J-S93025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHALEEM ABDUL BURNS

                            Appellant                No. 1320 EDA 2016


               Appeal from the PCRA Order dated April 12, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003242-2006


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                        FILED FEBRUARY 23, 2017

        Appellant, Shaleem Abdul Burns, appeals pro se from the order

dismissing his third petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The relevant facts and procedural history of this case are as follows.

During an altercation in a Collegeville nightclub on October 30, 2005,

Appellant stabbed Garfield Potter (“Victim”) twice in the abdomen.      Police

soon found Appellant hiding in a car parked in the corner of the nightclub

parking lot. The parking lot bordered a local creek, where police discovered

a knife covered in blood. DNA testing confirmed that the blood belonged to

Victim.    Both Victim and his wife (who was also involved in the nightclub
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S93025-16


fight) positively identified Appellant in separate photo arrays.   A nightclub

bouncer similarly picked Appellant’s picture out of an array.

      Appellant’s case proceeded to a trial, where, on April 25, 2007, a jury

convicted him of aggravated assault, possession of a concealed weapon, and

simple assault. On April 17, 2008, the trial court sentenced him to 10-20

years’ imprisonment. This Court affirmed the judgment of sentence, and our

Supreme Court denied review on October 14, 2010. See Commonwealth

v. Burns, 991 A.2d 354 (Pa. Super.) (table), appeal denied, 8 A.3d 897

(Pa. 2010).

      On August 1, 2011, the court docketed Appellant’s timely first pro se

PCRA petition, which was dismissed by the PCRA court on February 27,

2012. We affirmed on November 14, 2012.

      The court docketed Appellant’s second pro se PCRA petition on June 3,

2014, in which he argued that he was entitled to relief pursuant to Alleyne

v. United States, 133 S. Ct. 2151 (2013), which held that a mandatory

minimum sentence is unconstitutional unless all facts that increase the

sentence are proven to a jury beyond a reasonable doubt. The second PCRA

petition was dismissed by the PCRA court on July 2, 2014; Appellant did not

appeal that order to this Court.




                                     -2-
J-S93025-16


        On February 26, 2016,1 Appellant filed the instant pro se PCRA petition

— his third — in which he contends that, pursuant to Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), Alleyne must now be applied

retroactively to all cases on post-conviction collateral review.2

        On March 15, 2016,3 the PCRA court issued a “Notice Pursuant to Pa R.

Crim. P. 907(1) of Intention to Dismiss Defendant’s Third PCRA Petition

(Docketed February 26, 2016) Without a Hearing,” stating that “there

exist[s] no genuine issue of any material fact, that defendant is not entitled

to PCRA relief, and that no purpose would be served by any further

proceedings.” Id. at 1.

        On April 11, 2016 the PCRA court issued, and on April 12, 2016 it filed,

an order dismissing the current PCRA petition as time-barred. Appellant now

appeals from this order.

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

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


1
  The docket states a filing date of March 2, 2016. The discrepancy is not
relevant to the issues on this appeal.
2
  Montgomery, 136 S. Ct. 718, held that Miller v. Alabama, 132 S. Ct.
2455 (2012), applies retroactively. Miller held “that mandatory life without
parole for those under the age of 18 at the time of their crimes violates the
Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” 132
S. Ct. at 2460.
3
    The date on the docket is March 17, 2016.



                                           -3-
J-S93025-16


The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks

omitted).

      In his pro se brief, Appellant raises the following issues, as stated:

      1.    Whether [trial] court committed fundamental error when it
      applied deadly weapon enhancement to Appellant’s conviction
      for possessing an instrument of crime?

      2.    Whether trial counsel and all Appellant attorneys on appeal
      [were] ineffective for not ascertaining and litigating [that the]
      deadly weapon enhancement did not apply to Appellant’s
      conviction for possessing an instrument of crime?

      3.    Whether any fact that increases the penalty for a crime
      beyond the prescribed statutory maximum must be submitted to
      a jury and proved a reasonable doubt?

      4.    Whether Appellant was subjected to unconstitutional
      statutes that the court had no statutory authorization to
      sentence him to; under Pa. Code 204 § 303.10?

