J-S46041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JAMES HENRY GREEN                          :
                                               :
                      Appellant                :   No. 1848 MDA 2016

                  Appeal from the PCRA Order October 7, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002414-2003


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

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JULY 07, 2017


        Appellant James Henry Green appeals pro se the Order entered in the

Court of Common Pleas of Berks County on October 7, 2016, dismissing as

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

(PCRA). Because this petition is untimely without an applicable exception,

we affirm.

        Following a jury trial, on March 11, 2004, Appellant was convicted of

third-degree murder, firearms not to be carried without a license, possessing

an instrument of crime and recklessly endangering another person.1            On

April 1, 2004, Appellant was sentenced to an aggregate term of twenty-

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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c), 6106, 907 and 2705, respectively.
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seven (27) years to fifty-four (54) years in prison. Appellant filed neither a

timely post-sentence motion nor a timely notice of direct appeal.

        On April 22, 2004, Appellant filed an untimely Motion to Modify and

Reduce Sentence, pro se, and the trial court treated the filing as a timely,

first PCRA petition. New counsel was appointed and later filed a motion to

withdraw. The court granted counsel’s motion to withdraw, and following its

filing of a notice of its intent to dismiss Appellant’s Motion pursuant to

Pa.R.Crim.P. 907(1), the court dismissed the same on September 19, 2005.

This Court denied Appellant’s appeal on December 7, 2006, and the

Pennsylvania Supreme Court denied allowance of appeal on May 15, 2007.

Appellant filed numerous additional post-conviction petitions, each of which

was unsuccessful.

        Appellant filed the instant PCRA petition, his fifth, on February 16,

2016.     Therein, Appellant claimed he was serving an illegal sentence

because the trial court sentenced him “beyond the aggravated range.” On

June 17, 2016, the PCRA court issued its notice of its intent to dismiss the

petition as untimely. Appellant filed a response to the PCRA court’s notice

on July 18, 2016, wherein he asserted he was entitled to relief under the

United States Supreme Court’s decision in Alleyne v. United States,




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___U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)2 as that decision

announced a “new substantive rule of Constitutional law that applies

retroactively to Petitioner’s case” in light of the Court’s subsequent decision

in Montgomery v. Louisiana, ___ U.S. ____, 136 S.Ct. 718, 193 L.Ed.2d

599 (2016).3

       The PCRA court dismissed the instant petition on October 7, 2016.

Appellant filed his Notice of Appeal on November 3, 2016.4

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2
  In Alleyne, the United States Supreme Court held that any fact which
increases a mandatory minimum sentence is an “element” of the crime, and
not a “sentencing factor,” and, thus, must be submitted to the jury pursuant
to the Sixth Amendment to the United States Constitution.
3
  In Montgomery, the United States Supreme Court declared its prior
holding in Miller v. Alabama, ___ U.S. ____, 132 S.Ct. 2455, 183 L.Ed. 2d
407 (2012), wherein the Court had held that mandatory sentences of life
imprisonment without parole are unconstitutional for juvenile offenders,
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 at ___.
4
  In its Memorandum Opinion entered on January 20, 2017, the PCRA court
determined that because the PCRA petition had been denied on October 7,
2016, and Appellant did not file his notice of appeal until November 9, 2016,
more than thirty days later, the appeal was untimely filed and, therefore,
should be denied. Notwithstanding, Appellant dated his Notice of Appeal
November 3, 2016, and the certified docket entries list the appeal as having
been dated November 3, 2016, and filed on November 9, 2016. In addition,
the certified record contains a letter dated November 3, 2016, addressed to
the Clerk of Courts, along with a certificate of service bearing that same
date. These documents suggest Appellant’s Notice of Appeal was placed in
the hands of prison authorities on November 3, 2016; therefore, we deem
this appeal to be timely filed pursuant to the Prisoner Mailbox Rule. See
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.Super. 2011), appeal
denied, ___ Pa. ____, 46 A.3d 715 (2012)(pro se prisoner’s appeal deemed
(Footnote Continued Next Page)

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      In his brief, Appellant presents the following Statement of the

Question Involved:

            Whether the jury-trial guarantee in Alleyne v. United
      States, 133 S.Ct. 2151 (2013), applies retroactively to
      Appellant’s case and renders his sentence unconstitutional.

