J-S76033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

HAROLD FRANKLIN FORD

                            Appellant                       No. 1337 EDA 2016


                   Appeal from the PCRA Order April 19, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003457-2002


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED OCTOBER 18, 2016

        Appellant appeals pro se from the order entered in the Court of

Common Pleas of Chester County dismissing his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The relevant facts and procedural history are as follows:         Following

Appellant’s arrest in connection with a robbery occurring on June 24, 2002, a

jury convicted Appellant of robbery and conspiracy, and on June 30, 2003,

he was sentenced to twenty-five years to fifty years in prison.           Appellant

filed a direct appeal to this Court, and on July 12, 2004, this Court affirmed

Appellant’s judgment of sentence.              On April 19, 2005, the Supreme Court


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*
    Former Justice specially assigned to the Superior Court.
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denied Appellant’s petition for allowance of appeal; Appellant did not petition

the United States Supreme Court for a writ of certiorari.

       Thereafter, Appellant filed multiple PCRA petitions and appeals, none

of which resulted in Appellant being granted relief.        On March 7, 2016,1

Appellant filed the instant pro se PCRA petition, and the PCRA court provided

Appellant with notice of its intent to dismiss the petition without an

evidentiary hearing. Appellant filed a pro se response, and by order entered

on April 19, 2016, the PCRA court dismissed Appellant’s petition. This timely

pro se appeal followed.

       Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).       “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”           Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).

       Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.         Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective
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1
  Although the petition was time-stamped on March 10, 2016, we deem the
petition to have been filed on March 7, 2016, when Appellant handed it to
prison officials.   See Commonwealth v. Patterson, 931 A.2d 710
(Pa.Super. 2007) (discussing the prisoner mailbox rule).



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January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). 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 the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth




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v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted).

      In the case sub judice, Appellant was sentenced on June 30, 2003, and

this Court affirmed his judgment of sentence on July 12, 2004.       Appellant

filed a petition for allowance of appeal, which our Supreme Court denied on

April 19, 2005.   Thereafter, Appellant did not file a petition for a writ of

certiorari with the United States Supreme Court. Therefore, Appellant’s

judgment of sentence became final ninety days later, on July 18, 2005,

when the time for seeking certiorari from the United States Supreme Court

expired.    See 42 Pa.C.S.A. § 9545(b)(3) (indicating when judgment of

sentence becomes final); U.S. Sup. Ct. R. 13(1) (stating “a petition for a writ

of certiorari to review a judgment in any case. . .is timely when it is filed

with the Clerk of this Court within 90 days after entry of the judgment[ ]”).

Thus, Appellant had until July 18, 2006, to file a timely PCRA petition;

however, Appellant filed the instant PCRA petition on March 7, 2016, and,

therefore, it is patently untimely under the PCRA. See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d

780 (2000) (holding a PCRA petition filed more than one year after judgment

of sentence becomes final is untimely and the PCRA court lacks jurisdiction

to address the petition unless the petitioner pleads and proves a statutory

exception to the PCRA time-bar).




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      This does not end our inquiry, however, as Appellant, citing to

Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), attempts

to invoke the “new constitutional right” exception of 42 Pa.C.S.A. §

9545(b)(1)(iii).   To invoke this exception, the petitioner must plead and

prove that “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.A. § 9545(b)(1)(iii).

Moreover, a petitioner asserting a timeliness exception must file a petition

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

Pa.C.S.A. § 9545(b)(2).

      We conclude Appellant met the initial 60-day threshold.      “When the

exception asserted is Section 9545(b)(1)(iii), the 60–day rule runs from the

date of the germane decision.” Commonwealth v. Secreti, 134 A.3d 77,

80 (Pa.Super. 2016) (citation omitted).    The United States Supreme Court

filed its opinion in Montgomery on January 25, 2016, and Appellant filed

the instant PCRA petition on March 7, 2016. Accordingly, Appellant asserted

his timeliness exception within sixty days of the date the claim could have

been presented. 42 Pa.C.S.A. § 9545(b)(2).

      However, as the PCRA court correctly observed, the dictates of

Montgomery are inapplicable to Appellant.        In Montgomery, the High

Court held that its ruling in Miller v. Alabama, ___ U.S. ___, 132 S.Ct.


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2455 (2012), is to be given retroactive effect on collateral review. In Miller

v. Alabama, 132 S.Ct. at 2460, the United States Supreme Court held that

“mandatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment's probation against ‘cruel and

unusual[’] punishments.” In the case sub judice, Appellant, who was born in

May of 1950, was not a juvenile when he committed his crimes on June 24,

2002. Moreover, Appellant was sentenced to twenty-five years to fifty years

in prison, as opposed to life in prison without the possibility of parole.

Accordingly, Appellant has failed to plead and prove he is entitled to the new

constitutional right exception in light of Montgomery.

      Appellant additionally asserts that     he   is entitled to   the   “new

constitutional right” exception of 42 Pa.C.S.A. § 9545(b)(1)(iii), in light of

the United States Supreme Court’s opinion in Alleyne v. United States,

___ U.S. ___, 133 S.Ct. 2151 (2013). In Alleyne, the High Court held that

any fact, other than a prior conviction, that triggers application of a

mandatory minimum sentence must be proven beyond a reasonable doubt

before the factfinder.

      We conclude Appellant has not met the initial 60-day threshold.

Alleyne was decided on June 17, 2013, and Appellant filed the instant PCRA

petition on March 7, 2016.     Accordingly, Appellant has not asserted his

timeliness exception within sixty days of the date the claim could have been

presented.    42 Pa.C.S.A. § 9545(b)(2).    Further, to the extent Appellant


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believes the Supreme Court’s retroactivity analysis in Montgomery renders

Alleyne retroactive, we note that neither the United States Supreme Court

nor the Pennsylvania Supreme Court has held that Alleyne applies

retroactively to untimely PCRA petitions.        Indeed, our Supreme Court

recently held that Alleyne does not apply retroactively to cases pending on

collateral review. Commonwealth v. Washington, ___ Pa. ___, 142 A.3d

810 (2016).

       Accordingly, because Appellant has not established any of the

timeliness exceptions to the PCRA time-bar, the PCRA court lacked

jurisdiction to address his claims2 and we affirm the dismissal of Appellant's

instant untimely PCRA petition.

       Affirmed.




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2
  To the extent Appellant alleges generally that his sentence is illegal, we
note that our Supreme Court has held specifically that, “[a]lthough legality
of sentence is always subject to review within the PCRA, [legality of
sentencing] claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.” Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214,
223 (1999). In the case sub judice, Appellant has not met any of the
applicable exceptions to the PCRA, and therefore, we may not review his
challenges to the legality of his sentence.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




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