PCRA court dismissed the petition on the basis it was untimely

filed.    This timely appeal followed.

         Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).       “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”             Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).


____________________________________________


2
  Although Appellant’s pro se PCRA petition was docketed on November 8,
2013, the prison envelope in which Appellant’s petition was mailed bears a
time stamp of November 5, 2013. Accordingly, pursuant to the prisoner
mailbox rule, we deem Appellant’s instant PCRA petition to have been filed
on November 5, 2013. See Commonwealth v. Patterson, 931 A.2d 710
(Pa.Super. 2007) (discussing the prisoner mailbox rule).



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      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law of the United States;

      (ii)     the facts upon which the claim is predicated were
               unknown to the petitioner and could not have been
               ascertained by the exercise of due diligence; or

      (iii)    the right asserted is a constitutional right that was
               recognized by the Supreme Court of Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

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      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted). Moreover, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline. Our Supreme Court has held

that any petition invoking an exception must show due diligence insofar as

the petition must be filed within 60 days of the date the claim could have

first been presented. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d

339 (2013).

      Here, Appellant’s sentence became final on February 19, 1998, when

the time for filing a petition for allowance of appeal to the Pennsylvania

Supreme Court expired. See Pa.R.A.P. 1113 (“[A] petition for allowance of

appeal shall be filed with the Prothonotary of the Supreme Court within 30

days after the entry of the order of the Superior Court[.]”). Therefore, he

had until February 19, 1999, to file a timely PCRA petition.      The instant

petition was not filed until November 5, 2013, and therefore, the petition is

facially untimely. See 42 Pa.C.S.A. § 9545(b)(1).

      This does not end our inquiry, however, as Appellant asserts that he

qualifies for a timeliness exception under 42 Pa.C.S.A. § 9545(b)(1)(iii),

based on a newly-recognized constitutional right that should be applied

retroactively to his case on collateral review. Specifically, Appellant points




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to the United States Supreme Court’s recent ruling in Peugh v. United

States, ___ U.S. ___, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013).

       In Peugh, the U.S. Supreme Court recognized that the Ex Post Facto

Clause is violated when a defendant is sentenced under Guidelines

promulgated after he committed his criminal acts and the new version

provides a higher sentencing range than the version in place at the time of

the offense. However, assuming, arguendo, Appellant was sentenced under

circumstances encompassed in Peugh, we conclude Appellant has not

otherwise met the newly-recognized constitutional right exception.3

       In considering whether Appellant has advanced a valid claim asserting

a newly-recognized constitutional right, as that phrase is used in Section

9545(b)(1)(iii), our Supreme Court has noted:

       Subsection (iii) of Section 9545 [(b)(1)] has two requirements.
       First, it provides that the right asserted is a constitutional right
       that was recognized by the Supreme Court of the United States
       or this court after the time provided in this section. Second, it
       provides that the right “has been held” by “that court” to apply
       retroactively. Thus, a petitioner must prove that there is a
       “new” constitutional right and that the right “has been held” by
____________________________________________


3
  With regard to the sixty day due diligence requirement, we note that
Peugh was filed on June 10, 2013, but Appellant did not file his instant
PCRA petition until November 5, 2013. However, our Supreme Court did not
deny Appellant’s petition for allowance of appeal with regard to his tenth
PCRA petition until September 18, 2013, and subsequently, Appellant filed
the instant PCRA petition within 60 days. Thus, we conclude he met the
sixty day due diligence requirement for invoking a timeliness exception at
the first available opportunity. See Commonwealth v. Lark, 560 Pa. 487,
493-94, 746 A.2d 585, 588 (2000).




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      that court to apply retroactively. The language “has been held”
      is in the past tense. These words mean that the action has
      already occurred, i.e., “that court” has already held the new
      constitutional right to be retroactive to cases on collateral
      review. By employing the past tense in writing this provision,
      the legislature clearly intended that the right was already
      recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 596 Pa. 104, 109–10, 941 A.2d 646,

649–50 (2007) (quotation omitted). Thus, to satisfy the time bar, Appellant

must establish both that Peugh recognized a new constitutional right and

that it applies retroactively. Commonwealth v. Chambers, 35 A.3d 34, 41

(Pa.Super. 2011).