Brief for Appellant at 4.

      This Court recently reiterated our well-settled standard of review

following the denial of PCRA relief:

             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 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).
                       _______________________
(Footnote Continued)

filed on the date prisoner deposits appeal with prison authorities or places it
in prison mailbox under prisoner mailbox rule where appeal is received after
deadline for filing an appeal).



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       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).

Commonwealth v. Woods, ___ A.3d ____, 2017 WL 2536525, at *4

(Pa.Super. June 12, 2017).

       As stated previously, Appellant was sentenced on April 1, 2004, and he

did not file a direct appeal. Thus, Appellant’s sentence became final thirty

days thereafter, on May 3, 2004.5 See Pa.R.A.P. 903(a)(stating notice of


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5
  May 1, 2004, fell on a Saturday. Accordingly, Appellant had until Monday,
May 3, 2004, to file his notice of appeal. See 1 Pa.C.S.A. § 1908 (stating
that, for computations of time, whenever the last day of any such period
shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation.); Commonwealth v. Green, 862 A.2d 613,
618 (Pa.Super. 2004).
(Footnote Continued Next Page)

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J-S46041-17


appeal shall be filed within thirty days of the order from the appeal is

taken); 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final at

conclusion of direct review or at expiration of time for seeking that review).

Pursuant to 42 Pa.C.S.A. § 9545, a PCRA petition must be filed within one

year of the date the judgment becomes final, which would have been May 3,

2005.     Since Appellant did not file the instant petition until February 16,

2016, almost eleven years later, it is patently untimely and the burden fell

upon Appellant to plead and prove one of the enumerated exceptions to the

one-year time-bar. 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).

        Appellant attempts to invoke 42 Pa.C.S.A. § 9545(b)(1)(iii), the “newly

recognized constitutional right” exception to the PCRA time-bar. Appellant

contends that Alleyne, supra and Montgomery, supra, rendered his

sentence unconstitutional because “[t]he trial court imposed sentences

beyond the aggravated range based not on the jury’s verdict, but on the

judge’s own findings of fact that it was an intentional killing, caused by the

use of a deadly weapon upon a vital part of the body, and that it was

premeditated in that it took time—facts the jury found lacking in this case


                       _______________________
(Footnote Continued)




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and found Appellant not guilty of.”    Brief for Appellant at 10.    Appellant

further reasons that in light of Montgomery, the Alleyne decision applies

retroactively, qualifies as an exception to the PCRA time-bar, and dictates

that “any sentence in or beyond the aggravated range of the Sentencing

Guidelines based upon fact-finding beyond the scope of the jury verdict

violates the Sixth Amendment right to a jury trial.” Brief for Appellant at 11-

12.

      Appellant’s analysis ignores the Pennsylvania Supreme Court’s decision

in Commonwealth v. Washington, ___ Pa. ____, 142 A.3d 810 (2016),

wherein the Court addressed a situation in which the defendant raised an

Alleyne claim in a timely PCRA petition, but his judgment of sentence had

become final prior to the Alleyne decision. The Washington Court held that

“Alleyne does not apply retroactively to cases pending on collateral review,

and that [a]ppellant's judgment of sentence, therefore, is not illegal on

account of Alleyne.” Id. at ___, 142 A.3d at 815. In addition, Alleyne was

decided in 2013, and Appellant did not file the instant PCRA petition until

February 16, 2016.       Accordingly, Appellant failed to comply with 42

Pa.C.S.A. § 9545(b)(2) (stating “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented”).

