J-S08007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES EDWIN CORNMAN

                            Appellant               No. 1163 WDA 2016


               Appeal from the PCRA Order dated July 26, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000765-2011
                                          CP-25-CR-0001079-2011

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                            FILED JUNE 07, 2017

        Appellant James Edwin Cornman appeals from the order of July 26,

2016, denying his serial Post Conviction Relief Act (“PCRA”) 1 petition as

untimely. For the reasons that follow, we affirm.

1. Appellant’s Conviction and Direct Appeal.

        This appeal references two separate trial court docket numbers which

have interwoven histories. Both cases relate to robberies which took place in

Erie, Pennsylvania, on February 28, 2011: docket No. CP-25-CR-0001079-

2011 (“1079-11”) relates to the robbery of Sara’s Market, and docket No.

CP-25-CR-0000765-2011 (“765-11”) relates to the robbery of a Kwik Fill gas



____________________________________________
1
    42 Pa.C.S. §§ 9541-9546.
J-S08007-17


station. See Commonwealth v. Cornman, 970 WDA 2012 (Pa. Super.,

June 18, 2013) (unpublished memorandum).

       On July 19, 2011, Appellant was tried by a jury and convicted of

robbery and related crimes under No. 1079-11.2 The next day, another jury

convicted Appellant of robbery and related crimes under No. 765-11. 3

Sentencing proceedings were held in both cases on September 14, 2011,

and Appellant was sentenced to an aggregate of ten to forty years’

imprisonment. 4 For each of his robbery convictions, Appellant received a

sentence of five to twenty years’ incarceration, 5 in accordance with a

Sentencing Code provision that at that time required that Appellant receive a



____________________________________________
2
  Appellant was convicted of Robbery (18 Pa.C.S. § 3701), Possession of an
Instrument of Crime (18 Pa.C.S. § 907), Carrying Prohibited Offensive
Weapons (18 Pa.C.S.A. § 908), Recklessly Endangering Another Person (18
Pa.C.S. § 2705), Simple Assault (18 Pa.C.S. § 2701(a)(3)), Terroristic
Threats (18 Pa.C.S. § 2706(a)(1)), Unlawful Possession of a Firearm (18
Pa.C.S. § 6105(a)(2)), and Carrying a Firearm Without a License (18 Pa.C.S.
§ 6106(a)(1)). See Corman, 970 WDA 2012 at 1 n.1.
3
 Appellant was convicted of the same charges as those in his other case, as
well as Criminal Conspiracy (18 Pa.C.S. § 903), Theft by Unlawful Taking (18
Pa.C.S. § 3921), and Receiving Stolen Property (18 Pa.C.S. § 3925). See
Corman, 970 WDA 2012 at 1 n.1
4
 The sentence Appellant received for each count was run concurrently to the
sentences he received for each other count on the same docket, but the
sentences for the two cases were run consecutively.
5
  Appellant’s sentences of five years’ incarceration fell below the standard
range of the sentencing guidelines. Appellant received mitigated sentences
due to “defendant’s age, his rehabilitative potential, [and] prior record.”
N.T., 9/14/11, at 17.


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five-year mandatory minimum sentence for having committed robbery while

using a firearm. See 42 Pa.C.S. § 9712(a).

       Following Appellant’s direct appeal, which referenced both trial court

docket numbers, we affirmed Appellant’s judgments of sentence on June 18,

2013. One day before we issued our decision, on June 17 2013, the

Supreme Court of the United States decided Alleyne v. United States, 133

S. Ct. 2151 (2013), which held that in cases tried by a jury, imposition of a

statutory mandatory minimum sentence is unconstitutional unless all facts

compelling that sentence are determined by the jury. Appellant did not raise

that constitutional issue with respect to his own sentence in his direct appeal

or at any time before the judgment on his direct appeal became final.6 The

docket reflects that copies of our decision were sent to Appellant by the trial

court on September 17, 2013.

