J-S27030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RODERICK BALL                              :
                                               :
                      Appellant                :   No. 2512 EDA 2016

                   Appeal from the PCRA Order July 19, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1111572-2000


BEFORE:       GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                                    FILED APRIL 28, 2017

        Roderick Ball appeals pro se from the order entered July 19, 2016, in

the Court of Common Pleas of Philadelphia County that dismissed, as

untimely, his second petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA).1          In this appeal, Ball challenges the PCRA

court’s dismissal of his petition, and in support of his position cites the

United States Supreme Court decision of Montgomery v. Louisiana, 135 S.

Ct. 1546 (2015). Based upon the following, we affirm.

        This Court previously summarized the background of this case, as

follows.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541–9546.
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       On February 10, 2003, a jury convicted [Ball] of aggravated
       assault, recklessly endangering another person, violating the
       Uniform Firearms Act, possessing instruments of crime, and
       criminal conspiracy. On May 13, 2003, the trial court sentenced
       [Ball] to a term of fifteen to thirty years’ imprisonment. [2] [Ball]
       thereafter filed post-sentence motions, which the trial court
       denied on September 19, 2003. [Ball] did not file a direct
       appeal.

       On March 24, 2005, [Ball] filed a “Motion to Reinstate
       Petitioner’s Appellate Rights Nunc Pro Tunc.” On May 18, 2005,
       the PCRA court scheduled a hearing for June 8, 2005, on [Ball’s]
       motion, which it aptly treated as a PCRA petition. … However,
       the record contains no indication that such hearing took place.
       Rather, on June 12, 2006, [Ball] filed a pro se PCRA petition. On
       August 25, 2006, [Ball] filed an amended pro se PCRA petition.
       On September 20, 2006, the PCRA court appointed counsel for
       [Ball]. Rather than filing an amended petition, PCRA counsel filed
       a motion to withdraw and a no-merit letter, on February 12,
       2007 …. On March 19, 2007, the PCRA court issued notice of its
       intention to dismiss [Ball’s] PCRA petition without a hearing,
       pursuant to Pa.R.Crim.P. 907. On May 15, 2007, the PCRA court
       entered an order dismissing [Ball’s] PCRA petition as untimely
       and permitting PCRA counsel’s withdrawal.

Commonwealth v. Ball, 951 A.2d 1204 [2077 EDA 2007] (Pa. Super.

2008) (unpublished memorandum).                This Court affirmed the dismissal of

Ball’s first PCRA petition, see id., and the Pennsylvania Supreme Court

denied allowance of appeal.         Commonwealth v. Ball, 956 A.2d 431 (Pa.

2008). On March 25, 2016, Ball filed this second PCRA petition. The PCRA

court concluded the petition was untimely, and dismissed the petition on July

____________________________________________


2
  The PCRA court’s opinion states that Ball was sentenced to 16½ to 35
years’ imprisonment. See PCRA Court Opinion, 10/3/2016, at 1. The
certified record does not reveal how the individual sentences were
aggregated.



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19, 2016.       This timely appeal followed, in which Ball argues that his

sentence is illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013),

the holding of which he contends was made retroactive under Montgomery

v. Louisiana, 136 S. Ct. 718 (2016).3          See Ball’s Brief at 6.

       “Our review of a PCRA court’s decision is limited to examining
       whether the PCRA court’s findings of fact are supported by the
       record, and whether its conclusions of law are free from legal
       error.” Commonwealth v. Cox, 146 A.3d 221, 226 n.9 (Pa.
       2016) (citation omitted).

       The PCRA’s timeliness requirements are jurisdictional; therefore,
       a court may not address the merits of the issues raised if the
       petition was not timely filed. The timeliness requirements apply
       to all PCRA petitions, regardless of the nature of the individual
       claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).

       A PCRA petition must be filed within one year of the date the

underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). In our prior

decision affirming the denial of relief on Ball’s first PCRA petition, we agreed

with the determination of the PCRA court that the petition was untimely

filed. See Ball, supra, 951 A.2d 1204 (Pa. Super. 2008) (unpublished

memorandum). The same is true here. Ball’s judgment of sentence became

final on Monday, October 20, 2003, 30 days after the trial court’s denial of

his post-trial motions, when the time for filing a direct appeal had expired.

