J-S81021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RONMEL WILLIAMS

                            Appellant                  No. 1224 EDA 2016


                    Appeal from the PCRA Order April 5, 2016
                 In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-CR-0003755-2009


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                         FILED FEBRUARY 21, 2017

       Ronmel Williams appeals from the April 5, 2016 order entered by the

Lehigh County Court of Common Pleas dismissing his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

       On June 15, 2010, Williams pled guilty to two counts of criminal

attempt (homicide).1 On August 17, 2010, the trial court sentenced Williams

to two concurrent terms of 15 to 30 years’ incarceration.        On August 24,

2010, he filed a post-sentence motion to reconsider sentence, which the trial

court denied on August 27, 2010. On September 8, 2010, Williams filed a

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 901.
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direct appeal, challenging the discretionary aspects of his sentence. On May

11, 2011, this Court denied Williams’ petition for allowance of appeal from

the discretionary aspects of his sentence and allowed counsel to withdraw.

        On May 27, 2011, Williams filed a pro se “petition for review” in the

trial court.   The trial court denied Williams’ petition.      On June 29, 2011,

Williams filed a notice of appeal from the trial court’s order. On March 7,

2012, this Court vacated the trial court’s order and remanded with directions

that the petition be considered Williams’ first PCRA petition and that counsel

be appointed to represent Williams. After a hearing on May 11, 2012, the

PCRA court dismissed Williams’ petition and granted his PCRA counsel’s

request to withdraw. Williams appealed, and this Court affirmed on May 8,

2013.

        On   September   16,    2014,   Williams   filed   a   “Motion   to   Correct

Patent/Obvious Error Nunc Pro Tunc.”          The PCRA court considered the

motion as Williams’ second PCRA petition, which it dismissed on November

21, 2014. Williams appealed, and this Court affirmed the PCRA court’s order

on August 12, 2015.

        On March 4, 2016, Williams filed the instant pro se PCRA petition, his

third. On March 8, 2016, the PCRA court sent Williams notice of its intent to

dismiss his petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907.        On March 31, 2016, Williams responded to the

PCRA court’s notice of intent to dismiss. On April 5, 2016, the PCRA court




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dismissed Williams’ petition.    On April 19, 2016, Williams timely filed a

notice of appeal.

      Williams raises the following issues on appeal:

         1. Did sentencing court err in Sentencing Appellant to a
         15-30 years sentence for an Attempted Homicide Where
         Serious Bodily Injury (SBI) was never found clearly
         violates Title 18 PaC.S. § 1102(c)?

         2. Did trial court err in not holding Appellant’s PCRA claims
         in the fashion of an illegal and unconstitutional sentence?

Williams’ Br. at 6.

      Before addressing the merits of Williams’ PCRA petition, we must first

determine whether his petition was timely.

      It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final.”         42 Pa.C.S. § 9545(b)(1).      A

judgment is final “at the conclusion of direct review, including discretionary

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

Pennsylvania, or at the expiration of time for seeking [] review.” 42 Pa.C.S.

§ 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:



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

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

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

42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

       Williams’ judgment of sentence became final on June 10, 2011, when

the time to seek review in the Pennsylvania Supreme Court expired.2        He

had one year from that date, that is, until June 10, 2012, to file a timely

PCRA petition.      His current petition, filed on March 4, 2016, is therefore

facially untimely. Williams’ petition remains untimely unless it alleges and

proves a PCRA time-bar exception.


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       2
         Williams did not file a petition for allowance of appeal with our
Supreme Court within 30 days after this Court affirmed his sentence on May
10, 2011. See Pa.R.A.P. 1113(a) (“[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 . . . sought to be reviewed.”).



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       Williams appears to argue that his petition is timely under the newly

recognized constitutional right exception to the PCRA time bar. 3          He

contends that his PCRA petition was timely because he filed it within 60 days

of the United States Supreme Court’s decision in            Montgomery v.

Louisiana, 136 S.Ct. 718 (2016). Williams’ Br. at 8-9. In Montgomery,

the Supreme Court held that Miller v. Alabama, 132 S.Ct. 2455 (2012),

created a substantive rule that applies retroactively to cases on collateral

review. Montgomery, 136 S.Ct. at 732. In Miller, the Supreme Court 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.’” 132 S.Ct. at 2460 (emphasis added).

       Although Williams filed the instant PCRA petition within 60 days of the

Montgomery decision, neither Montgomery nor Miller provides Williams

with relief. First, Williams was 24 years old at the time he committed his

crimes, and the Miller rule is limited to those who were under the age of 18.

Second, Williams was sentenced to two concurrent 15- to 30-year

sentences, not a life sentence without parole; Montgomery did not extend

Miller’s ruling to non-life sentences.



____________________________________________


       3
         “The Constitutionality in Montgomery, where Substantive Due
Process applies to Appellant and the new ruling gives Appellant 60 days to
file under 42 Pa.C.S.A. § 9545(b)[(1)](iii).” Petition for Post Conviction
Relief Act, 3/4/16, at 6.



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       To the extent Williams argues that he is entitled to present PCRA

claims pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), and

Apprendi v. New Jersey, 530 U.S. 466 (2000), he failed to file his petition

within 60 days of both of these decisions as required by section 9545(b)(2).

Moreover, our Supreme Court has held that Alleyne does not apply

retroactively to cases pending on collateral review.     Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016).

       Because Williams has neither alleged nor proven any exception to the

one-year time bar, the instant PCRA petition is untimely. Accordingly, the

PCRA court properly dismissed the petition.4

       Order affirmed.




____________________________________________


       4
        The PCRA court dismissed Williams’ petition without an evidentiary
hearing. “We review the PCRA court’s decision dismissing a petition without
a hearing for an abuse of discretion.” Commonwealth v. Miller, 102 A.3d
988, 992 (Pa.Super. 2014). We note that the right to an evidentiary hearing
on a PCRA petition is not absolute. Id. “[A] PCRA court may decline to hold
a hearing on [a] petition if petitioner’s claim is patently frivolous or lacks
support from either the record or other evidence.” Commonwealth v.
duPont, 860 A.2d 525, 530 (Pa.Super. 2004). Here, the PCRA court did not
abuse its discretion by dismissing Williams’ PCRA petition without an
evidentiary hearing, as it found that the petition was without merit. Order,
4/5/16, at 1.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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