J-S83001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTHONY FITZGERALD                       :
                                          :
                   Appellant              :    No. 1784 WDA 2016

              Appeal from the PCRA Order October 31, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0015801-2010


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                               FILED MAY 10, 2019

     Anthony Fitzgerald, pro se, appeals from the November 4, 2016, order

dismissing his second petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

     As summarized by the PCRA court,

     On May 4, 2011, a jury convicted [Fitzgerald] of one count of
     Murder of the Third Degree and [the trial court] convicted him of
     one count of Possession of Firearm Prohibited. On September 26,
     2011, [the trial court] sentenced [Fitzgerald] to an aggregate
     sentence of twenty to forty years of incarceration. After an
     unsuccessful direct Appeal, [Fitzgerald] filed his first PCRA petition
     on March 25, 2012. Appointed counsel filed a Turner/Finley letter
     on May 5, 2014 and [the PCRA court] dismissed the petition
     without a hearing on May 27, 2014. The decision of [the PCRA
     court] was affirmed by [this Court] on July 16, 2015.

     On March 2, 2016, [Fitzgerald] filed his second PCRA petition. On
     September 30, 2016, appointed counsel filed a Turner/Finley
     letter. [The PCRA court] dismissed as untimely the PCRA petition
     on October 31, 2016.
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PCRA Court Opinion, 5/2/17, at 1.         Fitzgerald’s timely appeal followed the

PCRA court’s dismissal of his petition.

      In Fitzgerald’s instant PCRA petition, he alleges that: 1) his sentence is

illegal in accordance with the holding of Alleyne v. United States, 570 U.S.

99 (2013); and 2) his sentence is illegal because of ineffective assistance of

trial, appellate, and PCRA counsel.

      Prior to reaching the merits of Fitzgerald’s claims, we must first consider

the timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d

988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
      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. The PCRA squarely places upon the petitioner the
      burden of proving an untimely petition fits within one of the three
      exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

      The trial court sentenced Fitzgerald on September 26, 2011.             We

affirmed his direct appeal on July 5, 2013, and the Pennsylvania Supreme

Court denied allocatur on November 6, 2013.           See PCRA Court Opinion,

5/2/17, at 3. As he did not file a corresponding petition with the United States

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Supreme Court, Fitzgerald’s judgment became final on February 4, 2014. See

U.S. Supreme Court Rule 13.1 (a petition for a writ of certiorari is deemed

timely when it is filed within 90 days after the denial of allocatur). Therefore,

Fitzgerald had until February 4, 2015, to file a timely PCRA petition.

        Fitzgerald filed the current PCRA petition on March 2, 2016, which makes

his petition facially untimely.       Thus, the PCRA court lacked jurisdiction to

review Fitzgerald’s petition unless he was able to successfully avail himself of

one of the PCRA’s statutory exceptions. See 42 Pa.C.S.A. § 9545(b)(1)(i)-

(iii).1 In addition, Fitzgerald must have presented his claimed exception within

60 days of the date the claim could have first been presented.              See 42




____________________________________________


1   The PCRA provides three exceptions to its time bar:

        (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).




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Pa.C.S.A. § 9545(b)(2).2 Moreover, an exception must be pled in the PCRA

petition and cannot be raised for the first time on appeal.                 See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007).

       Preliminarily, it is unclear which of the three PCRA exceptions Fitzgerald

is trying to invoke. The PCRA court believed Fitzgerald was trying to rely on

the “unknown facts” exception, see PCRA Court Opinion, 5/2/17, at 4,

whereas the Commonwealth attempted to demonstrate why Fitzgerald’s

“retroactivity” exception argument is erroneous. See Appellee’s Brief, at 13.

In any event, Fitzgerald has failed to surmount either hurdle.

       As to the former exception, Fitzgerald has cited to no “unknown facts”

in accordance with 42 Pa.C.S.A. § 9545(b)(1)(ii) that he, through the exercise

of due diligence, would not have had access to when he had one year to file a

timely PRCA petition. Assuming that Fitzgerald is contending that the United

States Supreme Court case Montgomery v. Louisiana, 136 S. Ct. 718

(2016), simply by its holding, created a fact relevant to his claims, such a

contention is legally incorrect. See Commonwealth v. Watts, 23 A.3d 980,




____________________________________________


2 On October 24, 2018, the General Assembly amended section 9545(b)(2),
extending the time for filing a petition from 60 days to one year from the date
the claim could have been presented. See 2018 Pa.Legis.Serv.Act 2018-146
(S.B. 915), effective December 24, 2018. The amendment applies only to
claims arising one year before the effective date of this section, December 24,
2017, or thereafter. Here, Fitzgerald’s claim arose no later than 2016, when
Montgomery was decided, and the previous version of the statute applies.

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987 (Pa. 2011) (“Subsequent decisional law does not amount to a new ‘fact’

under section 9545(b)(1)(ii) of the PCRA.”).

      Regarding the latter exception, Fitzgerald suggests that the court’s

application of the deadly weapons enhancement to his sentence is

unconstitutional in accordance with Alleyne v. United States, 570 U.S. 99

(2013). Fitzgerald submits that Montgomery v. Louisiana, 136 S. Ct. 718

(2016), had the effect of establishing that Alleyne contains a constitutional

right that must be applied retroactively to collateral appeals.

      First, the holding in Montgomery was limited to whether the holding of

Miller v. Alabama, 132 S. Ct. 2455 (2012), “is retroactive to juvenile

offenders whose convictions and sentences were final when Miller was

decided.” 136 S. Ct. at 725. Nowhere in Montgomery is a statement to the

effect that Alleyne is retroactive; in fact, there are no references to Alleyne

at all. Second, the Pennsylvania Supreme Court has unequivocally stated that

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

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016); see also

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (“Even

assuming that Alleyne did announce a new constitutional right, nether our

Supreme Court, nor the United States Supreme Court has held that Alleyne

is to be applied retroactively to cases in which the judgment of sentence had

become final.”).




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     We conclude Fitzgerald has failed to plead or establish that his facially

untimely petition qualified for an exception to the PCRA’s time-bar.     As a

result, we affirm the PCRA court’s order dismissing his petition.        See

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015) (holding

that absent a timely PCRA petition or the demonstrated eligibility for a PCRA

time-bar exception, “the PCRA court has no power to address the substantive

merits of the [Appellant]’s PCRA claims.”)

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2019




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