J-S55003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CAINE SHEPPARD PELZER,                     :
                                               :
                      Appellant                :   No. 1927 MDA 2016

                 Appeal from the PCRA Order November 2, 2016
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001989-2001


BEFORE:      DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                            FILED SEPTEMBER 07, 2017

        Caine Sheppard Pelzer appeals pro se from the Order entered on

November 2, 2016, in the Court of Common Pleas of Luzerne County,

denying his second Petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. We affirm.

        On April 15, 2002, the court sentenced Appellant pursuant to 42

Pa.C.S. § 97121 to an aggregate term of 22 to 44 years’ incarceration after a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   42 Pa.C.S. § 9712 pertains to sentences for offenses committed with
firearms and required a mandatory minimum sentence of at least 5 years’
imprisonment.     On August 20, 2014, our Supreme Court found the
imposition of mandatory minimum sentences provided in Section 9712
unconstitutional pursuant to Alleyne v. United States, 133 S.Ct. 2151
(2013). See Commonwealth v. Newman, 99 A.3d 86, 103 (Pa. Super.
2014) (en banc). See also Commonwealth v. Valentine, 101 A.3d 801
(Pa. Super. 2014).
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jury convicted him of 22 offenses relating to a home invasion that took place

on February 17, 2001.             This Court affirmed Appellant’s Judgment of

Sentence on May 7, 2003. Commonwealth v. Pelzer, No. 987 MDA 2002,

unpublished memorandum (Pa. Super. filed May 7, 2003). Appellant did not

petition   the   Pennsylvania      Supreme     Court   for   permission   to   appeal;

therefore, his Judgment of Sentence became final on June 6, 2003.2

        Appellant filed his first PCRA Petition on April 1, 2008, in which he

acknowledged that his Petition was untimely, but claimed that his counsel

had abandoned him. Ultimately, on June 28, 2013, the PCRA court denied

Appellant’s Petition. This Court affirmed the PCRA court’s order on July 14,

2014.      Commonwealth v. Pelzer, No. 1445 MDA 2013, unpublished

memorandum (Pa. Super. filed July 14, 2014).

        On February 20, 2016, Appellant filed the instant PCRA Petition in

which he challenged the legality of his sentence and claimed that he was

entitled to relief pursuant to Alleyne v. United States,3 and Montgomery

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2
   See 42 Pa.C.S. § 9545(b)(3) (mandating that a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking the review); Pa.R.A.P. 1113(a) (stating “a petition for
allowance of appeal shall be filed with the Prothonotary of the Supreme
Court within 30 days after the entry of the order of the Superior Court
sought to be reviewed”).
3
  Alleyne v. United States, 133 S.Ct. 2151 (2013) (holding that any fact
that increases a mandatory minimum sentence for a crime is an element of
that crime that must be submitted to the jury).




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v. Louisiana.4      PCRA Petition, 2/20/16, at 2, 9.     Following a hearing, on

November 2, 2016, the PCRA court dismissed the Petition as untimely. This

appeal followed.

       Appellant raises the following two issues in his Brief:

       1.     Whether Pennsylvania’s mandatory minimum sentencing
              act under 42 Pa.C.S. § 9712 is illegal, unconstitutionally
              invalid, void and of no force and effective with retroactive
              application to the Appellant at all turns where he was
              charged, tried and acquitted of numerous firearms
              violations but subsequently sentenced to a determinate
              sentence of 44 years of incarceration where he is actually
              innocent of his sentence enhancement in light of Alleyne
              v. United States, [ ] 133 S.Ct. 2151 (2013);
              Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa.
              2015); Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
              Thereby violating Appellant’s Sixth, Eighth and Fourteenth
              Amendments to the Pennsylvania and United States
              Constitutions going beyond the state[’]s power to impose
              such illegal penalty?

       2.     Whether Pennsylvania courts are enforcing an illegal
              penalty upon Appellant which automatically sentenced him
              to 44 years under 42 Pa.C.S. § 9712 by refusing to give
              Appellant retroactive effect of Alleyne     v.          United
              States, [ ] 133 S.Ct. 2151 (2013); Commonwealth
              v. Hopkins, 117 A.3d 247, 262 (Pa. 2015);
              Montgomery v. Louisiana, 136 S.Ct. 718 (2016). For
              substantive violations which he is actually innocent of that
              automatically altered the range of conduct and punishment
              for a class of people that is denied eligibility for probation,
              parole, work release or furlough once sentenced under §
              9712 in violation of the Sixth and Eighth Amendments to
              the Pennsylvania and United States Constitutions?
____________________________________________


4
  Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (concluding that the
Court’s holding in Miller v. Alabama, 132 S.Ct. 2455 (2012), prohibiting
mandatory life without parole sentences for juvenile offenders, applied
retroactively).



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Appellant’s Brief at 3.

        We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).

        Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA petition is a jurisdictional

requisite).

        Under the PCRA, any 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). As noted supra, Appellant’s Judgment of

Sentence became final on June 6, 2003.           The statutory exceptions to the

timeliness provisions allow for very limited circumstances to excuse the late

filing of a petition;5 a petitioner asserting an exception must file a Petition
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5
    (b) Time for filing petition.-

        (1) Any petition under this sub-chapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (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
(Footnote Continued Next Page)


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within 60 days of the date the claim could have been presented.         See 42

Pa.C.S. § 9545(b)(1)-(2).

      Because Appellant’s Judgment of Sentence became final on June 6,

2003, in order to be timely, Appellant must have submitted his PCRA Petition

by June 6, 2004. See 42 Pa.C.S. § 9545(b)(1). Appellant filed the instant

Petition on February 20, 2016, almost 13 years after his Judgment of

Sentence became final. The PCRA court properly concluded that Appellant’s

Petition is facially untimely.

      In his Brief to this Court, Appellant attempts to invoke the timeliness

exception under Section 9545(b)(1)(iii), alleging that his illegal sentence

claim is based on a newly-recognized Constitutional right, which is

retroactive in application. See Appellant’s Brief at 17, 19 (citing Alleyne,

supra, Montgomery, supra.).
                       _______________________
(Footnote Continued)

          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)-(iii).




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       As long as this court has jurisdiction over the matter, a legality of

sentence issue is reviewable and cannot be waived.                       Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).                        However, a legality of

sentencing issue must be raised in a timely filed PCRA Petition over which

we have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto.”); Commonwealth v. Miller,

102 A.3d 988, 995-96 (Pa. Super. 2014) (explaining that the decision in

Alleyne     does    not       invalidate    a   mandatory     minimum       sentence    when

presented in an untimely PCRA Petition).

       Appellant argues that, pursuant to the holding in Montgomery,

supra, Alleyne is retroactive and his PCRA Petition, filed within 60 days of

Montgomery,         is    timely.          Contrary   to    Appellant’s    claim,   however,

Montgomery only concerned the specific issue of the retroactive application

of Miller v. Alabama, supra,6 and not the retroactivity of Alleyne

generally. In fact, our Supreme Court has recently reiterated that Alleyne

does not apply retroactively on post-conviction collateral review.                       See

Commonwealth             v.    Washington,        142      A.3d   810,    820   (Pa.   2016).

       Accordingly, the PCRA court properly concluded that Appellant failed to

____________________________________________


6
  The Court in Miller held unconstitutional mandatory life without parole
sentences for juveniles .



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plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely. Thus,

we affirm the denial of PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




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