J-S64021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH DESHIELDS,                          :
                                               :
                       Appellant               :   No. 59 EDA 2018

                 Appeal from the PCRA Order December 8, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012494-2007


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 11, 2018

        Appellant, Joseph Deshields, appeals pro se from the order entered on

December 8, 2017, dismissing his second petition for relief under the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

        A jury found Appellant guilty of possession with the intent to deliver a

controlled substance (PWID)1 and, on March 13, 2009, the trial court

sentenced him to serve a term of seven-and-one-half to 15 years in prison.

We affirmed Appellant’s judgment of sentence on July 19, 2010 and the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on May 25, 2011. Commonwealth v. Deshields, 6 A.3d 565 (Pa.

Super. 2010) (unpublished memorandum) at 1-21, appeal denied, 21 A.3d

1190 (Pa. 2011).

____________________________________________


1   35 P.S. § 780-113(a)(30).
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      Appellant filed his first PCRA petition on December 8, 2011 and the PCRA

court appointed counsel to represent him in the proceedings. However, on

January 10, 2014, the PCRA court dismissed Appellant’s petition without

holding a hearing and, on September 4, 2014, this Court dismissed Appellant’s

timely appeal for failure to file a brief. Commonwealth v. Deshields, ___

A.3d ___, 375 WDA 2014 (Pa. Super. 2014), at 1.

      Appellant filed the current petition (his second) on February 6, 2015.

Within the petition, Appellant acknowledged that the current petition is facially

untimely. However, Appellant claimed that his petition falls under the “newly

recognized constitutional right” exception to the PCRA’s time-bar. Specifically,

Appellant   claimed,    the    trial   court   sentenced     him    under    the

now-unconstitutional mandatory minimum sentencing statute located at 18

Pa.C.S.A. § 7508(a)(3)(i).    Appellant claimed that, in Alleyne v. United

States, 570 U.S. 99 (2013), the United States Supreme Court effectively

rendered Section 7508 unconstitutional and that, in accordance with Alleyne,

he is now entitled to relief from his illegal sentence. See Appellant’s Second

PCRA Petition, 2/6/15, at “Memorandum of Law and Fact.” Further, Appellant

filed amendments to his petition, where he claimed that the United States

Supreme Court’s opinion in Montgomery v. Louisiana, ___ U.S. ___, 136

S.Ct. 718 (2016) rendered Alleyne’s holding retroactive to his case. See

Appellant’s First Amended Second PCRA Petition, 5/18/16, at 2.

      On November 3, 2017, the PCRA court issued Appellant notice, pursuant

to Pennsylvania Rule of Criminal Procedure 907, that it intended to dismiss

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Appellant’s untimely petition in 20 days, without holding a hearing.        PCRA

Court Order, 11/3/17, at 1; Pa.R.Crim.P. 907(1).        The PCRA court finally

dismissed the petition on December 8, 2017 and Appellant filed a timely notice

of appeal. We now affirm the dismissal of Appellant’s patently untimely, serial

PCRA petition.

      “As a general proposition, we review a denial of PCRA relief to determine

whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).

      Before this Court can address the substance of Appellant’s claim, we

must determine if this petition is timely.

        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final. A judgment of sentence becomes final at the
        conclusion of direct review . . . or at the expiration of time
        for seeking review.

                                      ...

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition, set
        forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
        A petition invoking one of these exceptions must be filed
        within [60] days of the date the claim could first have been
        presented. In order to be entitled to the exceptions to the
        PCRA’s one-year filing deadline, the petitioner must plead
        and prove specific facts that demonstrate his claim was raised
        within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some internal

citations omitted) (internal quotations omitted).




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      In the present case, the PCRA court found Appellant’s petition to be

untimely filed.   PCRA Court Order, 12/8/17, at 1.     We agree.   Appellant’s

judgment of sentence became final at the end of the day on August 23, 2011,

which was 90 days after the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal and Appellant’s time for filing a petition for

writ of certiorari to the United States Supreme Court expired.         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 . . . , or at the expiration of time for seeking the review”); see also

U.S. Sup. Ct. R. 13.1. The PCRA explicitly requires that a petition be filed

“within one year of the date the judgment becomes final.”        42 Pa.C.S.A.

