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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
BRUCE NORRIS,                            :          No. 285 EDA 2017
                                         :
                         Appellant       :


                Appeal from the PCRA Order, December 20, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0618592-1975


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 18, 2017

        Bruce Norris appeals, pro se, from the order of December 20, 2016,

dismissing his third PCRA1 petition as untimely. We affirm.

        In an opinion in support of its order dismissing appellant’s second

PCRA petition, the PCRA court set forth the history of this case as follows:

                    On June 30, 1975, [appellant] was arrested
              and charged with murder and related offenses. On
              October 31, 1975, following a jury trial, [appellant]
              was found guilty of second-degree murder, robbery,
              criminal conspiracy, possessing instruments of crime
              (PIC), and possessing prohibited weapons.         On
              January 19, 1976, the Honorable Alex Bonavitacola
              sentenced [appellant] to life imprisonment on the
              murder charge, 5 to 10 years[’] state incarceration
              on the robbery charge, and 5 to 10 years[’] state
              incarceration on the conspiracy charge.          The
              sentences on all charges were to run consecutively
              to one another. In addition, Judge Bonavitacola

1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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          further sentenced [appellant] to 2½ to 5 years[’]
          state incarceration on “the remaining count[,”] to
          run concurrently with the sentences on the other
          charges, although he did not specify which of
          [appellant]’s two remaining charges this sentence
          applied to.

                 On November 6, 1975, [appellant] filed a
          motion for a new trial. On February 17, 1976,
          [appellant] filed an appeal with the Supreme Court
          of Pennsylvania.        On December 1, 1977, the
          Supreme Court affirmed the judgment of sentence.
          On June 2, 1978, [appellant] filed a petition for relief
          pursuant to the Post-Conviction Hearing Act (PCHA),
          alleging ineffective assistance of counsel based upon
          trial counsel’s failure to obtain the statement of
          [appellant]’s co-defendant, to object to the
          Commonwealth Attorney’s improper argument, to
          cross-examine the co-defendant as to bias and
          credibility, to cross-examine a witness based upon
          their inability to identify [appellant] at a previous
          lineup, and to raise these issues on appeal. On
          September 23, 1981, the PCHA Court found
          [appellant]’s    petition   to   be   without    merit.
          [Appellant] appealed the dismissal of his petition to
          the Superior Court and, on October 1, 1982, the
          Superior Court affirmed the dismissal of [appellant]’s
          petition.

                 On April 18, 2012, [appellant] filed the instant
          petition for relief pursuant to the Post-Conviction
          Relief Act (PCRA), alleging ineffective assistance of
          counsel based upon trial counsel’s advising him to
          reject the Commonwealth’s plea offer of 25 years[’]
          state incarceration without first advising [appellant]
          of the advantages and disadvantages of accepting
          the offer.     On April 9, 2014, Barnaby Wittels,
          Esquire, was appointed as PCRA counsel.             On
          February 25, 2015, Mr. Wittels filed a [Finley][2]
          letter stating that the issues raised in [appellant]’s
          petition were untimely, waived, and without merit.

2
  Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc);
see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).


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           On June 12, 2015, this Court[Footnote 1] sent
           [appellant] a notice pursuant to Rule 907, indicating
           that his petition would be dismissed based upon
           Counsel’s    [Finley]     letter  and    untimeliness.
           [Appellant] did not file a response to the 907 notice.
           On July 15, 2015, after independent review of
           [appellant]’s pro se petition and Counsel’s [Finley]
           letter, this Court dismissed [appellant]’s petition
           without a hearing based upon Counsel’s [Finley]
           letter and untimeliness.       On August 13, 2015,
           [appellant] appealed the dismissal of his petition to
           the Superior Court.

                 [Footnote 1] On March 13,            2015,
                 [appellant]’s    PCRA     petition    was
                 reassigned to this Court.

Commonwealth v. Norris, PCRA court opinion, 8/28/15 at 1-3.

     On March 17, 2016, this court affirmed. Commonwealth v. Norris,

2016 WL 1064472, 144 A.3d 201 (Pa.Super. filed March 17, 2016)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with the Pennsylvania Supreme Court.          On May 10, 2016,

appellant filed the instant petition, his third, followed by a supplemental

amended petition on August 24, 2016. On November 18, 2016, the PCRA

court issued 20-day notice pursuant to Pa.R.Crim.P. 907. Appellant filed a

response on December 2, 2016, and the PCRA court dismissed his petition

on December 20, 2016.      This timely appeal followed on January 5, 2017.

Appellant was not ordered to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b); however, on February 8, 2017, the

PCRA court filed an opinion.