2. Appellant’s Post-Conviction Petitions and Appeals.

       After Appellant’s direct appeal, the procedural histories of these cases

became convoluted.7 Unfortunately, these histories — and, in particular, that

of the appeals in each of the cases — bear on the timeliness of the PCRA
____________________________________________
6
  The only subject of Appellant’s direct appeal was whether the trial court
abused its discretion in deciding that Appellant’s own testimony opened the
door to permit the Commonwealth to present evidence of the second
robbery at Appellant’s trial for the first robbery.
7
    The dockets of these two cases are replete with pro se filings and
responsive trial court orders; the recitation in the text does not include every
filing on each docket, but only those necessary to dispose of the matters
before us.


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petition that now is before us, and it therefore is necessary to review these

histories in some detail. The reader is cautioned that review of the following

paragraphs may be challenging; we have highlighted the relevant appeal

numbers as a partial road map.

       First, it appears that on July 24, 2014, 8 Appellant filed documents

titled “In Re: Demand for Trial Transcripts, Police Reports, Discovery,” and

“Motion for Leave to Proceed [In Forma Pauperis],” referencing only Docket

No. 765-11. In these documents, Appellant claimed that his trial counsel

provided ineffective representation at his sentencing hearing, and requested

a copy of his transcripts.9 The PCRA court denied these requests on July 28,

2014, because Appellant had “no pending matters” before it.

       On August 5, 2014, Appellant filed a motion at Docket No. 765-11 that

was titled “Bill In Nature Of Bill In Review” and that appears to have asked

the court to reconsider denying his July 24, 2014 requests. This motion was

denied by the PCRA court on September 3, 2014, again because the court

____________________________________________
8
  Pursuant to the prisoner mailbox rule, the dates of filing of Appellant’s
documents were the dates he placed them in the hands of prison authorities.
See Commonwealth v. Fransen, 986 A.2d 154, 156 n.5 (Pa. Super.
2009). Nevertheless, unless relevant for timeliness calculations, we recount
Appellant’s pro se filings in this case by the dates reflected on the PCRA
court’s docket.
9
  In support, Appellant attached a “Petition for Writ of Mandamus and/or
Extraordinary Relief” which he filed in the Pennsylvania Supreme Court on
December 12, 2013. In that petition, Appellant cited a provision of the PCRA
(42 Pa.C.S. § 9545(b)), alleged his trial counsel was ineffective, and
requested copies of transcripts and other documents related to his case.


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had “no pending matters” in Appellant’s case. Appellant filed a notice of

appeal from the denial of his Bill in Nature of Bill of Review on September

11, 2014, and that appeal was docketed in this Court at No. 1484 WDA

2014. It does not appear that Appellant was appointed counsel regarding

either his filings before the PCRA court, or the related appeal at No. 1484

WDA 2014.

       While that appeal was pending on trial court Docket No. 765-11,

Appellant filed a PCRA petition on September 18, 2014, that referenced both

trial court docket numbers. On September 24, 2014, the PCRA court

dismissed the petition “only as it relates to Docket No. 765 of 2011,”

because, due to the pending appeal in that case (that is, Appeal No. 1484

WDA 2014), the PCRA court was without jurisdiction to entertain a PCRA

petition with respect to it. See Order, 9/24/14.10

       On September 24, 2014, counsel was appointed to represent Appellant

regarding the PCRA petition as it related to the other trial court docket, No.

1079-11. On October 24, 2014, appointed counsel filed a “no merit” letter


____________________________________________
10
   See Commonwaelth v. Moore, 715 A.2d 448 (Pa. Super. 1998). We
explained in that case: “Pennsylvania Rule of Appellate Procedure 1701(a)
states that, ‘[e]xcept as otherwise prescribed by these rules, after an appeal
is taken or review of a quasijudicial order is sought, the trial court or other
government unit may no longer proceed further in the matter.’ The effect of
this provision is that once a party has properly appealed a decision of the
trial court, the trial court lacks jurisdiction to act further on the case.” 715
A.2d at 453 (citing Commonwealth v. Pearson, 685 A.2d 551, 557 (Pa.
Super. 1996), appeal denied, 549 Pa. 699, 700 A.2d 439 (1997)).


