J-S87010-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                 1   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

STEVEN DENNIS FREDERICK,

                          Appellant                   No. 1187 MDA 2016


                    Appeal from the PCRA Order July 7, 2016
                 in the Court of Common Pleas of Berks County
               Criminal Division at No.: CP- 06 -CR- 0000743 -1975

BEFORE:     LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED JANUARY 17, 2017

        Appellant, Steven Dennis Frederick, appeals, pro se, from the order of

July 7, 2016, dismissing, without       a   hearing, his second petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Because the petition is untimely without an applicable exception, we

affirm.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record.       On May 24, 1977, a

jury convicted Appellant of murder of the first degree, burglary, aggravated
assault, robbery, and theft by unlawful taking.     On June 5, 1980, the   trial

court sentenced Appellant to life in prison without the possibility of parole.


*   Retired Senior Judge assigned to the Superior Court.
J-S87010-16


On May 27, 1983, the Pennsylvania Supreme Court affirmed the                    judgment of

sentence in   a   per curiam order.' (See Commonwealth v. Frederick, 460

A.2d 752 (Pa. 1983)). Appellant did not file         a   petition for   a   writ of certiorari

with the United States Supreme Court.

      Appellant filed   a   counseled first PCRA petition in 1988. The trial court

denied the petition on March 29, 1989. This Court affirmed the denial of the

petition on July 23, 1990.        (See Commonwealth v. Frederick, 580 A.2d

1163 (Pa. Super. 1990) (unpublished memorandum)).                       Subsequently, the

Pennsylvania Supreme Court affirmed per curiam. (See Commonwealth v.

Frederick, 601 A.2d 807        (Pa. 1992)).

      On March 16, 2016, Appellant, acting pro se, filed the instant PCRA

petition seeking to vacate his sentence pursuant to Montgomery v.

Louisiana, 136 S.Ct. 718 (2016).         On June 21, 2016, the PCRA court issued

notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of

Criminal Procedure 907(1). Appellant filed       a       response on July 1, 2016. On

July 7, 2016, the PCRA court dismissed the petition as untimely.                         The

instant, timely appeal      followed.2




' Appellant appealed the judgment of sentence directly to the Pennsylvania
Supreme Court. See Appellate Court Jurisdiction Act of July 31, 1970, P.L.
673, No. 223, Art. II, § 202, repealed and reenacted in part, Act of
September 23, 1980, P.L. 686, No. 137, 42 Pa.C.S.A. § 722.

2The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). However, Appellant filed
(Footnote Continued Next Page)


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      On appeal, Appellant raises the following question            for our review:

      I. Did the [PCRA] court abuse its discretion in denying
      Appellant's subsequent PCRA invoking 42 Pa.C.S.[A.] §
      9545(b)(1)(iii) where Appellant's PCRA was filed within sixty []
      days in the wake of [Montgomery, supra] where the [United
      States Supreme Court] utilized the 1880 holding of Ex [P]arte
      Siebold, 100 U.S. 371 (1880) as the genesis of a newly
      recognized constitutional right made applicable to the [states]
      pursuant to the Supremacy Clause of the U.S. Const. art. VI, cl.
      2 where Appellant's judgment of sentence is void ab initio where
      the statute (18 Pa.C.S.[A.] § 1311) utilized as statutory
      authorization by the sentencing court was found unconstitutional
      in its entirety thus manifestly warranting discharge and /or
      resentencing?

(Appellant's Brief, at 4).

      Our standard of review for an order denying PCRA relief is well -settled:

            This Court's standard of review regarding a PCRA court's
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in   the certified record...   .




Commonwealth v. Carter,          21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).            However, "if   a PCRA   [p]etition   is       untimely,   a


trial court has no jurisdiction to entertain the petition." Commonwealth v.

Hutchins, 760 A.2d 50,       53 (Pa. Super. 2000) (citations omitted).

      Here, Appellant filed his PCRA petition on March 16, 2016. The PCRA

provides that "[a]ny petition under this subchapter, including                     a    second or
(Footnote Continued)

a pro se Rule 1925(b) statement on July 18, 2016. See id. On August 2,
2016, the PCRA court filed an opinion. See Pa.R.A.P. 1925(a).