      Moreover, Alleyne pertained to factors that a trial court must apply if

certain conditions are met and which increase the mandatory minimum

sentence and held these factors to be elements of the offense that must be
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submitted to the jury. As such, the parameters of Alleyne are limited to the

imposition of mandatory minimum sentences. However, the instant matter

does not involve such a situation, for while a trial court must consider the

ranges set forth in the Sentencing Guidelines, the Guidelines are not binding

upon it. Indeed, it is well-settled that the Sentencing Guidelines ultimately

are advisory only. Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super.

2002).6 Thus, Appellant is not entitled to relief under Alleyne.

       To the extent Appellant attempts to evoke the newly-recognized

constitutional right exception when averring his sentence also is illegal in

light of Montgomery, and Miller, supra, it is true that the United States

Supreme Court in Montgomery declared its prior holding in Miller

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 at ___.        In addition, Appellant filed the instant PCRA petition

within sixty days of the Supreme Court’s decision in Montgomery, and the

High Court held that the new rule of law announced in Miller applies




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6
  The trial court’s reasoning for its sentence is found on pages 27-31 of the
notes of testimony of the sentencing hearing at which time the court
specifically articulated the factors it had considered in formulating
Appellant’s sentence. See N.T. Sentencing Hearing, 4/1/04, at 27-31.



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retroactively to cases on collateral review.7 See Montgomery, ___ U.S. at

____, 136 S.Ct. at 732, 193 L.Ed.2d at ___. Thus, if the right announced in

Miller applies to Appellant's claim, the instant PCRA petition is timely. See

Woods, supra at * 5, (citing Commonwealth v. Abdul–Salaam, 571 Pa.

219, 227, 812 A.2d 497, 501-02 (2002) (stating ruling regarding retroactive

application of new constitutional right must be made prior to filing of PCRA

petition)); see also Commonwealth v. Porter, 613 Pa. 510, 526, 35 A.3d

4, 13-14 (2012) (provisions in 42 Pa.C.S.A. § 9545(b)(1), (2) relating to

PCRA's time-bar exceptions are necessarily claim-specific given sixty-day

filing restriction and fact that the statute addresses “exceptional” claims).

       However, since Appellant was over eighteen years of age when he

committed the murder and did not receive a mandatory sentence of life

imprisonment without the possibility of parole, Miller does not apply to his

case. Therefore, despite Appellant’s assertions to the contrary, the right

recognized by Miller and held to be retroactive in Montgomery does not

provide Appellant a basis for relief from the PCRA time-bar. See Miller, ___

U.S. at ____, 132 S. Ct. at 2469, ___ L.Ed.2d at ____ (holding “the Eighth

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7
  The United States Supreme Court decided Montgomery on January 25,
2016, and Appellant filed the current PCRA petition on February 16, 2016. In
Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this Court
held that the date upon which Montgomery had been decided is to be used
when calculating whether a petition is timely filed under the sixty-day rule of
42 Pa.C.S.A. § 9545(b)(2).




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Amendment forbids a sentencing scheme that mandates life in prison

without    possibility    of    parole    for   juvenile   offenders.”)   See   also

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013) (deciding

Miller is not an exception under Section 9545(b)(1)(iii) to those over the

age of eighteen at the time crimes were committed) see also Woods,

supra, at *6.

       In light of the foregoing, we find Appellant’s fifth PCRA petition is

untimely and that he has failed to plead and prove an exception to the PCRA

time-bar; therefore, the PCRA court lacked jurisdiction to review the merits

of Appellant's petition and properly dismissed it. 8

       Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2017




____________________________________________


8
  Although the PCRA court based its decision on an erroneous finding that
Appellant had not timely filed his notice of appeal, this Court is not bound by
the rationale of the lower court, and we may affirm it on any basis.
Commonwealth v. Williams, 73 A.3d 609, 617 (Pa.Super. 2013).




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