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and petition to withdraw. 11 Counsel’s no merit letter did not address the

timeliness of Appellant’s September 18, 2014 PCRA petition, but only the

merits of Appellant’s underlying PCRA claims. The letter also did not

challenge Appellant’s sentence, even though three weeks prior to the date of

the letter, on October 3, 2014, this Court held that the Sentencing Code

provision under which Appellant’s mandatory minimum sentence was

imposed, 42 Pa. C.S. § 9712, was unconstitutional in light of the U.S.

Supreme Court’s decision in Alleyne. See Commonwealth v. Valentine,

101 A.3d 801, 812 (Pa. Super. 2014). Rather, counsel’s letter stated, “The

instant sentence was patently legal including the provision of a mandatory

minimum sentence.” Letter, 10/24/14, at 4 (unpaginated).

       On November 3, 2014, Appellant filed a motion titled “Bill of

Exceptions,” which referenced both docket numbers. This document appears

to have been a response to appointed counsel’s no merit letter on No. 1079-

11, and it alleged PCRA counsel’s ineffectiveness. The “Bill of Exceptions”

was quashed by the PCRA court on November 7, 2014, but only to the

extent it related to trial court Docket No. 765-11, due to the appeal pending

in that case (No. 1484 WDA 2014). Appellant filed a notice of appeal from

the quashal of his Bill of Exceptions on November 19, 2014, but referenced
____________________________________________
11
  Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
requires PCRA counsel wishing to withdraw to present a “no-merit” letter to
the petitioner listing each claim the petitioner wishes to have reviewed,
describing the extent to which those claims were reviewed, and explaining
why the petitioner's issues are meritless.


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only No. 765-11. That appeal was docketed in this Court at No. 1908 WDA

2014.

       On January 29, 2015, we dismissed the appeal at No. 1484 WDA

2014 (Appellant’s appeal from the denial of the “Bill In Nature Of Bill In

Review” that he had filed in No. 765-11) for Appellant’s failure to file a brief.

See Order, 1/29/15 (per curiam).

       On   February     6,   2015,    we      remanded   No.   1908   WDA   2014

(Appellant’s appeal from the denial of the “Bill of Exceptions” filed in No.

765-11) so that the PCRA court could determine whether Appellant was

entitled to appointed counsel. On February 25, 2015, the PCRA court entered

an order stating that Appellant was not entitled to counsel.

       On February 25, 2015, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s September 18, 2014 PCRA petition

without a hearing. 12 The court dismissed the PCRA petition on March 23,

2015, but it denied appointed counsel’s petition to withdraw. Appellant’s

appointed counsel filed a notice of appeal on Appellant’s behalf on April 15,




____________________________________________
12
   Like counsel’s no-merit letter, the PCRA court’s Rule 907 notice did not
address the timeliness of Appellant’s September 18, 2014 PCRA petition, but
only the merits of Appellant’s underlying PCRA claims. Regarding the
mandatory minimum sentence received by Appellant, the PCRA court
concluded that Appellant’s claim lacked merit because, “At the time of
sentence, § 9712 was constitutional and applicable to Petitioner’s conviction.
. . . Alleyne does not apply retroactively to cases in which judgment of
sentence has become final.” See Pa.R.Crim.P. 907 Notice, 2/25/15, at 6.


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2015. That appeal, which was in reference to the PCRA petition in No. 1079-

11 only, was docketed in this Court at No. 623 WDA 2015.13

        On May 8, 2015, Appellant filed another pro se PCRA petition, which

referenced both docket numbers. In it, he alleged that both trial counsel and

appointed PCRA counsel were ineffective. That same day, Appellant

petitioned this Court regarding his appeal at No. 623 WDA 2015 and stated

that he wanted to proceed pro se and to dismiss the appeal, because it was

“impeding [Appellant’s] ability to [seek] PCRA relief.”