      5.    Whether trial court erred in denying Appellant’s PCRA as
      being untimely while Montgomery v. Louisiana holds: "This
      Court’s precedents addressing the nature of substantive rules,
      their differences from procedural rules, and their history of
      retroactive effect regardless of when a conviction became final"?

      6.    Whether Appellant has retroactive right to new
      constitutional law that declares the law he was affected by is no
      longer constitutional?

      7.    Whether an unconstitutional sentence can be waived?

Appellant’s Brief at 4.   However, we do not reach these issues, because

Appellant’s PCRA petition was filed beyond the time limits set forth in the

PCRA. Thus, the PCRA court lacked jurisdiction to consider the petition.

                                      -4-
J-S93025-16


        The time limits in the PCRA are jurisdictional.   Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).                A PCRA petition,

including a second or subsequent petition, must be filed within one year of

the date the underlying judgment of sentence becomes final, unless the

petition alleges and the petitioner proves one of the three exceptions to the

time limitations for filing the petition set forth in Section 9545(b) of the

statute. See 42 Pa.C.S. § 9545(b)(1).4 A judgment is deemed 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 review.” Id. § 9545(b)(3).

        Here, Appellant’s judgment of sentence became final on January 12,

2011, upon the expiration of the time for seeking an appeal to the United
____________________________________________


4
    The three 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).



                                           -5-
J-S93025-16


States Supreme Court, after the Supreme Court of Pennsylvania denied

Appellant’s petition for allowance of appeal.    See id. § 9545(b)(3); U.S.

Sup. Ct. R. 13 (“A petition for a writ of certiorari seeking review of a

judgment of a lower state court that is subject to discretionary review by the

state court of last resort is timely when it is filed with the Clerk within 90

days after entry of the order denying discretionary review”).            Thus,

generally, Appellant would have had to file a PCRA petition by January 12,

2012. This petition, filed on February 26, 2016, more than five years after

Appellant’s judgment of sentence became final, was therefore patently

untimely unless Appellant pleaded and proved one of the three statutory

exceptions to the PCRA’s jurisdictional time-bar within “60 days of the date

the claim could have been presented.” Hernandez, 79 A.3d at 651-52; see

42 Pa.C.S. § 9545(b)(2).

      Appellant attempts to avoid the time-bar by asserting the exception

under Section 9545(b)(1)(iii) for a “new constitutional right” that has been

held to apply retroactively.   Appellant claims that the “new constitutional

right” is the right recognized by the Supreme Court in its 2013 decision in

Alleyne, which, he says, now must be applied retroactively as a result of

the Supreme Court’s decision in Montgomery. Appellant argues: “the trial

court erred in denying [A]ppellant’s PCRA petition as being untimely while

Montgomery v. Louisiana, holds: ‘This Court’s precedents addressing the

nature of substantive rules, their differences from procedural rules, and their


                                     -6-
J-S93025-16


history of retroactive [application establish that the Constitution requires

substantive    rules   to    have     retroactive]    effect   regardless      of   when      a

[conviction] became final.’” Appellant’s Brief at 21, quoting Montgomery,

136 S.Ct. at 729 (interpolation added to correct omission from quotation in

brief).

       Appellant made a claim under Alleyne in his second PCRA petition,

and it was unsuccessful. The PCRA bars relitigation of such claims in serial

petitions.    42 Pa. C.S. §§ 9543(a)(3), 9544(a)(3).             Appellant’s argument

that      Montgomery        permits    him    to     resurrect   that     claim     because

Montgomery now makes claims under Alleyne retroactive is meritless.

The Montgomery decision did not deal with Alleyne. In Commonwealth

v. Washington, 142 A.3d 810, 820 (Pa. 2016), our Supreme Court

considered     whether      Alleyne      applies     retroactively   in     light     of    the

Montgomery        decision     and     concluded:        “Alleyne       does    not        apply

retroactively to cases pending on collateral review.” We are bound by the

decision in Washington.

       Having discerned no abuse of discretion or error of law, we affirm the

order below.

       Order affirmed.




                                           -7-
J-S93025-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2017




                          -8-
