J-S11032-17

                                   2017 PA Super 41


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROBERT HUDSON                              :
                                               :
                      Appellant                :   No. 1119 WDA 2016

                   Appeal from the PCRA Order June 27, 2016
                In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000734-1999



BEFORE:      OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                          FILED FEBRUARY 24, 2017

        Appellant Robert Hudson appeals from the order entered in the Court

of Common Pleas of Cambria County on June 27, 2016, dismissing as

untimely his first petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 We affirm.

        The PCRA court previously set forth the relevant facts and procedural

history herein as follows:


             On February 22, 2000, [Appellant] entered into a plea
        bargain whereby in exchange for pleading guilty to third-degree
        murder and conspiracy, and agreeing to testify against his co-
        conspirator Michelle Clark, the Commonwealth agreed to nol pros


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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       all remaining charges against him.[2] On April 18, 2001, Judge
       Thomas A. Swope, Jr. sentenced [Appellant] to a total of twenty-
       five (25) to fifty (50) years[’] incarceration. Though there is
       nothing in the record to indicate that the plea agreement
       between [Appellant] and the Commonwealth included a definitive
       agreement as to the term of sentence, transcripts from both the
       guilty plea and sentencing hearings indicate that there was an
       agreement between [Appellant] and the Commonwealth that
       “the minimum sentence will not exceed 30 years nor the
       maximum sentence exceed 60 years in prison.” N.T., 2/22/00;
       See also N.T. 4/18/01.        [Appellant] filed subsequent post-
       sentence motions for sentence modification which were
       ultimately denied.
              On December 17, 2015, [Appellant] filed a pro se Motion
       to Challenge the Legality of Sentence. The Court then appointed
       Attorney Tim Burns as counsel on January 28, 2016 and
       [Appellant] filed a motion for a Grazier[3] hearing. On March 8,
       2016 [Appellant] agreed to withdraw his motion for Grazier
       hearing and the [c]ourt continued the matter so that [Appellant]
       and Attorney Burns could file a PCRA Petition with the trial court.
       [Appellant] filed the PCRA Petition at issue on April 25, 2016 and
       the [c]ourt gave notice on May 26, 2016, pursuant to
       Pennsylvania Rule of Criminal Procedure 907, of the [c]ourt’s
       intention to dismiss [Appellant’s] PCRA Petition as untimely filed.
       [Appellant] filed objections to the Court’s intention to dismiss the
       Petition without a hearing on June 14, 2016 and the [c]ourt
       entered an Order denying [Appellant’s] PCRA Petition without a
       hearing on June 27, 2016.
              [Appellant] filed a timely Notice of Appeal and Concise
       Statement of Matters Complained of on Appeal (Concise
       Statement) pursuant to Pennsylvania Rule of Appellate
       Procedure § 1925(b).

Trial Court Opinion, filed 8/26/16 at 1-2

       In his brief, Appellant presents the following Statement of the

Questions Involved:
____________________________________________


2
  Appellant was fifteen years of age when he pled guilty to murdering his
paramour’s husband.
3
  Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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         I.    Whether the [t]rial [c]ourt erred in dismissing [ ]
         Appellant’s PCRA Petition as being untimely filed?

         II.    Whether the [t]rial [c]ourt erred in dismissing [ ]
         Appellant’s PCRA Petition without a hearing, because the
         Commonwealth failed to file an answer to [ ] Appellant’s PCRA
         Petition?

   Appellant’s Appeal Brief at 4.

         When reviewing the propriety of an order denying PCRA relief, this

Court is limited to a determination of whether the evidence of record

supports the PCRA court’s conclusions and whether its ruling is free of legal

error.     Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178,

185 (2016).      This Court will not disturb the PCRA court’s findings unless

there is no support for them in the certified record.      Commonwealth v.

Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).

         At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and

where a petitioner raises questions of law, our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d

118, 121 (Pa.Super. 2014).

         All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory

exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The

petitioner bears the burden to plead and prove an applicable statutory

exception.     If the petition is untimely and the petitioner has not pled and



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proven an exception, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.

2013).