        On May 14, 2015, we dismissed the appeal at No. 1908 WDA 2014

(Appellant’s appeal from the denial of the “Bill of Exceptions” he had filed in

No. 765-11) for Appellant’s failure to file a brief. See Order, 5/14/15 (per

curiam). That same day, we ordered the PCRA court to conduct a Grazier14

hearing on No. 623 WDA 2015 to determine whether Appellant wished to

waive his right to court-appointed representation, and whether that waiver

was knowing, intelligent, and voluntary. We denied Appellant’s request to

dismiss his appeal until he had been granted the right to proceed pro se.




____________________________________________
13
   On April 20, 2015, Appellant sent a letter to appointed counsel stating his
disappointment that counsel had filed an appeal to the denial of his PCRA
petition, because Appellant wished to file a subsequent PCRA petition
alleging counsel’s ineffectiveness. A copy of this letter was filed with the
court on April 23, 2015.
14
     Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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       On June 3, 2015, the PCRA court quashed Appellant’s May 8, 2015

PCRA petition, because it had been filed while an appeal was pending. 15 The

PCRA court also held a Grazier hearing on that date, where it established

that Appellant would proceed pro se on No. 623 WDA 2015.

       On June 16, 2015, Appellant petitioned the PCRA court to reinstate his

May 8, 2015 PCRA petition because there was no longer an appeal pending

on No. 765-11 and because he had filed a motion in this Court to dismiss his

appeal related to No. 1079-11 (No. 623 WDA 2015). The court denied

Appellant’s petition on June 17, 2015.

       On June 24, 2015, Appellant’s appeal at No. 623 WDA 2015

(Appellant’s appeal from the dismissal of his first PCRA petition in No. 1079-

11) was discontinued at Appellant’s request. See Order, 6/24/15 (per

curiam). As a result of this discontinuance, Appellant no longer had any

appeals pending in this Court as of June 24, 2015.

3. The PCRA Petition Now at Issue.

       On July 6, 2015, Appellant filed a new PCRA petition that referenced

both case numbers. The petition claimed that Appellant’s trial counsel was

ineffective   for   failing   to   adequately    advise   Appellant   regarding   the

consequences of exercising his right to testify and for failing to file post-

sentence motions, and claimed that subsequent counsel was also ineffective
____________________________________________
15
   On the day the petition was filed, May 8, 2014, Appellant had an
outstanding appeal on each docket number: No. 1908 WDA 2014 (on No.
765-11), and No. 623 WDA 2015 (on No. 1079-11).


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for failing to preserve these claims. See PCRA Pet., 7/6/15, at 9, 9(a), 9(b).

Appellant did not specifically mention his mandatory minimum sentence in

this petition. On July 9, 2015, without leave of court, 16 Appellant filed an

amended version of this petition that added an argument that Appellant’s

petition was timely because Appellant’s previous appeals (which had

prevented his PCRA petitions from proceeding) had recently been dismissed.

Appellant asserted, “all this time must be tolled that was not permitted to

have his PCRA heard as a result of the various appeal[s] that were filed that

stripped this court of jurisdiction.” See PCRA Pet., 7/9/15, at 2(a). It is this

July 6, 2015 petition (purportedly as amended) that is now before this

Court.

       The PCRA court appointed new counsel to represent Appellant. 17 On

February 19, 2016, counsel filed a no-merit letter and petition to withdraw.18

Appellant responded to this notice with pro se filings on March 9, 2016, and




____________________________________________
16
  A PCRA petitioner may amend a petition only when leave to do so is
granted by the PCRA court. See Commonwealth v. Porter, 35 A.3d 4, 12
(Pa. 2012).
17
  The PCRA court held a hearing on July 28, 2015, to ensure that Appellant
desired representation by court-appointed counsel.
18
   Counsel’s no merit letter did not address the timeliness of Appellant’s
July 6, 2015 PCRA petition, but only Appellant’s underlying PCRA claims,
which counsel found to be lacking in merit. Regarding Appellant’s sentence,
the letter stated that Appellant received “the mandatory minimum at the
time.”


