J-S67016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

LUTHER S. RYALS, JR.,

                            Appellant                   No. 1321 EDA 2016


                  Appeal from the PCRA Order March 31, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0001198-2009


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                            FILED OCTOBER 11, 2016

        Luther S. Ryals, Jr. appeals pro se from the order entered March 31,

2016, dismissing as untimely his petition for relief filed pursuant to the Post

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

        In September 2008, Appellant sold 1.86 ounces of cocaine to a

confidential informant, whereupon he was arrested and charged by the

police. In July 2010, a jury convicted Appellant of possession of a controlled

substance, possession with intent to deliver a controlled substance, and

possession of paraphernalia.1          The trial court sentenced Appellant to an

aggregate sentence of eight and one-half to twenty years’ incarceration.

____________________________________________


1
    See 35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32), respectively.


* Former Justice specially assigned to the Superior Court.
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       Appellant timely appealed.        On August 31, 2011, this Court affirmed

the judgement of sentence.          See Commonwealth v. Ryals, 32 A.3d 848

(Pa. Super. 2011) (unpublished memorandum).              Appellant did not file a

petition for allowance of appeal with the Pennsylvania Supreme Court.

       In September 2011, Appellant filed his first petition for collateral relief.

The PCRA court dismissed the petition in January 2012. This Court affirmed,

and the Supreme Court of Pennsylvania denied Appellant’s petition for

allowance of appeal.       Commonwealth v. Ryals, 62 A.3d 460 (Pa. Super.

2012) (unpublished memorandum), appeal denied, 65 A.3d 414 (Pa. 2013).

       In May 2015, Appellant pro se filed the instant PCRA petition. Counsel

was appointed but filed a Turner/Finley “no merit” letter2 and sought leave

to withdraw his representation. In February 2016, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition and

granted counsel leave to withdraw. Appellant did not file a response thereto.

In April 2016, the PCRA court dismissed Appellant’s petition as untimely.

       Appellant pro se appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement.     In response, the PCRA court issued a statement directing our

attention to its previous Rule 907 notice to Appellant, explaining its decision.

       Appellant raises the following issues, restated for clarity:

____________________________________________


2
  See Commonwealth v. Turner, 544 A.2d 927                            (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).




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      1. Whether the PCRA court erred in failing to grant Appellant
      relief, when the sentencing court imposed an illegal sentence,
      well in excess of the statutory guidelines;

      2. Whether the PCRA court erred in failing to grant Appellant
      relief, when the sentencing court imposed a mandatory sentence
      now deemed unconstitutional and illegal; and

      3. Whether the PCRA court erred in failing to determine that
      Appellant qualified for the Recidivism Risk Reduction Incentive
      (RRRI) program.

See Appellant’s Brief at 5.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.   Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      In this case, the PCRA court dismissed Appellant’s petition without a

hearing.   See PCRA Court Order, 04/04/2016, at 1 (citing in support

Pa.R.Crim.P. 907).    There is no absolute right to an evidentiary hearing.

See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

On appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine

issues of material fact and in denying relief without an evidentiary hearing.”

Id.


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     Preliminarily, however, we must address the timeliness of Appellant’s

petition, as it implicates our jurisdiction. Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007). Under the PCRA, all petitions seeking collateral

relief must be filed within one year of the date the judgment of sentence

becomes final. Id. There are three statutory exceptions:

     (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).   Additionally, 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).

     Here, Appellant’s judgment of sentence became final on September

30, 2011.     See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment [of sentence]

becomes final at the conclusion of direct review … or at the expiration of



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time for seeking the review.”); Pa.R.A.P. 1113 (providing an Appellant thirty

days to file a petition for allowance of appeal with the Pennsylvania Supreme

Court).   Thus, Appellant had until October 1, 2012, to file a timely PCRA

petition, making his May 2015 petition patently untimely.

      Nevertheless,     Appellant      suggests   that    his   petition   satisfies   the

exception provided in Section 9545(b)(1)(iii).            See generally Appellant’s

Brief at 12-16. According to Appellant, the sentence imposed upon him is

illegal pursuant to a newly recognized constitutional rule.                Id. at 12-15

(citing in support Alleyne v. U.S., 133 S. Ct. 2151, 2155 (2013) (concluding

that “[a]ny fact that … increases the penalty for a crime is an ‘element’ that

must be submitted to the jury and found beyond a reasonable doubt”)).

Appellant further suggests this new rule must be applied retroactively, thus

entitling him to collateral relief. Id. at 16 (citing in support Montgomery v.

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

      Appellant’s reliance upon Montgomery to establish the retroactive

applicability of Alleyne is misplaced.       In Montgomery, the United States

Supreme Court recognized that state collateral review courts must give

retroactive   effect   to   a   new,    substantive      rule   of   constitutional    law.

Montgomery, 136 S. Ct. at 729.              However, the Pennsylvania Supreme

Court has recently determined that the rule announce in Alleyne was

neither substantive nor a “watershed” procedural rule and, therefore, did not

apply retroactively to cases pending on collateral review. Commonwealth


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v. Washington, --- A.3d ---, at *8 (Pa. 2016), see also Commonwealth

v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015) (same).

       In summary, Appellant’s petition was patently untimely, and he has

failed to establish an exception to the timeliness requirements of the PCRA.

Accordingly, the PCRA court did not have jurisdiction to review the merits of

Appellant’s claims and properly dismissed his petition.3

       Application to Amend denied. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




____________________________________________


3
 Appellant filed an application to amend his appellate brief, citing in support
Commonwealth v. Ciccone, --- A.3d --- (Pa. Super. 2016). The Court has
withdrawn this decision; thus, it offers Appellant no relief. See Order of
Court, 3114 EDA 2014, 08/11/2016.



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