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subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]"           42 Pa.C.S.A.   §     9545(b)(1).   Appellant's judgment of

sentence became final on July 26, 1983, after the sixty -day period to file              a


petition for     a   writ of certiorari with the United States Supreme Court expired.

See former U.S.Sup.Ct.R. 20.

         Because Appellant did not file his current petition until March 16,

2016, the petition is facially untimely.               See 42 Pa.C.S.A.    §   9545(b)(1).

Thus, he must plead and prove that he falls under one of the exceptions at

Section 9545(b) of the PCRA. See id.

         Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully 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.

Id. at    §   9545(b)(1)(i)- (iii).   Further,   a   petitioner who wishes to invoke any

of the above exceptions must file the petition "within [sixty] days of the date

the claim could           have   been presented."         Id. at   §   9545(b)(2).    The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant's

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burden to plead and prove that one of the above -enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).

      In the instant matter, Appellant appears to contend that his petition is

timely under Section 9545(b)(1)(iii), specifically that the United States

Supreme Court's decision in Montgomery, supra:

      is  not applicable to juvenile offender's (sic) only but to any and
      all   United States      [c]itizens serving an illegal and /or
      unconstitutionally impose (sic) judgment of sentence of
      imprisonment where the [trial] court never had the statutory
      authority (jurisdiction) to impose the punishment where the
      punishment was not, in fact and law, authorized by duly
      promulgated substantive law that would merit relief from the
      unconstitutionality imposed judgment of sentence.

(Appellant's Brief, at 7). We disagree.

      Here, Appellant does not argue that he was      a    juvenile at the time he

committed the offense and thus        is   eligible for relief under Miller v.

Alabama, 132 S.Ct. 2455 (2012). (See Appellant's Brief, at 10). Rather,
he   argues that Montgomery         requires   all   new    substantive rules   of

constitutional law be retroactive in cases regarding allegedly unconstitutional

sentences.3   (See id. at 7, 11).    However, Montgomery, supra, has no

bearing on Appellant's case.   In Montgomery, the United States Supreme



3 We note Appellant has met the sixty -day statutory filing requirements of
the PCRA. See 42 Pa.C.S.A. § 9545(b)(2). Montgomery was decided on
January 25, 2016 and revised on January 27, 2016. Appellant filed the
instant petition on March 16, 2016, within the sixty -day limit.


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Court held that its decision in Miller, supra applies retroactively to cases on

collateral review. See Montgomery, supra at 736. Miller held that it                is

unconstitutional for state courts to impose an automatic life sentence

without possibility of parole upon             a   homicide defendant for   a   murder

committed while the defendant was          a   juvenile. See Miller, supra at 2460.

However,    Miller   is   inapplicable to Appellant, who was an adult at the time

he committed murder.              (See PCRA Court Order and Notice of Intent to

Dismiss, 6/21/16, at 4).          Further, Appellant has not pointed to any law in

support of his contention that Montgomery applies to all cases involving

allegedly unconstitutional sentences.               Therefore, we reject Appellant's

contention that he        is   eligible for relief under Montgomery, and conclude

that the   PCRA   court properly denied his PCRA petition.4

      Thus, Appellant's PCRA petition is untimely with no statutory exception

to the PCRA time -bar applying.         See Hutchins, supra at 53. Accordingly,

we affirm the order of the PCRA court.

      Order affirmed.



4 Moreover, we note that the fact that Appellant challenges the legality of his
sentence does not allow him to evade the PCRA's timeliness requirements.
In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the Pennsylvania
Supreme Court rejected this contention. The Fahy Court stated, "[a]lthough
legality of sentence is always subject to review within the PCRA, claims must
still first satisfy the PCRA's time limits or one of the exceptions thereto."
Fahy, supra at 223 (citation omitted). Thus, Appellant cannot elude the
PCRA's timeliness requirements based on a claim of an illegal sentence. See
id.


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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 1/17/2017




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