J-S66026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JAMES NAUGHTON

                            Appellant                   No. 607 WDA 2015


                 Appeal from the Order Entered March 10, 2015
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0007535-2007


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                     FILED: JANUARY 20, 2016

        Appellant, James Naughton, appeals pro se from the trial court’s March

10, 2015 order dismissing his third petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        On March 15, 2008, Appellant entered a negotiated guilty plea to two

counts each of involuntary deviate sexual intercourse, statutory sexual

assault, aggravated indecent assault, unlawful contact with a minor,

corruption of minors, and indecent assault.1 That same day, the trial court

imposed a sentence of five to ten years of incarceration. Appellant did not

file post-sentence motions or a direct appeal.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3123, 3122.1, 3125, 6318, 6301, and 3126 respectively.
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      Appellant filed a timely first PCRA petition on September 11, 2008 but

later withdrew the petition.   On January 5, 2012, Appellant filed a second

PCRA petition.   The PCRA court dismissed Appellant’s second petition on

April 19, 2012, and this Court dismissed the subsequent appeal for failure to

file a brief. On October 7, 2014, Appellant filed the instant petition, styled

as a petition for a writ of habeas corpus. The PCRA court treated Appellant’s

filing as a third, untimely PCRA petition and, after proper notice, dismissed it

without a hearing on March 10, 2015. This timely appeal followed.

      Before we address the merits of Appellant’s arguments, we must

consider   the   PCRA’s   jurisdictional   timeliness   provisions.   Appellant

acknowledges that his petition is facially untimely because he did not file it

within one year of the date on which his judgment of sentence became final.

See 42 Pa.C.S.A. § 9545(b). Appellant agues his petition qualifies for the

timeliness exception set forth in § 9545(b)(1)(iii) because the United States

Supreme Court announced a new constitutional right in Alleyne v. United

States, 133 S. Ct. 2151 (2013). The Alleyne Court held: “Any fact that,

by law, increases the minimum penalty for a crime is an ‘element’ that must

be submitted to the jury and found beyond a reasonable doubt.”           Id. at

2155. On that basis, Appellant argues the five-year mandatory minimum of




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his sentence2 is illegal. He further argues that the United States Supreme

Court’s Alleyne opinion entitles him to avail himself of § 9545(b)(1)(iii).

       We discern two fatal flaws in Appellant’s argument. First, Appellant’s

judgment of sentence became final well before June 17, 2013, the date the

United States Supreme Court decided Alleyne.               In Commonwealth v.

Newman, 99 A.3d 86, 90 (Pa. Super. 2014), we explained that Alleyne will

apply to cases pending on direct appeal as of June 17, 2013. This Court’s

opinion in Commonwealth v. Riggle, 119 A.2d 1058 (Pa. Super. 2015),

provided a detailed explanation of why Alleyne does not apply retroactively

to cases pending on collateral review.           Id. at 1066-68.   Appellant cannot

rely on Alleyne to overcome the PCRA’s jurisdictional time bar.

       Second, Appellant filed the instant petition more than one year after

Alleyne. The PCRA statute required Appellant to file his petition “within 60

days of the date the claim could have been presented.”                42 Pa.C.S.A.

§ 9545(b)(2). Appellant’s petition, filed sixteen months after United States

Supreme Court announced its decision in Alleyne, does not qualify.             The

PCRA court correctly determined that it lacked jurisdiction to entertain

Appellant’s petition.

       Appellant also argues habeas corpus relief is available to him.          We

disagree.    The PCRA provides:         “The action established in this subchapter

____________________________________________


2
    See 42 Pa.C.S.A. § 9718(a)(1).



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shall be the sole means of obtaining collateral relief and encompasses all

other common law and statutory remedies for the same purpose that exist

when this subchapter takes effect, including habeas corpus and coram

nobis.” 42 Pa.C.S.A. § 9542 (emphasis added). Thus, where a petitioner’s

claim is cognizable under the PCRA, the petitioner must proceed thereunder.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013).

Likewise, a court must treat such a petition as a PCRA petition regardless of

its title. Id.

       This Court has held that Alleyne claims implicate the legality of a

sentence and therefore are cognizable under the PCRA. Newman, supra.3

Likewise, in Riggle the petitioner’s Alleyne challenge to his mandatory five-

year minimum sentence for IDSI was cognizable under the PCRA. Pursuant

to § 9542, therefore, the PCRA court correctly treated Appellant’s habeas

corpus petition as one filed pursuant to the PCRA.

       Appellant argues, based on Chief Justice Castille’s concurring opinion

in Commonwealth v. Cunningham, 81 A.3d 1, 11-18 (Pa. 2013) (Castille,

C.J., concurring), that habeas corpus relief is available to him.         In

Cunningham, Chief Justice Castille addressed difficulties that may arise if

the United States Supreme Court’s opinion in Miller v. Alabama, 132 S. Ct.

____________________________________________


3
    This issue is currently pending before our Supreme Court.
Commonwealth v. Washington, ___ A.3d ___, 2015 WL 7763806 (Pa.
December 2, 2015).



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2455 (2012) is never held to apply retroactively.      In Miller, the United

States Supreme Court held that mandatory sentences of life imprisonment

without parole for juvenile offenders violates the Eighth Amendment’s

proscription of cruel and unusual punishment. Addressing Miller, which as

of now does not apply retroactively, Chief Justice Castille wrote: “[A] new

federal rule, if sufficiently disruptive of state law—such as by requiring the

state to treat identically situated defendants differently—may pose an issue

of Pennsylvania constitutional     law   independent of the    federal rule.”

Cunningham, 81 A.3d at 14 (Castille, C.J., concurring).      The problem, in

other words, is that juvenile offenders convicted of first-degree murder

whose sentences were final prior to Miller will remain in prison for life

without the possibility of parole while others convicted of the same offense

will receive lesser punishments.    Chief Justice Castille offered “tentative

thoughts” on how to remedy this inequity. Id. at 14. One such thought was

that “there is at least some basis for an argument that the claim is

cognizable via a petition under Pennsylvania’s habeas corpus statute[.]” Id.

at 18.      Chief Justice Castille wrote only for himself in offering these

thoughts.    At present, this Court remains bound by the case law set forth

above. We therefore affirm the order dismissing Appellant’s petition.

     Order affirmed.

     Judge Strassburger joins the memorandum.

     Judge Olson concurs in the result.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




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