§ 9545(b)(1). As such, Appellant had until August 23, 2012 to file a timely

PCRA petition. Since Appellant filed his current petition on February 6, 2015,

the current petition is patently untimely and the burden thus 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

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements of

the relied-upon exception).

      Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:


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

                                     ...

           (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.

                                     ...

        (2) Any petition invoking an exception provided in paragraph
        (1) shall be filed within 60 days of the date the claim could
        have been presented.

42 Pa.C.S.A. § 9545(b).

     As our Supreme Court explained:

        Subsection (iii) of Section 9545(b)(1) has two requirements.
        First, it provides that 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
        provided in this section. Second, it provides that the right
        “has been held” by “that court” to apply retroactively. Thus,
        a petitioner must prove that there is a “new” constitutional
        right and that the right “has been held” by that court to apply
        retroactively. The language “has been held” is in the past
        tense. These words mean that the action has already
        occurred, i.e., “that court” has already held the new
        constitutional right to be retroactive to cases on collateral
        review. By employing the past tense in writing this provision,
        the legislature clearly intended that the right was already
        recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), quoting

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (internal

corrections omitted). Moreover, since the plain statutory language of section


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9545 demands that the PCRA petition “allege” all elements of the statutory

exception, it is clear that – to properly invoke the “newly recognized

constitutional right” exception – the petitioner must plead each of the

above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

        Within Appellant’s second PCRA petition, Appellant claims that his

sentence is illegal because he was sentenced to a mandatory minimum term

of incarceration under 18 Pa.C.S.A. § 7508 and, in Alleyne, the United States

Supreme Court effectively rendered Section 7508 unconstitutional. Moreover,

Appellant claims that the United States Supreme Court’s opinion in

Montgomery v. Louisiana rendered Alleyne’s holding retroactive to his

case.

        Appellant’s claim fails because Montgomery did not concern Alleyne

at all. Rather, Montgomery concerned the retroactive application of Miller

v. Alabama, 567 U.S. 460 (2012) – and Miller held that the Eighth

Amendment prohibited mandatory life sentences without parole for juveniles

convicted of a homicide offense. See Montgomery, 136 S.Ct. at 725. In

this case, Appellant was not a juvenile when he was convicted of the

non-homicide offense of PWID, and Appellant did not receive a mandatory

sentence of life in prison without the possibility of parole.     Thus, neither

Montgomery nor Miller applies to the case at bar.

        Further, any claim under Alleyne immediately fails, as Appellant did not

raise his Alleyne claim “within 60 days of the date the claim could have been




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presented.”         42 Pa.C.S.A. § 9545(b)(2).2     Rather, the first time Appellant

raised his Alleyne claim was in his February 6, 2015 PCRA Petition – which

was one-and-a-half years after the United States Supreme Court decided

Alleyne.3 See Appellant’s Second PCRA Petition, 2/6/15, at “Memorandum

of    Law     and    Fact.”     Thus,   Appellant   failed   to   properly   plead    the

newly recognized constitutional right exception to the PCRA’s one-year

time-bar.      See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super.

2007)       (“[w]ith   regard   to   [the   newly-]recognized     constitutional     right

[exception], . . . the [60-]day period begins to run upon the date of the

underlying judicial decision”).

        Since Appellant did not attempt to plead any other exception to the

time-bar, we conclude that Appellant’s petition is time-barred and that our




____________________________________________


2 Moreover, neither the United States Supreme Court nor our Supreme Court
has held that Alleyne applies retroactively to cases on collateral review.
Indeed, in Commonwealth v. Washington, the Pennsylvania Supreme
Court expressly held that “Alleyne does not apply retroactively to cases
pending on collateral review.” Commonwealth v. Washington, 142 A.3d
810, 820 (Pa. 2016). As such, for this independent reason, Alleyne does not
satisfy the newly-recognized constitutional right exception set forth at
§ 9545(b)(1)(iii). Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014) (“This Court has recognized that a new rule of constitutional law is
applied retroactively to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically holds it to be retroactively
applicable to those cases”).

3   The United States Supreme Court decided Alleyne on June 17, 2013.




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“courts are without jurisdiction to offer [Appellant] any form of relief.”4

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

Therefore, we affirm the PCRA court’s order dismissing Appellant’s second

PCRA petition without a hearing.

     Order affirmed. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/18




____________________________________________


4 To the extent Appellant claims that his illegal sentencing claim is
non-waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[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.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (emphasis added).

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