     42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

     (b) Time for filing petition.--

     (1)     Any petition under this subchapter, including a second or
             subsequent petition, shall be filed within one year of the
             date the judgment of sentence becomes final, unless the
             petition alleges and the petitioner proves that:

           (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.A. § 9545(b)(1)(i)-(iii).   In addition, any petition attempting to

invoke one of these exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Moreover,

“[a] plea of guilty effectively waives all nonjurisdictional defects and

defenses.”   Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa.Super.

1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990).




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     Herein, this Court affirmed Appellant’s judgment of sentence on May

22, 2002, and Appellant did not file a petition for allowance of appeal with

the Pennsylvania Supreme Court.         Thus, Appellant’s judgment of sentence

became final thirty days thereafter on June 22, 2002. See 42 Pa.C.S.A. §

9545(b)(3) (“a judgment 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 at the expiration of time for seeking

the review”). A timely petition had to be filed by June 22, 2003; therefore,

the instant PCRA petition initially filed on December 17, 2015, as a pro se

Motion to Challenge the Legality of Sentence is patently untimely, and the

burden fell upon Appellant to plead and prove that one of the enumerated

exceptions to the one year time-bar applied to his case. See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super.

2008) (to invoke a statutory exception to the PCRA time-bar, a petitioner

must properly plead and prove all required elements of the exception).

     In this vein, in his counseled Amended PCRA Petition filed on April 25,

2016, Appellant purports to invoke 42 Pa.C.S.A. § 9545(b)(1)(iii), the

“newly recognized constitutional right” exception to the time-bar, and

contends Montgomery v. Louisiana, ___ U.S. ____, 136 S.Ct. 718, 193

L.Ed.2d 599 (2016) (filed January 25, 2016, as revised on January 27, 2016)

granted   the   trial   court   discretionary   power   to   resentence   him.   In

Montgomery, the United States Supreme Court declared its prior holding in


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Miller v. Alabama, ___ U.S. ____, 132 S.Ct. 2455, 183 L.Ed. 2d. 407

(2012) constitutes a substantive rule of constitutional law to which state

collateral review courts were required as a constitutional matter to give

retroactive effect. Montgomery v. Louisiana, ___ U.S. at ____, 136 S.Ct.

at 736, 193 L.Ed.2d ___.      In Miller, the Supreme Court had held that

“mandatory life without parole for those under the age of 18 at the time of

their crimes violated the Eighth Amendment’s prohibition on ‘cruel and

unusual punishments.’” Miller v. Alabama, ___ U.S. at ____, 132 S.Ct. at

2460, 183 L.Ed.2d at ____. However, while the Supreme Court’s holding in

Miller set forth a bright-line rule that mandatory sentences of life

imprisonment without the possibility of parole are unconstitutional for

defendants under the age of eighteen, Miller, 132 S.Ct. at 2469, it did not

prevent a trial court from imposing a sentence upon a juvenile that is less

than a life sentence, as was the case herein.

      Although he acknowledges he was not sentenced to a mandatory life

prison term, Appellant stresses he “was a young juvenile (15 years of age),

when he committed the homicide that led to his plea which in turn resulted

in a lengthy sentence of 25 to 50 years.” Appellant’s Brief at 14. He further

posits “a strong legal argument could be made that he was impressionable,

and was under the influence of an adult who encouraged him to commit the

crime.” He also claims that were he to receive a resentencing hearing, he

would present evidence that he has been rehabilitated and did not engage in


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any misconduct while incarcerated as a result of his taking advantage of

various classes and workshops. Id. at 15.

      Appellant’s assertions fail to satisfy the requirements necessary for

invoking the newly-recognized constitutional right exception, pursuant to

Section 9545(b)(1)(iii), as Miller itself precludes this Court from granting

him relief under the PCRA. As stated previously, the Miller holding pertains

only to juveniles who were under eighteen years of age when they were

sentenced to mandatory sentences of life imprisonment without parole for

committing the crime of murder.       To the contrary, Appellant received an

individualized sentence of twenty-five years to fifty years in prison, a term

which fell well within the thirty years to sixty years range upon which

Appellant and the Commonwealth agreed as part of his guilty plea. N.T.,

2/22/00, at 6; N.T., 8/18/01, at 113.

