J-S13042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 HERMAN THOMAS WOODS, JR.,                 :
                                           :
                    Appellant              :        No. 1526 WDA 2017

              Appeal from the PCRA Order September 15, 2017
               in the Court of Common Pleas of Mercer County,
            Criminal Division at No(s): CP-43-MD-0000523-1980

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                              FILED JUNE 15, 2018

      Herman Thomas Woods, Jr. (“Woods”), pro se, appeals from the Order

denying his fifth Petition for relief filed pursuant to the Post Conviction Relief

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

      On April 23, 1981, following a jury trial, Woods was convicted of second-

degree murder. The trial court sentenced Woods to a mandatory term of life

in prison, pursuant to 18 Pa.C.S.A. § 1102(b). This Court affirmed Woods’s

judgment of sentence. See Commonwealth v. Woods, 466 A.2d 709 (Pa.

Super. 1983) (unpublished memorandum). The Pennsylvania Supreme Court

denied allowance of appeal. The United States Supreme Court subsequently

denied Woods’s Petition for writ of certiorari on May 14, 1984. See Woods

v. Pennsylvania, 466 U.S. 977 (1984).
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          On August 21, 2017, Woods filed the instant pro se PCRA Petition, his

fifth.1    The PCRA court denied Woods’s Petition on September 15, 2017.

Woods filed a timely Notice of Appeal. On October 17, 2017, the PCRA court

ordered Woods to file a Pa.R.A.P. 1925(b) Concise Statement of errors

complained of on appeal within 21 days of the entry of the Order on the

docket, and Woods timely complied.2

               Our standard of review of an order denying PCRA relief is
          whether the record supports the PCRA court’s determination, and
          whether the PCRA court’s determination is free of legal error. The
          PCRA court’s findings will not be disturbed unless there is no
          support for the findings in the certified record.
____________________________________________


1 Although Woods styled his instant Petition as a “Petition for Writ of Habeas
Corpus Relief Pursuant to Article 1, Section 14 of the Pennsylvania Constitution
and for Post-Conviction Relief Pursuant to the [PCRA,]” this Court has
“repeatedly held that any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.” Commonwealth v.
Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (citation and ellipses omitted);
see also 42 Pa.C.S.A. § 9542 (providing that the PCRA “shall be the sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies … including habeas corpus….”).

2 In its Rule 1925(a) Opinion, the PCRA court stated that Woods’s Concise
Statement was untimely filed on November 13, 2017. However, the concise
statement Order was docketed on October 18, 2017, and therefore, Woods
had until November 8, 2017, to file his Concise Statement. Although the PCRA
court correctly points out that the Concise Statement was docketed after that
date, a copy of the envelope used to mail his pro se Concise Statement is
contained in the certified record and is postmarked November 8, 2017.
Because Woods is pro se and incarcerated, the “prisoner mailbox rule” applies,
and therefore, we will regard Woods’s Concise Statement as timely filed on
November 8, 2017. See Pa.R.A.P. 121(a) (providing that “[a] pro se filing
submitted by a prisoner incarcerated in a correctional facility is deemed filed
as of the date it is delivered to the prison authorities for purposes of mailing
or placed in the institutional mailbox, as evidenced by a properly executed
prisoner cash slip or other reasonably verifiable evidence of the date that the
prisoner deposited the pro se filing with the prison authorities.”).

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Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013)

(citations omitted).

      Initially, under the PCRA, 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.A. § 9545(b)(1) (emphasis added). 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.”    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, Woods’s judgment of sentence became final in 1984, when the

United States Supreme Court denied his Petition for writ of certiorari. Thus,

his Petition is facially untimely.

      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)(3).      Any 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.           Additionally, “it is the

petitioner’s burden to plead in the petition and prove that one of the

exceptions applies.”    Commonwealth v. Crews, 863 A.2d 498, 501 (Pa.

2004) (citation and emphasis omitted).

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       Woods     points     to   the    exception   set   forth   at   42   Pa.C.S.A.

§ 9545(b)(1)(i), concerning interference by government officials, in an

attempt to overcome the untimeliness of his Petition. Brief for Appellant at 3,

4-5.    Woods also cites the Pennsylvania Supreme Court’s decision in

Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”),3 and argues

that his mandatory life sentence is illegal. Brief for Appellant at 3-6.4

       In order to satisfy the “governmental interference” exception to the

PCRA’s timeliness requirement, a petitioner must plead and prove that “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.” 42 Pa.C.S.A. § 9545(b)(1)(i); see also Commonwealth v.

Chester, 895 A.2d 520, 52 (Pa. 2006). Here, Woods simply states that he
____________________________________________


3 In Batts II, our Supreme Court considered the United States Supreme
Court’s decisions in Miller v. Alabama, 567 U.S. 460, 465 (2012) (holding
that sentencing schemes that mandate life without the possibility of parole for
defendants who committed their crimes while under the age of eighteen
violate the Eighth Amendment’s prohibition on “cruel and unusual
punishments”), and Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016)
(holding that the new substantive rule of constitutional law announced in
Miller applies retroactively), and expressed a “presumption against the
imposition of a sentence of life without parole for a defendant convicted of
first-degree murder committed as a juvenile.” Batts II, 163 A.3d at 459
(emphasis added). The Batts Court also addressed the procedure for
sentencing juvenile offenders convicted of first-degree murder in light of the
Miller and Montgomery decisions. See id. at 459-60.

4Woods’s brief does not include a separate statement of questions involved,
as required by Pa.R.A.P. 2111(a)(4) and 2116(a).



                                           -4-
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“obtained the Supreme Court’s recent interpretation of the relevant law[, i.e.,

Batts II,] for the first time,” Brief for Appellant at 5, but fails to explain how

he believes the government interfered with his ability to discover or present

any particular claim.      Further, because Woods was not convicted of first-

degree murder, and he was 18 years old at the time he committed his crime,

Batts II is not applicable to the instant case.5 Thus, Woods has failed to

satisfy the “government interference exception to the PCRA’s timeliness

requirement.6

       Based upon the foregoing, we affirm the PCRA court’s Order, which

denied Woods’s Petition on the basis that it was untimely filed, and Woods had

failed to establish an exception to the PCRA’s timeliness requirement.

       Order affirmed.



____________________________________________


5We also observe that Woods previously raised a claim under Miller and
Montgomery in his February 2016 Petition, which the PCRA court denied.
See PCRA Court Order, 2/22/16, at 1-2.

6 Moreover, to the extent that Woods challenges the legality of his sentence
based on the United States Supreme Court’s holding in Alleyne v. United
States, 570 U.S. 99, 103 (2013) (holding that “any fact that increases the
penalty for a crime is an ‘element’ that must be submitted to the jury” and
found beyond a reasonable doubt), we note that Alleyne is not applicable to
the instant case, as Woods received a mandatory sentence pursuant to 18
Pa.C.S.A. § 1102(b) (providing that “a person who has been convicted of
murder of the second degree … shall be sentenced to a term of life
imprisonment.”). Thus, the only “fact” that led to Woods’s life sentence was
his jury conviction of second-degree murder, and the trial court engaged in
no fact-finding at sentencing. Further, the rule established in Alleyne does
not apply retroactively where, as here, the judgment of sentence is final. See
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2018




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