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March 21, 2016; also, without leave of court, Appellant filed an amended

petition on March 21, 2016.19

       On June 22, 2016, the PCRA court issued a Pa.R.Crim.P. 907(1) Notice

of its intention to dismiss Appellant’s PCRA petition without a hearing

because of the petition’s untimeliness, and it granted appointed counsel’s

petition to withdraw. The Rule 907 Notice stated:

          Here, [Appellant] was sentenced at both dockets on
          September 14, 2011. [Appellant] filed a direct appeal at
          both dockets, and on June 18, 2013, the Superior Court
          affirmed his judgments of sentence. Commonwealth v.
          Cornman, 970 WDA 2012 (Pa. Super. June 18, 2013)[.]
          [Appellant] did not file a Petition for Allowance of Appeal.
          Therefore, [Appellant]’s judgments of sentence became
          final on July 18, 2013, at the expiration of the thirty-day
          time period for seeking [review] with the Pennsylvania
          Supreme Court. 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P.
          1113(a). Therefore, [Appellant]’s time to file a PCRA
          petition expired on July 18, 2014. 42 Pa.C.S.A. §
          9545(b)(1); 1 Pa.C.S. § 1908. As his current PCRA
          petitions were not filed until June and [] July [of] 2015,
          they are patently untimely. Furthermore, [Appellant] has
          failed to demonstrate a timeliness exception.

Notice, 6/22/16, at 2.

       On July 13, 2016, Appellant responded to the court’s Rule 907 notice.

On July 15, 2016, before the PCRA court received Appellant’s response, the

court dismissed Appellant’s PCRA petition as untimely. On July 26, 2016, the

PCRA court issued an “Amended Final Order” that took Appellant’s response


____________________________________________
19
   The amended petition did not further address the timeliness of the
petition.


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into account and again dismissed Appellant’s PCRA petition as untimely. 20

Appellant thereafter filed a timely notice of appeal and a timely Pa.R.A.P.

1925(b) Concise Statement of Matters complained of on appeal.

       Appellant raises three issues in his pro se brief to this Court:

       1. Did the lower court err when it dismissed Appellant’s PCRA
       petition as being untimely?

       2. Was counsel ineffective for failing to file post-sentence motion
       to correct illegal sentence, where all in both cases should have
       merged with each other, because both robberies were part of a
       single “criminal episode”?

       3. Was appellant counsel ineffective when he failed to request
       the Superior Court [hear] re-argument of Appellant’s illegal
       sentence, in which the sentencing court imposed mandatory
       sentences under [42 Pa.C.S. § 9712]?

Appellant’s Brief at 2, 3, 4.

       Our standard of review regarding an order dismissing 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. Halley,

870 A.2d 795, 799 n.2 (Pa. 2005).

       A PCRA petition must be timely, as the timeliness of a post-conviction

petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013). Generally, a petition for relief under the PCRA, including

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

____________________________________________
20
  We note that a court generally retains jurisdiction to amend any order for
30 days. 42 Pa.C.S. § 5505.



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the judgment is final unless the petition alleges, and the petitioner pleads

and proves, that an exception to the time for filing the petition set forth at

42 Pa.C.S. § 9545(b)(1) is met. See 42 Pa.C.S. § 9545(b). One of those

exceptions is 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 period provided in this section and
        has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(iii).21 A PCRA petition invoking any of the statutory

exceptions must “be filed within 60 days of the date the claims could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Hernandez, 79 A.3d 651-52

(citations omitted).

        A PCRA petition may not be filed while an appeal in the same case is

pending before an appellate court, be it a direct appeal or appeal of an

earlier PCRA petition. See Pa.R.A.P. 1701(a); Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000). In the event that a pending appeal of an earlier

PCRA petition prevents the immediate filing of a subsequent PCRA petition

____________________________________________
21
     The other two exceptions are:

        (i) the failure to raise the claim previously was the result of
        interference of 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[.]

42 Pa.C.S. § 9545(b)(1).


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after the one-year deadline, the petitioner must not only file his petition

within 60 days of the disposition of the appeal (as that is the earliest his

petition could have been presented), but the petitioner still must also show

that one of the Section 9545(b)(1) exceptions applies. Id.