Therefore, Ball had until October 20, 2004, to file a timely PCRA petition.
____________________________________________


3
 The PCRA court did not order Ball to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal.



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See id. Accordingly, the petition presently before us, filed 12½ years after

the judgment became final, is facially untimely.

       Nevertheless, an untimely PCRA petition may still be considered if one

of   the   three    time-for-filing    exceptions   applies.   See   42   Pa.C.S.   §

9545(b)(1)(i)-(iii). A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim

could have first been brought. 42 Pa.C.S. § 9545(b)(2).

       Here, Ball argues his claim is cognizable under the newly recognized

constitutional right exception, which permits the filing of an otherwise

untimely petition when “the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States ... 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)(iii). See Ball’s Brief at 8. Ball claims

the United States Supreme Court’s recent decision in Montgomery allows

him to seek relief under the United States Supreme Court decision in

Alleyne.4

       In Alleyne, the United States Supreme Court held that “any fact that,

by law, increases the penalty is an ‘element’ that must be submitted to the

jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155. In

____________________________________________


4
  Ball filed the present PCRA petition on March 25, 2016, within 60 days of
the Montgomery decision, which was handed down on January 25, 2016.
See 42 Pa.C.S. § 9545(b)(2).



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Pennsylvania, Alleyne triggered a string of cases finding certain mandatory

minimum sentencing schemes unconstitutional. See, e.g., Commonwealth

v. Hopkins, 117 A.3d 247 (Pa. 2015) (finding mandatory minimum for

Drug-Free     School    Zones    violation    unconstitutional);    see      also

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (applying

Alleyne and holding 42 Pa.C.S. §§ 9712 and 9713 unconstitutional), appeal

denied, 124 A.3d 309 (Pa. 2015).

      Ball claims he “falls within the purview of the section of the required

[m]andatory [m]inimum [s]entence as expressed under [42 Pa.C.S. § 9712]

…..” Ball’s Brief at 18.   See also id. at 20.     However, the Pennsylvania

Supreme Court, in Commonwealth v. Washington, 142 A.3d 810 (Pa.

2016) explicitly held that “Alleyne does not apply retroactively to cases

pending on collateral review[.]” Id. at 820.     Nevertheless, Ball argues the

United States Supreme Court’s recent decision in Montgomery somehow

causes Alleyne to be retroactive, explaining:

      The petitioner asserts that the Montgomery, supra, ruling is
      based on retroactivity being applicable to substantive rules of
      constitutional law. The Montgomery ruling is the petitioner’s
      primary asserted claim in this instant matter. The United States
      Supreme Court, in its ruling of Montgomery, did not limit the
      stipulations that define a substantive rule to “solely” applying to
      that of the Miller v. Alabama, 132 S.Ct. 2455 (2012) case
      [discussed in Montgomery]. Thereby, “any” case in which its
      claim pertains to that of a “substantive rule of constitutional law”
      must be given retroactive effect. With that being definitively
      established, the claim raised and decided within Alleyne v.
      United States, … so happens to be, in fact, an issue that
      pertains to the definition of a “substantive rule” which can
      therefore be raised by what Montgomery has established.

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J-S27030-17



Ball’s Brief at 18. We disagree.

      In Montgomery, the Supreme Court held that its prior decision in

Miller v. Alabama, supra — which declared that mandatory life without

parole for juvenile homicide offenders violates the Eighth Amendment's

prohibition on cruel and unusual punishments — constituted a new

substantive rule that must be applied retroactively to cases on collateral

review. Ball’s reliance on Montgomery is misplaced because, as mentioned

above, subsequent to and mindful of the Montgomery decision, the

Pennsylvania Supreme Court in Washington held that Alleyne does not

apply retroactively to cases on collateral review. See Washington, supra,

142 A.3d at 818 (explaining, inter alia, “[T]he Alleyne rule neither alters the

range of conduct or the class of persons punished by the law. See

Montgomery, 136 S. Ct. at 729-30.”). To date, there is no United States

Supreme Court decision holding that Alleyne applies retroactively to

untimely PCRA petitions. Accordingly, no relief is warranted.

      Because Ball’s petition does not satisfy any of the time-for-filing

exceptions, we agree with the ruling of the PCRA court that dismissed the

petition as untimely filed.

      Order affirmed.




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J-S27030-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2017




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