J-S07035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :          IN THE SUPERIOR COURT OF
                                             :                PENNSYLVANIA
            v.                               :
                                             :
MICHAEL FERNSLER,                            :
                                             :
                   Appellant                 :             No. 1298 MDA 2016

                  Appeal from the PCRA Order July 14, 2016
              in the Court of Common Pleas of Dauphin County,
              Criminal Division, No(s): CP-22-CR-0002173-2006

BEFORE: BOWES, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                               FILED APRIL 19, 2017

      Michael    Fernsler   (“Fernsler”),   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.

      In August 2007, Fernsler pled guilty to involuntary deviate sexual

intercourse (“IDSI”) and other sexual offenses, relating to his having forced

four-year-old twin girls to perform oral sex on him.1 In January 2008, the

trial court sentenced Fernsler to an aggregate prison term of 26-52 years.2




1
  We observe that, while he was out on bail and awaiting sentencing,
Fernsler kidnapped and sexually assaulted a fourteen year-old girl, which
resulted in additional convictions. See Commonwealth v. Fernsler, 2013
Pa. Super. Unpub. LEXIS 777 (Pa. Super. 2013) (unpublished
memorandum).
2
  The trial court imposed a sentence on the IDSI conviction of 20 to 40 years
in prison, the statutory maximum permissible.            See 18 Pa.C.S.A.
§ 3123(d)(1). Fernsler was not sentenced under any mandatory minimum
sentencing provisions.
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      This Court affirmed the judgment of sentence. See Commonwealth

v. Fernsler, 981 A.2d 918 (Pa. Super. 2009) (unpublished memorandum).

Fernsler thereafter filed a Petition for allowance of appeal, nunc pro tunc,

which the Supreme Court of Pennsylvania denied. See Commonwealth v.

Fernsler, 2012 Pa. LEXIS 644 (Pa. 2012).

      Fernsler filed his first PCRA Petition in May 2012, which the PCRA court

later dismissed as being untimely filed. This Court affirmed the dismissal,

after which the Supreme Court of Pennsylvania denied allowance of appeal.

See Commonwealth v. Fernsler, 87 A.3d 385 (Pa. Super. 2013)

(unpublished memorandum), appeal denied, 85 A.3d 482 (Pa. 2014).

      On February 24, 2016, and later, on March 16, 2016, Fernsler filed

identical pro se PCRA Petitions.3 Fernsler thereafter filed a Memorandum to

accompany his second PCRA Petition, as well as a request for appointed

counsel, which the PCRA court denied.       The PCRA court then issued a

Pennsylvania Rule of Criminal Procedure 907 Notice of Intent to Dismiss the

Petition without an evidentiary hearing, stating that the court lacked

jurisdiction to address the Petition because it was untimely filed.   Fernsler

filed a pro se Response to the Rule 907 Notice. On July 14, 2016, the PCRA




3
 As these Petitions are identical, the PCRA court collectively treated them as
Fernsler’s second PCRA Petition. We do the same.


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court dismissed Fernsler’s Petition, after which Fernsler filed a timely pro se

Notice of Appeal.4

      On appeal, Fernsler presents the following questions for our review:

      1. Whether the [PCRA] court erred in finding [Fernsler’s] PCRA
      [Petition] as untimely where the United States Supreme Court in
      Montgomery v. Louisiana[, 136 S. Ct. 718 (2016),] held that
      any cases out of [the Supreme] Court that were substantive in
      nature were retroactively applicable to all the states[,] and in
      doing so[,] caused Alleyne v. United States, [133 S. Ct. 2151
      (2013),] Teague v. Lane, [489 U.S. 288 (1989),] Danforth v.
      Minnesota, [552 U.S. 264 (2008),] and Commonwealth v.
      Newman[, 99 A.3d 86 (Pa. Super. 2014) (en banc),] to become
      retroactively applicable to [Fernsler?]

      2. Whether the [PCRA] court erred in finding [Fernsler’s] PCRA
      [Petition] as untimely where the United States Supreme Court in
      Montgomery [] held that any cases out of [the Supreme] Court
      that were substantive in nature were retroactively applicable to
      all the states[,] and [in] doing so[,] caused Lafler v. Cooper,
      [566 U.S. 156 (2012),] Missouri v. Frye, [566 U.S. 134
      (2012),] Ferri v. Ackerman, [444 U.S. 193 (1979),]
      Strickland v. Washington, [466 U.S. 668 (1984),] Franks v.
      Delaware, [438 U.S. 154 (1978),] and Illinois v. Gates[, 462
      U.S. 213 (1983),] dealing with ineffective assistance of
      counsel[,] to become retroactively applicable to [Fernsler?]

