J-S24024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ROBERT PAYNE

                            Appellant                   No. 1132 WDA 2016


               Appeal from the PCRA Order entered July 13, 2016
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0007237-2004


BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                               FILED JUNE 14, 2017

        Appellant, Robert Payne, appeals pro se from the July 13, 2016 order

entered in the Court of Common Pleas of Allegheny County, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546.             Appellant argues the PCRA court erred in

denying his PCRA petition as untimely. We disagree. Accordingly, we affirm

the order.

        The underlying facts and procedural history are undisputed.      Briefly,

following a jury trial, on October 26, 2006, Appellant was sentenced to an

aggregate term of imprisonment of 21-50 years in connection with several


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*
    Former Justice specially assigned to the Superior Court.
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sexual offenses involving an 11-year-old girl.1 Appellant timely appealed to

this   Court,    but   the    appeal    was    discontinued   on   May   24,   2007.

Subsequently, Appellant filed his first timely PCRA petition, which the PCRA

court dismissed on July 31, 2009. On appeal, we affirmed the dismissal on

September 13, 2010. See Commonwealth v. Payne, No. 1499 WDA 2009

(Pa. Super. filed September 13, 2010). On August 19, 2015, Appellant filed

the instant PCRA petition, which the PCRA court dismissed on July 13, 2016.

This appeal followed.

       Appellant argues the PCRA court erroneously dismissed the instant

PCRA petition as untimely.2 In his view, the instant petition is timely under

Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that a jury must

find beyond a reasonable doubt any fact increasing a mandatory minimum

sentence), in light of Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

We disagree.




____________________________________________


1
  Appellant was convicted of rape of a child, 18 Pa.C.S.A. § 3121(c),
involuntary deviate sexual intercourse with a child, 18 Pa.C.S.A. § 3123(b),
aggravated indecent assault, 18 Pa.C.S.A. § 3125, statutory sexual assault,
18 Pa.C.S.A. § 3122.1, indecent assault, endangering the welfare of a child,
18 Pa.C.S.A. § 4304(a), and corruption of minors, 18 Pa. C.S.A. § 6301.
2
  Appellant raises additional claims of illegality of sentence and ineffective
assistance of counsel. Appellant’s Brief at 4. Because, as explained below,
we conclude the instant PCRA petition is untimely, we will not address the
merits of the petition.




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      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                      All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.       42 Pa.C.S.A. § 9545(b)(1).           “The PCRA’s time

restrictions are jurisdictional in nature.          Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”       Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).       As timeliness is separate and distinct from the

merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.     See Commonwealth v. Stokes, 959 A.2d

306, 310       (Pa.   2008)   (consideration   of   Brady   claim   separate   from

consideration of its timeliness).     The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the

legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“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”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999)).

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       As noted, Appellant argues the PCRA court erroneously dismissed the

instant PCRA petition as untimely. Appellant avers that the instant petition

is timely under Alleyne in light of Montgomery.                 The claim is without

merit.   It is well-established that Alleyne does not apply retroactively to

cases,    like    the   instant    one,   pending    on   collateral   review.      See

Commonwealth v. Washington, 142 A.3d 810, 819-20 (Pa. 2016).

Appellant’s judgment of sentence was final before the United States

Supreme Court handed down Alleyne; therefore, Alleyne does not apply to

his case. Because Alleyne does not apply to Appellant’s case, his sentence

is not illegal. Id. at 815 (“[I]f a new constitutional rule does not apply, it

cannot render an otherwise final sentence illegal.”).

       Similarly, Montgomery is of no help to Appellant’s timeliness

argument.        In Montgomery, the Unites States Supreme Court held that

Miller v. Alabama, 132 S.Ct. 2455 (2012)3 established a new substantive

rule that, under the United States Constitution, must be retroactive in cases

on state collateral review. Montgomery, 136 S.Ct. at 736. However, there

is nothing in Montgomery that could support Appellant’s claim that Alleyne

is   applicable    retroactively    to    matters   pending   on   collateral    review.

Additionally, Appellant does not argue he has a claim under Miller.
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3
  In Miller, the United States Supreme Court held that “mandatory life
without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and unusual’
punishments.” Miller, 132 S.Ct. at 2460.



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Accordingly, because neither Alleyne nor Montgomery provides any

support for Appellant’s timeliness argument, we must conclude that the

PCRA court correctly found the instant petition untimely.     Because the

instant petition is untimely, we cannot review the merits of Appellant’s

contentions. See Chester, supra (courts have no jurisdiction to review the

merits of an untimely PCRA petition); Fahy, 737 A.2d at 224 (same).

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2017




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