J-S65039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

COURTNEY COX,

                            Appellant                 No. 375 WDA 2016


                 Appeal from the PCRA Order January 27, 2016
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0010907-2003


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                       FILED SEPTEMBER 27, 2016

        Appellant, Courtney Cox, appeals pro se from the January 27, 2016

order dismissing his third petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely.1 We affirm.

        The PCRA court summarized the relevant history of this case as

follows:

              [Appellant] was found guilty by a jury on April 26, 2004 of
        criminal attempt (homicide) (2 counts), 18 Pa.C.S.A. § 901,
        aggravated assault (serious bodily injury) (5 counts), 18
        Pa.C.S.A. § 2701(a)(1), aggravated assault (police officer) (6
        counts), 18 Pa.C.S.A. § 2702(a)(6), recklessly endangering
        another person (9 counts), 18 Pa.C.S.A. § 2705, and violations
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Although dated January 26, 2016, the PCRA court’s order was entered on
the docket in this case on January 27, 2016. We have amended the caption
accordingly.
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       of the uniform firearms act: firearms not to be carried without a
       license, 18 Pa.C.S.A. § 6106. In a stipulated non-jury trial, the
       court found [Appellant] guilty of [a] violation of the uniform
       firearms act: former felon not to possess a firearm, 18 Pa.C.S.A.
       § 6105.

              On May 27, 2004, [Appellant] was sentenced to serve
       consecutive sentences[,] with a total period of incarceration of
       not less than sixty-six (66) years nor more than one hundred []
       thirty-two (132) years.

             A direct appeal was filed to the Superior Court, [which]
       issued an order and memorandum opinion on May 30, 2006[,]
       affirming the judgment of sentence. A subsequent petition for
       allowance of appeal was denied on December 13, 2006.

              On February 27, 2007, [Appellant] filed his first timely
       petition under the [PCRA].         Counsel was appointed for
       [Appellant] and counsel filed an amended petition.            The
       Commonwealth filed an answer. After the issuance of a notice of
       intention to dismiss, [see Pa.R.Crim.P. 907(1),] the petition was
       dismissed without a hearing on November 9, 2007. [Appellant]
       appealed the dismissal to the Superior Court, [which] affirmed
       [the PCRA] court.

            [Appellant] filed a second petition under the [PCRA,] which
       was dismissed as time-barred.

             [Appellant] filed his third petition under the [PCRA] on
       December 11, 2015.        The [PCRA] court issued a notice of
       intention to dismiss and the third petition was dismissed as time-
       barred on January 2[7], 2016. This [timely2] appeal follows.

____________________________________________


2
  Appellant filed his notice of appeal on February 29, 2016. Although this
would appear to be in excess of the thirty-day appeal period, see Pa.R.A.P.
903(a), the notice of appeal is post-marked February 24, 2016. Thus,
pursuant to the prisoner mailbox rule, we deem it timely filed.           See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (holding that
appeal by pro se prisoner is deemed filed on date prisoner places it in prison
mailbox). The PCRA court did not order Appellant to file a concise statement
of errors complained of on appeal. See Pa.R.A.P. 1925(b). It entered its
opinion on March 23, 2016. See Pa.R.A.P. 1925(a).



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(PCRA Court Opinion, 3/23/16, at 1-2) (unnecessary capitalization omitted).

      Appellant raises two issues on appeal:

      I.     Does the new          substantive law announcing the
      unconstitutional nature      of the sentence imposed apply
      retroactively?

      II. Did the [PCRA] court [] err as a matter of law when it
      determined the PCRA petition was untimely?

(See Appellant’s Brief, at 4) (most capitalization omitted).

      We begin by addressing the timeliness of Appellant’s instant PCRA

petition.

      Crucial to the determination of any PCRA appeal is the timeliness
      of the underlying petition.      Thus, we must first determine
      whether the instant PCRA petition was timely filed.            The
      timeliness requirement for PCRA petitions is mandatory and
      jurisdictional in nature, and the court may not ignore it in order
      to reach the merits of the petition. The question of whether a
      petition is timely raises a question of law. Where the petitioner
      raises questions of law, our standard of review is de novo and
      our scope of review plenary.

            A PCRA petition is timely if it is “filed within one year of the
      date the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §
      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.A. § 9545(b)(3). . . .

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (case

citations and some quotation marks omitted).

      Here, Appellant’s judgment of sentence became final on March 13,

2007, ninety days after our Supreme Court denied allowance of appeal. See

U.S. Sup. Ct. R. 13. Appellant therefore had until March 13, 2008, to file a


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timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). He filed the present

petition, his third, on December 11, 2015. Thus, it was patently untimely.

         An untimely PCRA petition may be considered if one of the following

three exceptions applies:

               (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); see Brown, supra at 500. If an exception

applies, a petitioner must file the PCRA petition “within [sixty] days of the

date the claim could have been presented.”             42 Pa.C.S.A. § 9545(b)(2).

“[Our Supreme] Court has repeatedly stated it is the appellant’s burden to

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

Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008) (citation

omitted).

         Here, Appellant claims the applicability of the constitutional right

exception to the PCRA time bar.             (See Appellant’s Brief, at 10-14); 42

Pa.C.S.A. § 9545(b)(1)(iii).     Specifically, he alleges that the United States

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151



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(2013) (holding that any fact that, by law, increases penalty for crime must

be found beyond reasonable doubt by fact finder), rendered his sentence

illegal.   (See id.).      He also claims that the Supreme Court’s decision in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that Miller v.

Alabama,      132     S.Ct.    2455    (2012) should          be       applied   retroactively),

mandated retroactive application of Alleyne. (See id.). We disagree.

       “[A] new rule of constitutional law is applied retroactively to cases on

collateral   review     only   if   the   United    States        Supreme        Court   or   the

Pennsylvania Supreme Court specifically holds it to                          be retroactively

applicable to those cases.” Commonwealth v. Whitehawk, --- A.3d ---,

2016 WL 4473779, at *4 (Pa. Super. filed Aug. 24, 2016) (citation omitted).

Neither Court has held that Alleyne is applied retroactively.                      Rather, our

Supreme      Court    recently      issued   an     opinion       in    Commonwealth           v.

Washington, --- A.3d ---, 2016 WL 3909088 (Pa. filed July 19, 2016),

wherein it held “that Alleyne does not apply retroactively to cases pending

on collateral review.” Id. at *8.

       Here, Appellant’s argument that the United States Supreme Court, in

Montgomery, held that Alleyne applies retroactively is meritless.                              In

Montgomery,          the   Supreme        Court    held    that        “Miller   announced     a

substantive    rule     that   is   retroactive    in     cases    on      collateral    review.”

Montgomery, supra at 732. Its decision did not concern Alleyne. Thus,

Appellant has not met his burden of proving that Alleyne set forth a new




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constitutional law that is applicable retroactively to cases on collateral

review. See 42 Pa.C.S.A. § 9545(b)(1)(iii).

     Accordingly, we conclude that Appellant has not met his burden of

proving that his untimely PCRA petition fits within one of the three

exceptions to the PCRA’s time bar.        See Hawkins, supra at 1253.

Accordingly, we affirm the order of the PCRA court.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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