J-S35044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    THOMAS P. RICHARD, SR.                     :
                                               :
                      Appellant                :   No. 327 WDA 2017

                   Appeal from the PCRA Order January 17, 2017
              In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0003607-1999


BEFORE:       LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JUNE 9, 2017

        Thomas P. Richard, Sr. (“Appellant”) appeals from the order entered in

the Court of Common Pleas of Westmoreland County dismissing his sixth

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The PCRA Court provides an apt procedural history of the case at bar

as follows:

        A jury in the Court of Common Pleas of Westmoreland County
        convicted [Appellant] on July 17, 2000, of rape and related
        offenses involving an incident with his daughter, [for] which he
        was sentenced by [the court] to an aggregate term of
        imprisonment of not less than twenty-five and a half nor more
        than fifty-one years. The twenty-five and a half year term was a
        mandatory minimum required at the time of sentencing.
        [Appellant’s] conviction and judgment of sentence were affirmed
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      by the Superior Court of Pennsylvania on direct appeal. See
      Commonweatlh v. Richard, 803 A.2d 796 (Pa. Super. 2002)
      (unpublished memorandum), appeal denied 806 A.2d 860 (Pa.
      2002).

      After five unsuccessful attempts to obtain post conviction
      collateral relief, on March 18, 2016, petitioner filed his sixth
      [PCRA] petition, pro se….

PCRA Court Opinion and Notice of Intent to Dismiss, filed 12/26/17/, at 1.

On January 17, 2017, the PCRA court entered an order denying Appellant’s

request for PCRA relief. This timely appeal followed.

      On appeal, Appellant presents the following questions for this Court’s

review:

      1.    Did the court below err by not finding that Montgomery
      v. Louisianna, 577 U.S. ____ (2016) and/or Welch v. U.S.,
      578 U.S. ____ (2016) fully controlled as to invoking the time bar
      exception at § 9545(b)(1)(iii), as the binding and mandating
      legal principle, and as the necessary adjunct to afford a fortiori
      to give full retroactive effect to Com[monwealth] v. Wolfe,
      106 A.3d 600 (Pa.Super. 2014) and Com[monwealth] v.
      Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc)?

      2.    Is the Appellant’s sentence [now] illegal, where the terms
      of such punishment are no longer authorized or enforceable by a
      valid statute; and would the failure to correct render an absurd
      and unjust result of indefinitely incarcerating individuals under
      [now] voided laws, where such drastic loss of Liberty [sic] and
      consequences thereof, constitute the quintessential [sic]
      miscarriage of justice?

Appellant’s brief at 4.

      Our standard of review of an order denying relief under the PCRA

requires us to determine whether the decision of the PCRA court is

supported   by   the      evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).                        “The

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PCRA court's findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

      Initially, we address whether Appellant's petition is properly before us.

Any PCRA petition, “including a second or subsequent petition, shall be filed

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

9545(b)(1).    This time requirement is mandatory and jurisdictional in

nature, and a court may not ignore it in order to reach the merits of the

petition.   Commonwealth v. Hernandez, 79 A.3d 649, 651–652 (Pa.

Super. 2013) (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.

2000)). “A judgment [of sentence] becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

      In the case sub judice, Appellant's judgment of sentence became final

on November 25, 2002, upon the expiration of the ninety day period to seek

review with the United States Supreme Court after the Pennsylvania

Supreme Court denied his petition for allowance of appeal on August 27,

2002. 42 Pa.C.S. § 9545(b)(3). Appellant filed the instant PCRA petition,

his sixth, on March 17, 2016, nearly fourteen years after his judgment of

sentence became final. Accordingly, his petition for PCRA relief is patently

untimely.




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        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. § 9545(b)(1)(i), (ii),

and (iii), is met.1 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         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 sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).


____________________________________________


1
    The exceptions to the timeliness requirement are:

        (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. § 9545(b)(1)(i), (ii), and (iii).




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       Here, Appellant essentially claims that his sentence was illegal in light

of the holdings in Alleyne v. U.S., ___U.S.___, 133 S.Ct. 2151, 2163

(2013),2 and Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718

(2016). After review, we discern no merit to Appellant’s claim.

       In Alleyne, the United States Supreme Court held that any facts that

increase a mandatory minimum sentence must be submitted to the jury and

found beyond a reasonable doubt.               Alleyne, 133 S.Ct. at 2155, 2163.

However, the Pennsylvania Supreme Court held that Alleyne does not apply

retroactively to collateral attacks on a petitioner's mandatory minimum

sentence.      Commonwealth v. Washington, 142 A.3d 810, 820 (Pa.

2016).3

       Moreover, Montgomery stated that Miller v. Alabama, 132 S.Ct.

2455 (2012), in which the United States Supreme Court held that it is

unconstitutional to impose a mandatory sentence of life imprisonment

without the possibility of parole on juvenile offenders, applies retroactively

to cases on collateral review. Appellant, however, was neither a juvenile at
____________________________________________


2
  This Court’s decision in Wolfe, which Appellant cites in his statement of
questions presented on appeal, relied on Alleyne and its holding that “facts
that increase mandatory minimum sentences must be submitted to the jury”
to invalidate the mandatory minimum sentence applied to each of the
defendant’s IDSI charges. Wolfe, 106 A.3d at 802.
3
  Moreover, to the extent Appellant predicates his retroactivity argument
upon Wolfe, we find Wolfe inapposite, as it involved a direct appeal from a
judgment of sentence that postdated the Alleyne decision.




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the time of his crime nor was he sentenced to a mandatory term of life

without the possibility of parole. Thus, we agree with the PCRA court that

Appellant filed a patently untimely sixth PCRA petition presenting no claim

overcoming the PCRA’s jurisdictional time bar.   Accordingly we affirm the

order denying Appellant's PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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