      The PCRA provides a means to obtain relief based on existing or

newly-recognized constitutional rights, see 42 Pa.C.S.A. § 9543(a)(2)(i); 42

Pa.C.S.A. § 9545(b)(1)(iii); however, Appellant essentially is seeking to have

this Court declare a new, substantive constitutional rule and apply it to him

retroactively. Therefore, his claim is not cognizable under the PCRA. See

Commonwealth v. Fears,          624     Pa.   446, 483,   86   A.3d   795,   817

(2014)(reiterating the “PCRA provides a mechanism for vindicating existing

constitutional rights, and it also provides a mechanism for implementing new




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constitutional rules of retroactive application, no matter when the new rule is

established.” (citation omitted) (emphasis in original).4

       Appellant next avers the PCRA court erred in dismissing his PCRA

petition because the Commonwealth did not file an answer thereto pursuant

to Pa.R.Crim.P. 907(1) and (2). These subsections provide:

       Except as provided in Rule 909 for death penalty cases,

       (1)    the judge shall promptly review the petition, any answer
              by the attorney for the Commonwealth, and other matters
              of record relating to the defendant's claim(s). If the judge
              is satisfied from this review that there are no genuine
              issues concerning any material fact and that the defendant
              is not entitled to post-conviction collateral relief, and no
              purpose would be served by any further proceedings, the
              judge shall give notice to the parties of the intention to
              dismiss the petition and shall state in the notice the
              reasons for the dismissal. The defendant may respond to
              the proposed dismissal within 20 days of the date of the
              notice. The judge thereafter shall order the petition
              dismissed, grant leave to file an amended petition, or
              direct that the proceedings continue.

       (2)    A petition for post-conviction collateral relief may be
              granted without a hearing when the petition and answer
              show that there is no genuine issue concerning any
              material fact and that the defendant is entitled to relief as
              a matter of law.

Pa. R. Crim. P. 907(1) and (2).

       Appellant reasons that in light of language in the statute pertaining to

the Commonwealth’s answer which the PCRA court allegedly “must”
____________________________________________


4
  In light of our holding, we need not consider whether Appellant’s PCRA
petition had been filed within the requisite sixty-day time period or the effect
of his guilty plea upon the issues he may pursue under the PCRA.



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consider, the PCRA court erred in dismissing his PCRA petition for the

Commonwealth’s failure to contest any issue of material fact or to challenge

whether Appellant is entitled to relief as a matter of law.     Brief for Appellant

at 16-17.     However, in doing so Appellant disregards the plain language of

the statute which does not mandate that a hearing be held prior to dismissal

when the Commonwealth has not filed an answer to a PCRA petition. While

Subsection (1) states the PCRA court shall consider an answer by the

Commonwealth, if such a filing exists, before it dismisses a PCRA petition,

Subsection (2) requires the Commonwealth’s answer to be filed only before

the court decides to grant the petition.

        In addition, Appellant’s arguments ignore the preceding statutory

provision, Pa.R.Crim.P. 906 entitled “Answer to Petition for Post-Conviction

Collateral Relief,” which states:

               (A) Except as provided in paragraph (E),[5] an answer to a
        petition for post-conviction collateral relief is not required unless
        ordered by the judge. Pa.R.Crim.P. 906(A). When the judge has
        not ordered an answer, the attorney for the Commonwealth may
        elect to answer, but the failure to file one shall not constitute an
        admission of the well- pleaded facts alleged in the petition.

Pa.R.Crim.P. 906.

        Moreover, this Court has held neither a showing of prejudice by the

Commonwealth nor a hearing is required before the PCRA court dismisses a

petition where the petitioner has not met the jurisdictional requirements of
____________________________________________


5
    This provision relates to answers in death penalty cases.



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the PCRA.     Commonwealth v. Burton, 936 A.2d 521, 527 (Pa.Super.

2007).     As stated previously, Appellant has not pled and proven an

exception to the PCRA time-bar; thus, the PCRA court did not have

jurisdiction over his PCRA petition and properly dismissed it without a

hearing.

     Order affirmed.

     Judge Ransom joins the opinion.

     Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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