J-S46020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

CARL THOMPSON,

                        Appellant                   No. 2556 EDA 2014


              Appeal from the PCRA Order of August 12, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0803561-1985


BEFORE: MUNDY, OLSON and MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 21, 2015

     Appellant, Carl Thompson, appeals pro se from an August 12, 2014

order that dismissed as untimely his fifth petition filed pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     On March 21, 1986, a jury found Appellant guilty of third-degree

murder, aggravated assault, criminal conspiracy, and possession of an

instrument of crime. Thereafter, on July 15, 1986, the trial court sentenced

Appellant to serve life in prison for the murder conviction and concurrent

prison terms for the remaining convictions. This Court affirmed Appellant’s

judgment of sentence on January 19, 1988 and our Supreme Court denied

allocator on September 19, 1988.

     Between October 1988 and October 2007, Appellant filed four

unsuccessful petitions for collateral review.     Appellant filed the instant
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petition, his fifth, on June 13, 2013. He subsequently filed a supplemental

petition on August 12, 2013.      On March 13, 2014, the PCRA court issued

notice of its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P.

907.    Appellant filed a response on March 24, 2014.          The PCRA court

dismissed Appellant’s petition as untimely on August 12, 2014.         Appellant

filed a timely notice of appeal on August 27, 2014 and the PCRA court

explained its dismissal order in an opinion issued on December 12, 2014.

       On appeal, Appellant challenges the PCRA court’s dismissal of his

petition as time-barred.      The following principles govern our review of

Appellant’s claims:

       This Court's standard of review regarding an order granting or
       denying a petition under the PCRA is whether the determination
       of the PCRA court is supported by the evidence of record and is
       free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
       1170 (Pa. 2007). The PCRA court's findings will not be disturbed
       unless there is no support for the findings in the certified record.
       Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
       2001). “However, this Court applies a de novo standard of
       review to the PCRA court's legal conclusions.” Commonwealth
       v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

       We must begin by addressing the timeliness of the Petition,
       because the PCRA time limitations implicate our jurisdiction and
       may not be altered or disregarded in order to address the merits
       of a petition. Commonwealth v. Bennett, 930 A.2d 1264,
       1267 (Pa. 2007) (stating PCRA time limitations implicate our
       jurisdiction and may not be altered or disregarded to address the
       merits of the petition); Commonwealth v. Johnson, 803 A.2d
       1291, 1294 (Pa. Super. 2002) (holding the Superior Court lacks
       jurisdiction to reach merits of an appeal from an untimely PCRA
       petition). Under the PCRA, any petition for post-conviction relief,
       including a second or subsequent one, must be filed within one
       year of the date the judgment of sentence becomes final, unless


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      one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)
      applies. That section states, in relevant part:

        (b) Time for filing petition.—

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

        (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. § 9545(b)(1)(i)-(iii). Any petition attempting to
      invoke one of these exceptions “shall be filed within 60 days of
      the date the claim could have been presented.” 42 Pa.C.S.
      § 9545(b)(2).

Commonwealth v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015).

      Here, it is undisputed that Appellant’s petition is untimely and that he

needed to plead and prove at least one of the timeliness exceptions set forth

in §§ 9545(b)(1)(i)-(iii).   Since Appellant argued that newly-recognized

constitutional rights excuse the untimely nature of his most recent petition,

we focus on whether Appellant can rely on § 9545(b)(1)(iii) to overcome the

PCRA's time restrictions.

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      Subsection (iii) of Section 9545[ (b)(1) ] has two requirements.
      First, it provides that 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 provided
      in this section. Second, it provides that the right “has been
      held” by “that court” to apply retroactively. Thus, a petitioner
      must prove that there is a “new” constitutional right and that the
      right “has been held” by that court to apply retroactively. The
      language “has been held” is in the past tense. These words
      mean that the action has already occurred, i.e., “that court” has
      already held the new constitutional right to be retroactive to
      cases on collateral review. By employing the past tense in
      writing this provision, the legislature clearly intended that the
      right was already recognized at the time the petition was filed.

Cristina, 114 A.3d at 421-422 (citations omitted).

      In his original petition, Appellant relied on Miller v. Alabama, 132

S.Ct. 2455 (U.S. 2012) to invoke the timeliness exception found in

§ 9545(b)(1)(iii). In Miller, the United States Supreme Court held that life

imprisonment without the possibility of parole is unconstitutional when

imposed upon juvenile homicide defendants.           For the following reasons,

Appellant   cannot       invoke   Miller   to   satisfy   the   requirements   of

§ 9545(b)(1)(iii). First, although the decision in Miller was filed on June 25,

2012, Appellant did not file the instant petition until June 13, 2013. Hence,

Appellant failed to comply with the 60-day filing requirement found in

§ 9545(b)(2).   Second, it is clear that neither the United States Supreme

Court, nor the Pennsylvania Supreme Court, has held that the rule in Miller

applies retroactively.     Commonwealth v. Cunningham, 81 A.3d 1 (Pa.

2013), cert. denied, 134 S.Ct. 2724 (U.S. 2014); Cristina, 114 A.3d at 423;

Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal denied,


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101 A.3d 103 (Pa. 2014).          Thus, we agree with the PCRA court that

Appellant cannot rely on Miller to establish the exception set forth in

§ 9545(b)(1)(iii).

      Appellant’s supplemental petition alleges that the United States

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

(U.S. 2013) announced a newly-recognized constitutional right that allows

him to invoke the timeliness exception found at § 9545(b)(1)(iii). Alleyne

held that “any fact that increases the mandatory minimum is an element [of

the crime] that must be submitted to the jury.” Alleyne, 133 S.Ct. at 2155.

However, since neither the United States Supreme Court nor our Supreme

Court has held that Alleyne applies retroactively to cases on collateral

review, Alleyne does not satisfy the newly-recognized constitutional right

exception set forth at § 9545(b)(1)(iii).    Commonwealth v. Miller, 102

A.3d 988, 995 (Pa. Super. 2014) (“This Court has recognized that a new rule

of constitutional law is applied retroactively to cases on collateral review only

if the United States Supreme Court or our Supreme Court specifically holds it

to be retroactively applicable to those cases.”).

      For each of the foregoing reasons, we conclude that the PCRA court

correctly dismissed Appellant’s fifth petition as untimely.     Accordingly, we

affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2015




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