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           The standard of review for an order denying
           post-conviction relief is limited to whether the record
           supports the PCRA court’s determination, and
           whether that decision 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. Furthermore, a petitioner is not entitled to a
           PCRA hearing as a matter of right; the PCRA court
           can decline to hold a hearing if there is no genuine
           issue concerning any material fact and the petitioner
           is not entitled to post-conviction collateral relief, and
           no purpose would be served by any further
           proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

           Pennsylvania law makes clear no court has
           jurisdiction to hear an untimely PCRA petition.
           Commonwealth v. Robinson, 575 Pa. 500, 508,
           837 A.2d 1157, 1161 (2003). The most recent
           amendments to the PCRA, effective January 16,
           1996, provide 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); Commonwealth v.
           Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
           Commonwealth v. Vega, 754 A.2d 714, 717
           (Pa.Super. 2000). 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
           the review.” 42 Pa.C.S.A. § 9545(b)(3).




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Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).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
           prove:

           (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.A. § 9545(b)(1)(i)-(iii). “As such, when a
           PCRA petition is not filed within one year of the
           expiration of direct review, or not eligible for one of
           the three limited exceptions, or entitled to one of the
           exceptions, but not filed within 60 days of the date
           that the claim could have been first brought, the trial

3
  “There exists a proviso to the 1995 amendments to the PCRA which
provides a grace period for petitioners whose judgments have become final
on or before the effective date of the amendments. However, the proviso is
not applicable to second or subsequent PCRA petitions.” Johnson, 945 A.2d
at 188 n.2, citing Commonwealth v. Thomas, 718 A.2d 326 (Pa.Super.
1998) (en banc).


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            court has no power to address the substantive merits
            of a petitioner’s PCRA claims.” Commonwealth v.
            Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
            (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080. “To invoke an exception, the petitioner must plead it and

satisfy the burden of proof.”   Commonwealth v. Geer, 936 A.2d 1075,

1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

      Instantly, the Supreme Court of Pennsylvania affirmed appellant’s

judgment of sentence on December 1, 1977.         Appellant filed the current

petition, his third, on May 10, 2016, nearly 40 years later.       Therefore,

appellant’s current PCRA petition is manifestly untimely on its face.

Appellant asserts that his sentence is illegal under Alleyne v. United

States,      U.S.    , 133 S.Ct. 2151 (2013), and its progeny (holding that

any fact that, by law, increases the penalty for a crime is required to be

treated as an element of the offense, submitted to a jury, rather than a

judge, and found beyond a reasonable doubt). However, “even claims that a

sentence was illegal, an issue deemed incapable of being waived, are not

beyond the jurisdictional time restrictions.”   Commonwealth v. Grafton,

928 A.2d 1112, 1114 (Pa.Super. 2007), citing Commonwealth v. Fahy,

737 A.2d 214 (Pa. 1999); Commonwealth v. Beck, 848 A.2d 987

(Pa.Super. 2004).   Therefore, appellant’s illegal sentencing claim does not

operate as an independent exception to the PCRA’s jurisdictional time-bar.




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      To the extent that appellant is arguing that the after-recognized

constitutional right exception, enumerated at 42 Pa.C.S.A. § 9545(b)(1)(iii)

applies, he is mistaken. Recently, our supreme court decided that Alleyne

does not apply retroactively to collateral attacks on mandatory minimum

sentences advanced in post-conviction relief proceedings. Commonwealth

v. Washington, 142 A.3d 810 (Pa. 2016); see also Commonwealth v.

Riggle, 119 A.3d 1058 (Pa.Super. 2015) (holding that Alleyne did not

apply retroactively in a PCRA setting, where Riggle’s judgment of sentence

became final 15 months before the Supreme Court decided Alleyne in June

of 2013). Furthermore, it is well settled that Alleyne does not invalidate a

mandatory minimum sentence when presented in an untimely PCRA petition.

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).

      The Pennsylvania Supreme Court in Washington decided that the

Alleyne    ruling   was   not   substantive   nor   was   it   a   groundbreaking,

“watershed” rule of criminal procedure that applies retroactively on collateral

review.    Washington, 142 A.3d at 818-819.         See Teague v. Lane, 489

U.S. 288 (1989) (plurality) (a new constitutional rule of criminal procedure

does not generally apply to convictions that were final when the new rule

was announced).       As such, appellant is not entitled to the benefit of

Alleyne.

      As appellant’s petition, his third, is patently untimely and appellant has

failed to plead and prove the applicability of any exception to the PCRA’s



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time-of-filing requirements, the PCRA court lacked jurisdiction to consider

the merits of appellant’s issues and did not err in dismissing appellant’s

petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2017




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