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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                 1   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

DARYL PITTS,

                          Appellant                       No. 2124 EDA 2016


                   Appeal from the PCRA Order June 21, 2016
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-1206131-1997
                           CP-51-CR-1206141-1997

BEFORE:     SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                  FILED APRIL 04, 2017

        Appellant, Daryl Pitts, appeals pro se from the June 21, 2016 order

dismissing his fourth serial petition filed pursuant to the Post Conviction

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

        We take the factual and procedural history in this matter from our

review of the certified record. On June 16, 1999,     a   jury convicted Appellant
of burglary, theft, and robbery.' October 27, 1999, Appellant was sentenced

to an aggregate term of not less than thirty nor more than sixty years'

imprisonment. This Court affirmed his conviction on November 6, 2000, and

our Supreme Court denied his petition for allowance of appeal on April 16,


*   Retired Senior Judge assigned to the Superior Court.

"   See 18 Pa.C.S.A. §§ 3502, 3921, and 3701, respectively.
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2001.     (See Commonwealth v. Pitts, 768 A.2d 886 (Pa. Super. 2000),

appeal denied, 775 A.2d 805 (Pa. 2001)).

        Appellant filed his first PCRA petition on June 4, 2001. On January 30,

2002, the PCRA court dismissed the petition as meritless and permitted

counsel to withdraw.       This Court remanded the matter, concluding that

counsel's Finley2 letter did not address all of Appellant's issues.          (See

Commonwealth v. Pitts,        No. 552 EDA 2002, unpublished memorandum at

*9 (Pa. Super. filed Nov. 14, 2002)).            The PCRA court appointed new

counsel, who filed an amended petition addressing Appellant's concerns,

which the PCRA court dismissed on May 7, 2004.            This Court affirmed the

dismissal on August 25, 2005, and our Supreme Court denied Appellant's

petition for allowance of appeal on May 31, 2006. (See Commonwealth v.

Pitts, 884 A.2d    251 (Pa. Super. 2005), appeal denied, 899 A.2d 1123 (Pa.

2006)).

        Thereafter, Appellant filed   a   second PCRA petition on June 11, 2013,

which the PCRA court dismissed as untimely.             This Court affirmed the

dismissal on February 25, 2015. (See Commonwealth v. Pitts, 120 A.3d

392 (Pa. Super. 2015) (unpublished memorandum)).               Appellant filed his

third PCRA petition on August 13, 2015, which the court dismissed as

untimely. Appellant did not appeal.



2   Commonwealth v. Finley, 550 A.2d 213            (Pa. Super. 1988) (en banc);
see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).


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        Appellant filed the instant PCRA petition on March 23, 2016. The PCRA

court issued notice of intent to dismiss on June 1, 2016. See Pa.R.Crim.P.

907(1). Appellant responded on June 21, 2016. The PCRA court dismissed

the petition as untimely on June 21, 2016. This timely appeal followed.3

        Appellant raises two issues on appeal:
        I. Was it PCRA court error to summarily dismiss the PCRA
        [petition]
                 in light of the announcement by the United States
        Supreme Court [in] Montgomery v. Louisiana[, 136 S.Ct. 718
        (2016)]?
        II. Was the "[Commonwealth v. ]Lawson[, 549 A.2d 107 (Pa.
        1988)]" miscarriage of justice standard of the PCRA available to
        the Appellant for relief under the provisions at 42 Pa.C.S.A.        §
        9545(b)?
(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

3 The PCRA court did not order Appellant to file           a    statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).            It   issued an opinion on
July 8, 2016. See Pa.R.A.P. 1925(a).


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      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).                       Furthermore, "[a]lthough

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."

Commonwealth v. Fahy, 737 A.2d 214, 223                        (Pa. 1999) (citation   omitted).

      Here, Appellant's judgment of sentence became final on July 15, 2001,

ninety days after our Supreme Court denied his petition for allowance of

appeal and Appellant did not petition the United States Supreme Court for                         a

writ of certiatori.    See 42 Pa.C.S.A.       §   9545(b)(3); U.S. Sup. Ct.               R.   13.

Appellant therefore had until July 15, 2002 to file                  a   timely   PCRA   petition.

See Pa.C.S.A.    §    9545(b)(1).    He filed the instant petition on March 23,

2016. 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


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        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                 newly recognized

constitutional right exception to the PCRA time bar.                             (See Appellant's Brief,

at 7, 11-15); 42 Pa.C.S.A.              §   9545(b)(1)(iii). Specifically, he alleges that the
United States Supreme Court's decision in Montgomery, supra (holding

that Miller v. Alabama, 132 S.Ct. 2455 (2012), should be applied

retroactively), mandated retroactive application of Alleyne v. United

States, 133 S.Ct. 2151 (2013). (See Appellant's Brief, at 7, 11-15). 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, 146 A.3d 266,

271 (Pa. Super. 2016) (citation omitted).                              Neither Court has held that

Alleyne      is   applied retroactively. Rather, our Supreme Court recently issued

an opinion in        Commonwealth v. Washington, 142 A.3d 810                                (Pa. 2016),

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wherein it held "Alleyne does not apply retroactively to cases pending on

collateral review." Washington, supra at 820.

        Here, Appellant's argument that the decision of the United States

Supreme Court in Montgomery, supra, causes Alleyne to be applied

retroactively    is   meritless. In Montgomery, the Supreme Court held "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 constitutional right 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; Fahy,

supra at 223. Therefore, we affirm the order of the            PCRA   court.

        Order affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 4/4/2017




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