Brief for Appellant at vi (some capitalization omitted). As Fernsler’s issues

are related, we will address them simultaneously.

      When reviewing an order dismissing a PCRA petition, we examine

whether the determination of the PCRA court is supported by the record and

free of legal error.   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014). The merits of a PCRA petition cannot be addressed unless the

PCRA court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091,

4
  The PCRA court did not order Fernsler to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.

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1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely

filed. Id.

      Any PCRA petition must be filed within one year of the date the

judgment becomes final.       42 Pa.C.S.A. § 9545(b)(1).         Here, Fernsler

concedes that his instant PCRA is facially untimely, as it was filed over six

years after August 2009, when his judgment of sentence became final.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 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)(2); Albrecht, 994 A.2d at 1094.

      Here, Fernsler cites the United States Supreme Court’s recent decision

in Montgomery, supra,5 and invokes the newly-recognized constitutional

right exception at section 9545(b)(1)(iii). See Brief for Appellant at 1-3, 8.

In Montgomery, the 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 (2012) (holding that sentencing

schemes that mandate life in prison without parole for defendants who


5
 Fernsler filed his instant PCRA Petition within 60 days of the Montgomery
decision. See 42 Pa.C.S.A. § 9545(b)(2).

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committed their crimes while under the age of eighteen violate the Eighth

Amendment’s prohibition on “cruel and unusual punishments,” id. at 2460),

applies retroactively. Montgomery, 136 S. Ct. at 736.

     Here, Fernsler argues that Montgomery rendered retroactive the new

constitutional right announced in United States Supreme Court’s decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that, under the

Sixth Amendment’s right to a jury trial, facts “that increase mandatory

minimum sentences must be submitted to the jury” and found beyond a

reasonable doubt.” Id. at 2163).6

     Initially, we observe that Miller is inapposite, as Fernsler was not (1)

under the age of eighteen at the time of the crimes, or (2) sentenced to life

in prison without parole. Contrary to Fernsler’s claim, Montgomery, which

discussed only the Miller case, did not retroactively apply a constitutional

right applicable to Fernsler.   Moreover, Alleyne is inapposite because,

contrary to Fernsler’s assertion, he was not sentenced under any mandatory

minimum sentencing statute or provision that was rendered unconstitutional




6
  Alleyne rendered unconstitutional various Pennsylvania statutes that allow
a judge to increase a defendant’s sentence based on a preponderance of the
evidence standard. See, e.g., Commonwealth v. Barnes, 151 A.3d 121,
123-24 (Pa. 2016) (explaining Alleyne’s implications and collecting cases).

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by Alleyne.7    In any event, our Pennsylvania Supreme Court has recently

reiterated that Alleyne does not apply retroactively on post-conviction

collateral review. See Commonwealth v. Washington, 142 A.3d 810, 811

(Pa. 2016).

      In his related second issue, Fernsler contends that Montgomery

rendered retroactive the United States Supreme Court’s decisions concerning

ineffective assistance of counsel (see, e.g., Lafler, supra; Strickland,

supra), and Fernsler thus should be entitled to argue that his trial counsel

was ineffective.   Brief for Appellant at 8; see also id. at 9-13 (detailing

Fernsler’s ineffectiveness claims).

      “[I]t is well established that the fact that a petitioner’s claims are

couched in terms of ineffectiveness will not save an otherwise untimely

petition from the application of the time restrictions of the PCRA.”

Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (citation

omitted).     As stated above, Fernsler’s instant PCRA Petition is facially

untimely.     Moreover, we conclude that he has failed to meet the

requirements of the newly-recognized constitutional right exception, and




7
  Fernsler does not cite to any sentencing statute under which he was
purportedly sentenced. However, even if the trial court had imposed a
mandatory minimum sentence, Fernsler’s second PCRA Petition was filed
well over sixty days after June 17, 2013, the date that Alleyne was decided.
See 42 Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923
A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to [a newly]-
recognized constitutional right, this Court has held that the sixty-day period
begins to run upon the date of the underlying judicial decision.”).

                                  -6-
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Montgomery is unavailing. Therefore, Fernsler’s ineffectiveness claims do

not entitle him to relief. Id.

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

Petition as being untimely.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/2017




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