      In his brief, Appellant argues that we affirmed his judgment of

sentence on August 18, 2013, and that his sentence became final thirty days

later, on September 18, 2013. See Appellant’s Brief at 2. According to

Appellant, he therefore had one year, until September 18, 2014, to file his

petition. Id. Appellant therefore claims that his instant PCRA petition was

timely filed on September 18, 2014, and amended on May 8, 2015, and

March 21, 2016. Id. at 3.

      Appellant’s assertions are belied by the record. We affirmed his

judgment of sentence on June 18, 2013, not August 18, 2013. As Appellant

did not petition for allowance of an appeal with the Supreme Court, his

judgment of sentence became final on July 18, 2013, after the 30 day period

for filing a petition for allowance of appeal expired. See 42 Pa.C.S. §

9545(b)(3). Appellant therefore had one year, or until July 18, 2014 (not

September 18, 2014), to file his PCRA petition. Appellant’s instant petition

was filed on July 6, 2015, well after that deadline.

      Appellant’s argument suggests that he believes this appeal is from his

September 18, 2014 PCRA petition. That is incorrect. The petition that

Appellant filed on September 18, 2014, was dismissed in relation to Case


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J-S08007-17


No. 765-11 (because it was filed when an appeal was pending in that case);

and, in relation to Case No. 1079-11, relief under the September 18, 2014

petition was denied by the PCRA court on June 24, 2015. The June 24

decision was appealed by Appellant, but that appeal was then discontinued

at Appellant’s request. Appellant’s present appeal therefore is not from and

has nothing to do with the September 18, 2014 petition. And even it did, for

the reasons we already have explained, he still would not be entitled to relief

because his PCRA deadline expired on July 18, 2014, making the

September 18, 2014 petition untimely.22

       Appellant’s instant petition, filed July 6, 2015, was filed within 60 days

of the date that his prior appeals on each docket number were completed

and the PCRA court regained jurisdiction. 23 However, Appellant must still

plead and prove that a timeliness exception under Section 9545(b)(1)

applies. Lark, 746 A.2d at 588. Appellant’s only cogent arguments asserting

a timeliness exception are found in his amended petition of July 9, 2015, and
____________________________________________
22
  Appellant’s argument also suggests that his May 8, 2015 PCRA petition
amended the September 18, 2014. The record shows, however, that the
May 8, 2015 petition was a new PCRA petition that was dismissed by the
PCRA court on June 3, 2015, because of the other appeals that were pending
at that time. See note 15, supra. Like the September 18, 2014 petition,
Appellant’s May 8, 2015 petition was untimely.
23
   In Case No. 765-11, Appellant had an appeal pending in our Court at No.
1908 WDA 2014 that was dismissed on May 14, 2015; the 60 days therefore
ran on July 13, 2015 for that case. In Case No. 1079-11, Appellant’s appeal
to our Court at No. 623 WDA 2015 was discontinued on June 24, 2015; the
60 days therefore ran on August 23, 2015 for that case.



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in his July 13, 2016 response to the PCRA court’s Rule 907 Notice. Even

assuming that these arguments constitute proper allegations of an exception

pursuant to Section 9545(b), 24 the arguments do not entitle Appellant to

relief.

          In his July 9, 2015, amended petition, Appellant asserts that “all this

time must be tolled that was not permitted to have his PCRA heard as a

result of the various appeal[s] that were filed that stripped this court of

jurisdiction.” See PCRA Pet., 7/9/15, at 2(a). However, as established by

Lark, Appellant was not only obligated to file a new PCRA petition within 60

days of the disposition of a prior appeal, but he also had to assert a

timeliness exception under Section 9545(b)(1).

          In Appellant’s July 13, 2016 response to the PCRA court’s Rule 907

Notice, Appellant seemed to suggest that his petition was timely because it

was filed within sixty days of the United States Supreme Court’s decision in

Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016), which states,

“when a new substantive rule of constitutional law controls the outcome of a

case, the Constitution requires state collateral review courts to give
____________________________________________
24
   Section 9545(b) states that a petition is untimely “unless the petition
alleges and the petitioner proves” applicability of one of the timeliness
exceptions. 42 Pa. C.S. § 9545(b). The allegations in Appellant’s response to
the Rule 907 notice were not contained in a “petition,” as required by this
section. The allegations in Appellant’s July 9, 2015 filing are properly
considered only if we accept that filing as an amendment of Appellant’s
July 6, 2015 petition, even though it was filed without leave of court.
Because Appellant’s arguments regarding an exception are without merit, we
need not decide the validity of Appellant’s purported amendment.


