J-S57033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
LAMONT TAYLOR,                            :
                                          :
                  Appellant               :           No. 3756 EDA 2016

                Appeal from the PCRA Order November 3, 2016
            in the Court of Common Pleas of Philadelphia County,
             Criminal Division, No(s): CP-51-CR-0908441-1998;
                           CP-51-CR-1206842-1997

BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED OCTOBER 18, 2017

      Lamont Taylor (“Taylor”), pro se, appeals from the Order dismissing

his second Petition for relief filed pursuant to the Post Conviction Relief Act

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

      The PCRA court set forth the relevant underlying facts as follows:

      On July 25, 1997, [Taylor] and an accomplice shot and killed
      Charles Sipes [(“Sipes”)] in a drug dispute. Upon discovering
      that a witness, Madeline Carter [(“Carter”)], had given a
      statement to the police, [Taylor] and his accomplice fatally shot
      and set her on fire on August 4, 1997. On March 30, 2001,
      following a joint jury trial presided over by the Honorable John J.
      Poserina, [Taylor] and his accomplice were tried and convicted of
      first[-]degree murder of Carter, third[-]degree murder of Sipes,
      arson, aggravated assault, conspiracy, and possessing an
      instrument of crime. On April 3, 2001, [Taylor] was sentenced
      to life imprisonment for the first[-]degree murder conviction. On
      April 4, 2001, an aggregate consecutive sentence of fourteen
      (14) to twenty-eight (28) years’ incarceration for the remaining
      convictions was imposed.          Following [Taylor’s] appeal, the
      Pennsylvania Superior Court affirmed the judgment of sentence
      on September 13, 2002, and the Pennsylvania Supreme Court
      denied allocatur on August 19, 2003. [See Commonwealth v.
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      Taylor, 813 A.2d 910 (Pa. Super. 2002) (unpublished
      memorandum), appeal denied, 830 A.2d 975 (Pa. 2003).]

      [Taylor] filed his first PCRA [P]etition, pro se, on February 4,
      2004. John Cotter, Esquire, was appointed as counsel, and
      subsequently filed an amended [P]etition on April 11, 2005. …
      On March 22, 2006, the PCRA petition was dismissed[.] The
      Pennsylvania Superior Court affirmed on May 21, 2007, followed
      by the Pennsylvania Supreme Court denying allocatur on January
      8, 2008. [See Commonwealth v. Taylor, 929 A.2d 248 (Pa.
      Super. 2007) (unpublished memorandum), appeal denied, 940
      A.2d 364 (Pa. 2008).] …

      On August 24, 2012, [Taylor] filed the instant PCRA [P]etition,
      followed by an amended [P]etition on July 25, 2016. Pursuant to
      Pa.R.Crim.P. 907, th[e PCRA] court sent a [N]otice of intent to
      dismiss the [P]etition as untimely without exception on
      September 26, 2016. [Taylor] filed an objection to the [Rule]
      907 [N]otice on October 13, 2016. Thereafter, th[e PCRA] court
      formally dismissed [Taylor’s] PCRA [P]etition on November 3,
      2016. On November 15, 2016, [Taylor] timely filed the instant
      [N]otice of appeal ….

PCRA Court Opinion, 2/7/17, at 1-2 (footnotes omitted).

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Under the PCRA, any petition “including a second or subsequent

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

final[.]”   42 Pa.C.S.A. § 9545(b)(1) (emphasis added).         A judgment of

sentence becomes final “at the conclusion of direct review, including



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discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature, and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Taylor’s Petition is facially untimely under the PCRA.    See 42

Pa.C.S.A. § 9545(b).      However, Pennsylvania courts may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). Any PCRA petition

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

the claim could have been presented.” Id. § 9545(b); Albrecht, 994 A.2d

at 1094.

      Taylor invokes the newly-recognized constitutional right exception

under section 9545(b)(1)(iii), arguing that his sentence is illegal based upon

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). See Brief for Appellant

at 8-10, 18, 20-21, 22-24, 27-37. The Montgomery Court held, inter alia,

that “when a new substantive rule of constitutional law controls the outcome

of a case, the Constitution requires state collateral review courts to give

retroactive effect to that rule.”   Montgomery, 136 S. Ct. at 729.      In so

ruling, the Montgomery Court concluded that the new substantive rule of

constitutional law announced in Miller v. Alabama, 132 S. Ct. 2455, 2460

(2012) (holding that sentencing schemes that mandate life in prison without



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parole for defendants who committed their crimes while under the age of

eighteen violate the Eighth Amendment’s prohibition on “cruel and unusual

punishments”), applies retroactively. Montgomery, 136 S. Ct. at 736.

        Montgomery and Miller are inapplicable to this case because Taylor

was twenty-one years old when he committed the crimes. See PCRA Court

Opinion, 2/7/17, at 4; see also Commonwealth v. Furgess, 149 A.3d 90,

94 (Pa. Super. 2016) (noting that “petitioners who were older than 18 at the

time they committed murder are not within the ambit of the Miller decision

and therefore may not rely on that decision to bring themselves within the

time-bar exception in Section 9545(b)(1)(iii).”).     Thus, we conclude that

Taylor’s Montgomery claim fails to meet the requirements of the newly-

recognized constitutional right exception.

        Taylor also invokes the newly-recognized constitutional right exception

based on Alleyne v. United States, 133 S. Ct. 2151 (2013). See Brief for

Appellant at 10-18, 20-22, 24-26. In Alleyne, the Supreme Court held that

any fact that increases the sentence for a given crime must be submitted to

the jury and found beyond a reasonable doubt.         Alleyne, 133 S. Ct. at

2155.     The Supreme Court reasoned that a Sixth Amendment violation

occurs where these sentence-determinative facts are not submitted to a

jury. Id. at 2156.

        However, the rule established in Alleyne does not apply retroactively

where, as here, the judgment of sentence is final. See Commonwealth v.



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Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does

not apply retroactively to cases pending on collateral review.”); see also

Miller, 102 A.3d at 995 (stating that while Alleyne claims go to the legality

of the sentence, a court cannot review a legality claim where it does not

have   jurisdiction).1   Thus,   Taylor’s   Alleyne   claim   fails   to   meet   the

requirements of the newly-recognized constitutional right exception.

       Accordingly, the PCRA court properly dismissed Taylor’s second PCRA

Petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/18/2017




1  Taylor argues that Montgomery rendered retroactive the new
constitutional right announced in Alleyne, making his sentence illegal. See
Brief for Appellant at 10, 18-20. Contrary to Taylor’s claim, Montgomery,
which discussed only the Miller holding, did not retroactively apply a
constitutional right applicable to Taylor.


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