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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
WINFRED MILNER,                            :
                         APPELLANT         :
                                           :
                                           :     No. 1062 WDA 2016

                   Appeal from the PCRA Order June 24, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005326-1982



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

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 05, 2017

        Appellant, Winfred Milner, appeals pro se from the Order entered in

the Allegheny County Court of Common Pleas dismissing his Petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as

untimely. After careful review, we affirm.

        On December 6, 1982, a jury convicted Appellant of one count each of

Rape, Involuntary Deviate Sexual Intercourse, Unlawful Restraint, Simple

Assault, and Criminal Conspiracy.1 On May 20, 1983, the court sentenced

Appellant to an aggregate term of 25 to 50 years’ incarceration. This Court

*
    Retired Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S. § 3121(a)(1), 18 Pa.C.S. § 3123(a)(1), 18 Pa.C.S. § 2902, 18
Pa.C.S. § 2701(a)(1), and 18 Pa.C.S. § 903(a)(1), respectively.
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affirmed Appellant’s Judgment of Sentence on April 4, 1985.             See

Commonwealth       v.   Milner,     No.   773   PGH    1983    (unpublished

memorandum). The Pennsylvania Supreme Court denied Appellant’s Petition

for Allowance of Appeal on October 21, 1985.      See Commonwealth v.

Milner, No. 252 WAL 1985 (filed October 21, 1985). Appellant did not seek

review by the U.S. Supreme Court.         His Judgment of Sentence, thus,

became final on January 20, 1986.

     Appellant filed a first Petition under the PCRA on March 24, 1997,

which the PCRA court denied on July 21, 1998. Appellant appealed from the

dismissal of his first PCRA Petition on August 18, 1998. This Court reversed

and remanded the matter for an evidentiary hearing on August 27, 1999.

See Commonwealth v. Milner, No. 1534 PGH 1998 (unpublished

memorandum) (Pa. Super. filed August 27. 1999). Following the evidentiary

hearing, the PCRA court permitted Appellant to file an Amended Petition,

which he did on January 10, 2005. On December 29, 2008, the PCRA court

dismissed Appellant’s Amended Petition. Appellant appealed, but this Court

quashed the appeal as untimely on March 7, 2013. See Commonwealth v.

Milner, No. 1062 WDA 2012 (Pa. filed March 7, 2013).

     On March 6, 2016, Appellant filed a “Motion to Vacate the Judgment of

Sentence, and/or in the Alternative to Set Aside His Mandatory Minimum-




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Maximum Sentence pursuant to Alleyne2 [] Nunc Pro Tunc.”            The PCRA

court treated Appellant’s Motion as a second Petition filed under the PCRA,

and on April 15, 2016, appointed counsel to represent Appellant.

        On May 31, 2016, counsel filed a Turner/Finley3 no-merit letter and

sought to withdraw as Appellant’s counsel.

        On June 6, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition, noting that it lacked

jurisdiction to consider Appellant’s underlying claim because the Petition was

not timely filed, and Appellant had failed to plead and prove a timeliness

exception.    The court also noted its intent to grant counsel’s Petition to

Withdraw as counsel. Appellant filed a pro se Response on June 20, 2016.

        On June 24, 2016, the PCRA court dismissed Appellant’s Petition

without a hearing.     Appellant filed a pro se Notice of Appeal on July 12,

2016.     Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        Appellant raises the following three issues on appeal:

           1. Was petitioner unconstitutionally denied by a state
           court, the retroactive relief and application of U.S.

2
  Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013), held that, other
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory minimum must be submitted to a jury
and proved beyond a reasonable doubt. Id. at 2160-61.
3
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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         Supreme Court decisions United States v. Alleyne,
         Greer, Johnson, Shavers, Booker; denied the
         application of Marbury v. Madison, Testa v. Katt, the
         Harper rule pursuant to Article VI Clause 2, “The
         Supremacy Clause,” nunc pro tunc?

         2. Whether the state court by its refusal to apply the
         decisions Alleyne-Apprendi, via the Supremacy Clause to
         the Appellant’s case nunc pro tunc, was tantamount to a
         state court committing a [sic] unconstitutional structural
         defect?

         3. Whether Appellant’s sentence is illegal?

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). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      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



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final[.]” 42 Pa.C.S. § 9545(b)(1). 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.”            42 Pa.C.S. §

9545(b)(3). The statutory exceptions to the timeliness provisions allow for

very limited circumstances to excuse the late filing of a petition; a petitioner

asserting an exception must file a petition within 60 days of the date the

claim could have been presented. See 42 Pa.C.S. § 9545(b)(1)-(2).

      Here, Appellant’s Judgment of Sentence, became final on January 20,

1986, upon expiration of the time to file a Petition for Writ of Certiorari with

the U.S. Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13.

In order to be timely, Appellant must have submitted his PCRA Petition by

January 20, 1987. See 42 Pa.C.S. § 9545(b)(3) Appellant filed the instant

PCRA on March 6, 2016, almost 20 years after his Judgment of Sentence

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

facially untimely. PCRA Ct. Op., 12/15/16, at 3-5.

      Appellant does not invoke or argue any timeliness exception for his

claims in his Brief to this Court.    In his Turner/Finley no-merit letter,

however, Appellant’s former counsel noted that Appellant invoked 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




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retroactive in application.     As also noted by counsel, however, this claim

fails.

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

sentencing 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. Riggle,

119 A.3d 1058, 1064-67 (Pa. Super. 2015); 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); Commonwealth v. Ruiz, 131 A.3d 54, 56 (Pa.

Super. 2015) (remanding for resentencing without mandatory minimum

where defendant was sentenced 12 days before Alleyne, his judgment of

sentence was not final on the date Alleyne was decided, and the defendant

filed a timely PCRA Petition over which this Court had jurisdiction).

         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).




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      Accordingly, the PCRA court properly concluded that Appellant failed to

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.       See

PCRA Ct. Op at 3-5. We, thus, affirm the denial of PCRA relief.4

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/5/2017




4
 We note also that there is no indication in the certified record that the trial
court sentenced Appellant pursuant to any statute requiring imposition of a
mandatory minimum sentence whose legality would be called into question
under Alleyne and its progeny.



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