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retroactive effect to that rule.” Appellant argues that this statement applies

to the new rule of constitutional law articulated in Alleyne, which led to

most     mandatory        minimum        sentencing     schemes     being      declared

unconstitutional. According to Appellant, the rule in Montgomery requires

that the rule in Alleyne be applied retroactively, and renders the mandatory

minimum sentences received by Appellant illegal. Furthermore, Appellant

states that the mandatory minimum sentencing statute under which he was

sentenced should be deemed unconstitutional and therefore ineffective from

the    date   of   its   enactment.      See   Objs.,    7/13/16,   at   1-3     (citing

Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010)).

       Under 42 Pa.C.S. § 9545(b)(1)(iii), a PCRA petition based on a newly

recognized constitutional right is timely if brought within sixty days of the

Supreme Court decision announcing that right,25 and if “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.” Therefore, the Supreme Court decision must specifically

provide that the right be applied retroactively:

       Subsection (iii) of Section 9545 requires a petitioner to prove
       “there is a ‘new’ constitutional right and that the right ‘has been
       held’ by ‘that court’ to apply retroactively.” . . . “The language
       ‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a
____________________________________________
25
  We note that Appellant’s July 6, 2015 petition was filed before January 25,
2016, the date Montgomery was decided.


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     retroactivity determination must exist at the time that the
     petition is filed.”

Commonwealth v. Secreti, 134 A.3d 77, 80–81 (Pa. 2016) (citations and

brackets omitted) (quoting Commonwealth v. Abdul–Salaam, 812 A.2d

497, 501 (Pa. 2002)).

     Appellant’s reliance on Montgomery is not sufficient to satisfy these

requirements. Montgomery did not hold that Alleyne announced a new

substantive rule of constitutional law that applies retractively. Rather,

Montgomery clarified that the decision in Miller v. Alabama, 567 U.S. 460

(2012) — a case dealing with the constitutional rights of juveniles that has

no application here — announced a new substantive rule of law that would

be given retroactive application. See Secreti, 134 A.3d at 82. Both the

Supreme Court and this Court have held that Alleyne did not announce a

new substantive rule of law, and therefore does not apply retroactively to

cases pending on PCRA review. Commonwealth v. Washington, 142 A.3d

810, 820 (Pa. 2016); Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa.

Super. 2015).

     We recognize that Alleyne was decided while Appellant’s case was still

on direct review, and, therefore, application of Alleyne to Appellant’s case

would not have been considered retroactive if the issue were raised at that




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time.26 However, this Court can review the legality of a sentence only when

it has jurisdiction to do so. Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014). This Court lost jurisdiction over Appellant’s direct appeal

on August 19, 2013, and Appellant did not raise any issue regarding Alleyne

before we lost jurisdiction. For Appellant to obtain relief now, he was

required to have filed a timely PCRA petition, and, for the reasons we have

explained, he failed to do so. We therefore are constrained to hold that we

are unable to review the legality of Appellant’s sentence. See id.;

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

“[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”); cf. Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super.

2015) (remanding for resentencing where Alleyne was decided during

defendant’s direct appeal, and where defendant filed a timely PCRA petition).

Similarly, for that same reason, we have no jurisdiction to review the other

issues Appellant seeks to raise in this case. Accordingly, we must affirm the

decision by the trial court.

       Order affirmed.

       President Judge Emeritus Ford Elliott joins the memorandum.

       President Judge Gantman concurs in the result.
____________________________________________
26
   Alleyne was decided one day before this Court affirmed Appellant’s
judgment’ of sentence, and, therefore, 31 days before Appellant’s judgment
of sentence became final.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2017




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