      We dispose of the instant matter by noting that the U.S. Supreme

Court espoused its holding in Peugh on direct appeal and has not indicated

it is to apply retroactively to cases on collateral review wherein the judgment

of sentence has already become final.      Moreover, to the extent Appellant

argues that Peugh applies retroactively under the framework set forth by

the U.S. Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,

103 L.Ed.2d 334 (1989), which was subsequently adopted by a majority of

our Supreme Court in Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345

(2011), and to which this Court generally looks in determining retroactivity

of new federal constitutional rulings, we disagree.

      This   Court   recently   acknowledged   that   “[t]he   seminal   test   in

determining whether a constitutional rule warrants retroactive application




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during collateral review was delineated in Teague[.]” Commonwealth v.

Riggle, 119 A.3d 1058, 1065 (Pa.Super. 2015) (citations omitted).

      “Under the Teague framework, an old rule applies both on direct
      and collateral review, but a new rule is generally applicable only
      to cases that are still on direct review. A new rule applies
      retroactively in a collateral proceeding only if (1) the rule is
      substantive or (2) the rule is a ‘watershed rule of criminal
      procedure’ implicating the fundamental fairness and accuracy of
      the criminal proceeding.”

Riggle, 119 A.3d at 1065 (quoting Whorton v. Bockting, 549 U.S. 406,

416 (2007)).

      As noted, the United States Supreme Court has utilized a substantive

and procedural rule dichotomy in analyzing retroactivity.          See Teague,

supra. “Substantive rules are those that decriminalize conduct or prohibit

punishment against a class of persons. Concomitantly, the Supreme Court

has made clear that ‘rules that regulate only the manner of determining the

defendant's culpability are procedural.’” Riggle, 119 A.3d at 1066 (quoting

Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519 (2002) (citation

omitted)).

      With regard to the first prong of the Teague framework, the federal

high Court in Peugh, 133 S.Ct. at 2083, indicated that “failing to calculate

the   correct   Guideline   range   constitutes   procedural   error,”   thus   the

implication is that the rule announced in Peugh will not be applied

retroactively. Moreover, the rule announced in Peugh did not decriminalize

conduct or prohibit punishment against a class of persons. Riggle, 119 A.3d



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at 1066. Accordingly, under the Teague framework, the rule announced in

Peugh is not a substantive one to be applied retroactively in collateral

proceedings.

      With regard to the second prong of the Teague framework,

watershed    rules    of   criminal      procedure    are   those     that   “‘alter   our

understanding of the bedrock procedural elements’” of the adjudicatory

process. Teague, 489 U.S. at 311, 109 S.Ct. at 1060. A watershed rule

“must be one ‘without which the likelihood of an accurate conviction is

seriously diminished.’” Schriro, 542 U.S. at 352, 124 S.Ct. 2519 (quotation

omitted) (emphasis in original). This “class of rules is extremely narrow[.]”

Id.

      We conclude Peugh did not establish a watershed rule of criminal

procedure because it simply changed the discretion afforded to judges in

determining which Guidelines to apply at sentencing.                Accordingly, Peugh

did not set forth a watershed rule of criminal procedure such that it would

apply retroactively under Teague.

      In sum, the rule announced in Peugh does not constitute a newly-

recognized     constitutional   right,    as   that   phrase   is    used    in   Section




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9545(b)(1)(iii). Accordingly, the dismissal of Appellant’s instant PCRA

petition was proper, as it was untimely.4

       Affirmed.

       Judge Dubow joins the Opinion.

       PJE Bender files a Concurring Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2016




____________________________________________


4
  Appellant alleges that appellate counsel was ineffective in failing to file a
petition for allowance of appeal on direct appeal. However, as our Supreme
Court has held, “[a] claim of ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits.” Commonwealth
v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999).




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