J-S45029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

STEPFON L. WILSON

                            Appellant                 No. 3129 EDA 2016


                Appeal from the PCRA Order September 1, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0002060-1997


BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY PANELLA, J.                   FILED SEPTEMBER 19, 2017

        In 1997, a jury convicted Stepfon Wilson of second-degree murder and

kidnapping. The trial court imposed a mandatory sentence of life without

parole on the murder conviction, plus a consecutive term of four to twenty

years of imprisonment on the kidnapping conviction. We affirmed Wilson’s

judgment of sentence on November 12, 1999. Wilson did not seek review by

the Supreme Court of Pennsylvania.

        After his first two petitions pursuant to the Post Conviction Relief Act

(“PCRA”) were denied, he filed the instant petition on August 1, 2016. The

PCRA court dismissed his petition as untimely. This pro se appeal followed.

On appeal, Wilson argues that pursuant to Alleyne v. United States, 508
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S45029-17


U.S. 402 (2013) (holding judicial fact finding that leads to the imposition of

a mandatory minimum sentence is unconstitutional), Miller v. Alabama,

132 S.Ct. 2455 (2012) (ruling imposition of mandatory life without parole

sentences on juvenile offenders is unconstitutional), and Montgomery v.

Louisiana, 136 S.Ct. 718 (2016) (finding the rule announced in Miller to be

applied retroactively), he is entitled to resentencing.

      There is no doubt Wilson’s petition, filed over 16 years after his

judgment of sentence became final, is untimely under the PCRA. See

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (“A PCRA petition,

including a second or subsequent one, must be filed within one year of the

date the petitioner’s judgment of sentence became final[.]”) If a PCRA

petition is facially untimely, the petitioner must plead and prove the

applicability of one of three timeliness exceptions in order to invoke the

jurisdiction of the PCRA. See Commonwealth v. Hernandez, 79 A.3d 649,

651 (Pa. Super. 2013).

      Here, Wilson makes no attempt in his appellate brief to argue that his

petition qualified for one of the three timeliness exceptions. Furthermore, he

is due no relief even if we assume he is attempting to argue Montgomery

rendered Alleyne retroactive, and therefore his petition qualifies under the

“newly recognized Constitutional right” exception contained in 42 Pa.C.S.A. §

9545(b)(1)(iii).




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       Wilson does not argue he was a juvenile at the time he committed

these crimes. Indeed, the trial court records indicate he was born on

December 15, 1961; thus, he would have been twenty-five years old when

he committed these crimes in February of 1997. As a result, he cannot claim

the relief provided by Miller and Montgomery.

       Presumably, Wilson understood this, which is why he attempts to tie

Montgomery to Alleyne instead of Miller. A generous reading of his

appellate brief could support an argument that the imposition of a life

sentence is the functional equivalent of a mandatory minimum sentence.

However, even assuming Montgomery rendered not just Miller but also

Alleyne retroactive,1 there was no judicial fact finding involved. The

mandatory life sentence flowed directly from the jury’s finding that Wilson

had committed second-degree murder. Thus, Alleyne does not apply to

Wilson.

       As Wilson has failed to establish the PCRA court erred in concluding

that the petition was untimely, we affirm the order dismissing Wilson’s

petition.

       Order affirmed. Jurisdiction relinquished.



____________________________________________


1
  The Supreme Court of Pennsylvania has held Alleyne is not to be applied
retroactively for purposes of the application of the PCRA’s timebar. See
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).



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J-S45029-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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