J-S61041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
              v.                          :
                                          :
SAMUEL LESLIE REED,                       :
                                          :
                   Appellant              :           No. 369 WDA 2016

                  Appeal from the PCRA Order February 3, 2016
               in the Court of Common Pleas of Allegheny County,
              Criminal Division, No(s): CP-02-CR-0010661-1984;
              CP-02-CR-0010662-1984; CP-02-CR-0010663-1984;
              CP-02-CR-0010673-1984; CP-02-CR-0010688-1984;
              CP-02-CR-0010689-1984; CP-02-CR-001690-1984;
                            CP-02-CR-0010691-1984

BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 31, 2016

       Samuel Leslie Reed (“Reed”) appeals, pro se, from the Order denying

his third Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       Following a non-jury trial, Reed was found guilty of numerous crimes

arising out of eight separate criminal informations, which were consolidated

for trial.   In March 1985, the trial court sentenced Reed to an aggregate

prison term of 45 to 90 years. Reed filed a Motion to Reconsider Sentence,

which the trial court granted. Reed’s sentence was reduced to an aggregate

prison term of 40 to 80 years.     This Court affirmed Reed’s judgment of

sentence, and the Pennsylvania Supreme Court denied allowance of appeal.
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See Commonwealth v. Reed, 533               A.2d 1077     (Pa. Super. 1987)

(unpublished memorandum), appeal denied, 539 A.2d 811 (Pa. 1988).

      On September 4, 1990, Reed filed a pro se PCRA Petition. The PCRA

court denied the Petition, and this Court affirmed the denial.              See

Commonwealth v. Reed, 748 A.2d 775 (Pa. Super. 1999) (unpublished

memorandum).       On December 26, 2002, Reed filed his second PCRA

Petition. The PCRA court dismissed Reed’s Petition.

      On November 17, 2015, Reed filed the instant PCRA Petition, his third.

The PCRA court entered a Pa.R.Crim.P. 907 Notice of Intent to Dismiss.

Thereafter, on February 3, 2016, the PCRA court denied Reed’s PCRA

Petition. Reed filed a timely Notice of Appeal.

      On appeal, Reed raises the following questions for our review:

      1. Did the PCRA court err, as [a] matter of law, by dismissing
         [Reed’s] Petition for collateral relief as untimely when his
         claim is a constitutional violation of his due process rights?

      2. Did the PCRA court err, as a matter of law, by dismissing
         [Reed’s] Petition for [c]ollateral [r]elief though his claim has
         retroactive effect?

Brief for Appellant at 3.

            On appeal from the denial of PCRA relief, our standard of
      review calls for us to determine whether the ruling of the PCRA
      court is supported by the record and free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013) (citation

omitted).



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     Under the PCRA, a defendant must file any PCRA petition within one

year of the date that the judgment becomes final.              42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or the expiration of

time for seeking review.”      Id. § 9545(b)(3).     The PCRA’s timeliness

requirements are jurisdictional in nature, and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

     Here, Reed’s judgment of sentence became final in 1988, when the

time for seeking review with the Supreme Court of the United States

expired.   Accordingly, Reed had until 1989, to file a timely PCRA petition.

Therefore, Reed’s November 2015 PCRA Petition is facially untimely.

     However, in the event that a petition is not filed within the one-year

time limitation, the PCRA provides three timeliness exceptions: (1) the

failure to raise the claim was the result of government interference; (2) the

facts of the new claim were unknown to the petitioner and could not have

been discovered with due diligence; or (3) the right asserted is a

constitutional right recognized by the United States Supreme Court or the

Pennsylvania Supreme Court after the time period provided in the section

and has been held to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i-iii).




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Any PCRA petition invoking one of these exceptions shall be filed within sixty

days of the date the claim could have been presented. Id. § 9545(b)(2).

      Here, Reed invokes the newly recognized constitutional right exception

based on the United States Supreme Court’s decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013).            See Brief for Appellant at 8-13.      In

Alleyne, the Supreme Court held that any fact that increases the sentence

for a given crime must be submitted to the jury and found beyond a

reasonable doubt.        Alleyne, 133 S. Ct. at 2155.        The Supreme Court

reasoned that a Sixth Amendment violation occurs where these sentence-

determinative facts are not submitted to a jury.        Id. at 2156.    Reed thus

argues that his sentence is illegal based upon Alleyne.             See Brief for

Appellant at 8-11.

      Here, Reed filed the instant PCRA Petition on November 17, 2015, well

over sixty days after June 17, 2013, the date that Alleyne was decided.

See 42 Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923

A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to an after-

recognized constitutional right, this Court has held that the sixty-day period

begins to run upon the date of the underlying judicial decision.”).

      Even   if   Reed    had   properly    invoked   the   exception   at   section

9545(b)(1)(iii), Alleyne is not implicated as Reed was not sentenced under

any mandatory sentencing statutes. See N.T., 3/14/85, at 2-3 (wherein the

sentencing court stated that it was “not going to use the mandatory



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sentencing laws.”).   However, even if Alleyne applied to Reed’s sentence,

the rule established in Alleyne does not apply retroactively where, as here,

the judgment of sentence is final.    See Commonwealth v. Washington,

2016 Pa.LEXIS 1536, *8 (Pa. 2016) (en banc) (stating that “Alleyne does

not apply retroactively to cases pending on collateral review[.]”).1

      Based upon the foregoing, the PCRA court properly denied Reed’s

PCRA Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2016




1
  In support of his argument that Alleyne applies retroactively, Reed cites
Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In Montgomery, the
United States Supreme Court held that Miller v. Alabama, 132 S. Ct. 2455
(2012), applies retroactively to juveniles, who were under the age of
eighteen at the time of the commission of the crime, sentenced to
mandatory life sentences without the possibility of parole. Montgomery,
136 S. Ct. at 736.      However, unlike Miller, Alleyne does not apply
retroactively. See Washington, supra.


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