J-S94031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MEDFORD EUGENE YORK JR.

                           Appellant                  No. 1342 MDA 2016


                   Appeal from the PCRA Order July 13, 2016
      in the Court of Common Pleas of Lancaster County Criminal Division
                       at No(s): CP-36-CR-0001542-2000

BEFORE: LAZARUS, RANSOM, AND FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 27, 2017

        Appellant, Medford Eugene York, Jr., appeals pro se from the order

entered in the Lancaster County Court of Common Pleas dismissing his serial

Post Conviction Relief Act1 (“PCRA”) petition as untimely.          Appellant

challenges the legality of his sentence pursuant to the United States

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

(2013), which he claims was made retroactive by Montgomery v.

Louisiana, 136 S. Ct. 718 (2016). We affirm.

        The relevant facts and procedural history of this case are as follows.

On September 18, 2000, Appellant entered into a negotiated plea agreement




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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in which he pleaded guilty to aggravated assault2 and criminal conspiracy

(aggravated assault),3 and nolo contendere to criminal attempt―homicide,4

kidnapping,5 and criminal conspiracy (kidnapping).6       That same day, the

court imposed an aggregate term of twenty to forty years’ imprisonment.

Appellant did not file post-sentence motions or a direct appeal.

        Appellant filed his first PCRA petition pro se on August 6, 2002. The

PCRA court appointed counsel, who filed a Turner/Finley7 “no-merit” letter

and leave to withdraw. Thereafter, the PCRA court issued Pa.R.Crim.P. 907

notice and granted counsel leave to withdraw.       The PCRA court dismissed

Appellant’s petition without a hearing on November 14, 2002, and this Court

dismissed Appellant’s petition for failure to file a brief.          Appellant

subsequently litigated several unsuccessful PCRA petitions between 2007

and 2010.

        On February 19, 2016, Appellant filed the current PCRA petition pro se.

The PCRA court appointed counsel, who filed a Turner/Finley “no-merit”

2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 903(a)(1).
4
    18 Pa.C.S. §§ 901(a), 2501(a).
5
    18 Pa.C.S. § 2901(a)(2).
6
    18 Pa.C.S. § 903(a)(1).
7
  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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letter and leave to withdraw. Appellant filed a pro se response to counsel’s

letter, and the PCRA court issued Rule 907 notice on June 23, 2016.

Appellant again responded pro se.        The PCRA court dismissed Appellant’s

petition as untimely and granted counsel leave to withdraw on July 14,

2016. Appellant timely filed a pro se notice of appeal on July 28, 2016. The

PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely

complied.

      Before addressing the merits of Appellant’s claim, we examine whether

we have jurisdiction.   See Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999). “Our standard of review of a PCRA court’s dismissal of a PCRA

petition is limited to examining whether the PCRA court’s determination is

supported   by   the    evidence   of    record   and   free   of   legal   error.”

Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en

banc) (citation omitted). A PCRA petition “must normally be filed within one

year of the date the judgment becomes final . . . unless one of the

exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60

days of the date the claim could have been presented.” Commonwealth v.

Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations and footnote

omitted).

      Instantly, Appellant’s judgment of sentence became final on October

18, 2000. See 42 Pa.C.S. § 9545(b)(3). Thus, his current petition, which



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was filed more than fifteen years later on February 19, 2016, is untimely on

its face.   Appellant asserts, however, that his petition is timely because it

was filed within sixty days of Montgomery, which he claims held that new

constitutional rights recognized by the U.S. Supreme Court are considered

retroactive, including the    decision in   Alleyne.     See   42   Pa.C.S. §

9545(b)(1)(iii).   Nevertheless, Montgomery affords Appellant no relief

because it limited its determination of retroactivity to the U.S. Supreme

Court’s decision in Miller v. Alabama.8     Montgomery, 136 S. Ct. at 723

(referencing Miller v. Alabama, 132 S. Ct. 2455 (2012)).         Furthermore,

Appellant is not currently serving any mandatory minimum sentences.9

Because Appellant fails to establish a “new constitutional right” applicable to

his sentence, we affirm the PCRA court’s dismissal of Appellant’s petition.

      Order affirmed.




8
 In Miller, the U.S. Supreme Court held that a mandatory sentence of life
without parole is unconstitutional for juvenile homicide offenders. Miller,
132 S. Ct. at 2457-58. Because Appellant was not sentenced to life without
parole, Miller, and thus Montgomery, are inapplicable.
9
  In Alleyne, the U.S. Supreme Court held that any fact that increases the
mandatory minimum sentence is considered an “element” of the offense and
must be submitted to the jury. Alleyne, 133 S. Ct. at 2153. In any event,
our Supreme Court’s recent decision in Commonwealth v. Washington
held that “Alleyne does not apply retroactively to cases pending on
collateral review[.]” Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/27/2017




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