J-S61020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 KEITH BARTELLI                            :
                                           :
                    Appellant              :   No. 1873 EDA 2017

                  Appeal from the PCRA Order May 17, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0707261-1995

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.:                         FILED NOVEMBER 14, 2018

      Keith Bartelli appeals from the order that dismissed as untimely his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

      The PCRA court offered the following history of this case.

             Appellant was convicted in May of 1996 of committing the
      crimes of robbery, burglary, and aggravated assault following a
      non-jury trial before the Honorable Ricardo C. Jackson of the Court
      of Common Pleas of Philadelphia County and was sentenced to
      thirty-nine years’ probation on September 27, 1996. Subsequent
      thereto, on March 24, 1999, [A]ppellant appeared before Judge
      Jackson for resentencing and he received a term of incarceration
      of thirty-one to sixty-two years. Appellant appealed to the
      Superior Court, which dismissed the appeal for failure to file a
      brief. Appellant thereafter filed a PCRA petition asserting that
      prior counsel was ineffective for failing to file an appellate brief.
      On August 16, 2001, said petition was granted and [A]ppellant
      was given the right to file a notice of appeal nunc pro tunc.

            Appellant filed said notice and on November 17, 2003, the
      Superior   Court     affirmed    the   judgment  of   sentence.
      Commonwealth v. Bartelli, 841 A.2d 570 (Pa.Super. 2003)
      ([unpublished memorandum]). Appellant then filed a petition for
      allowance of appeal in the Pennsylvania Supreme Court, which
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      [was denied] on March 31, 2004. Commonwealth v. Bartelli,
      847 A.2d 1277 (Pa. 2004) (Table).

            On September 1, 2004, [A]ppellant filed a PCRA petition and
      after he was granted the right to proceed pro se, Judge Jackson,
      to whom the matter had been assigned to rule upon [A]ppellant’s
      PCRA petition, issued an order on May 6, 2008, dismissing
      [A]ppellant’s petition. Appellant did not file a notice of appeal
      from that order.

             Appellant filed a second PCRA petition on July 9, 2015,
      wherein he asserted that [his sentence] was illegal pursuant to
      Alleyne v. United States, [570 U.S. 99] (2013), because it was
      composed of mandatory minimum sentences, which the United
      States Supreme Court ruled to be unconstitutional in Alleyne
      when the fact-finder did not determine the facts that triggered the
      application of the mandatory sentence. On December 1, 2015,
      th[e PCRA c]ourt, which was administratively assigned to the
      matter and which sent [A]ppellant a Pa.R.Crim.P. 907 Notice of
      Intent to Dismiss, issued an order dismissing [A]ppellant[’s] PCRA
      petition without a hearing. Appellant did not file a notice of
      appeal.

            On June 1, 2016, [A]ppellant filed his third PCRA petition
      wherein he alleged that he was entitled to relief pursuant to the
      case of Montgomery v. Louisiana[, 136 S. Ct. 718 (2016)].
      Th[e PCRA c]ourt sent [A]ppellant a Rule 907 Notice after which,
      on May 17, 2017, [it] issued an order dismissing his PCRA petition.
      On June 2, 2017, [A]ppellant filed a timely notice of appeal.

PCRA Court Opinion, 6/14/17, at 1-2 (footnotes omitted).

      Appellant presents this Court with the following question: “Did the PCRA

court err in failing to properly apply the exception o[ut]lined in 42 Pa.C.S.

§ 9545(b)(1)(ii)?” Appellant’s brief at ix.

      We begin with a discussion of the relevant law. “When reviewing the

denial of a PCRA petition, our standard of review is limited to examining

whether the PCRA court’s determination is supported by evidence of record


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and whether it is free of legal error.” Commonwealth v. Jordan, 182 A.3d

1046, 1049 (Pa.Super. 2018).

      The PCRA court dismissed Appellant’s petition as untimely. It is well-

settled that the timeliness of a post-conviction petition is jurisdictional. See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa.Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (“[I]f a

PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”)).        Therefore, before

considering whether Appellant’s petition raised valid substantive claims, we

must determine whether the petition was timely filed.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves, that

an exception to the time for filing the petition is met, and that the claim was

raised within sixty days of the date on which it became available. 42 Pa.C.S.

§ 9545(b). Those exceptions include instances where “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,” and where “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




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period provided in this section and has been held by that court to apply

retroactively.” 42 Pa.C.S. § 9545(b)(1)(ii), (iii).

       In his petition, Appellant alleged that his sentence was illegal under

Alleyne, and that the Montgomery decision mandates that Alleyne be

considered a new substantive rule of constitutional law that must be applied

retroactively.     PCRA Petition, 5/22/16,1 at 9-12. The PCRA court rejected

that claim as follows.

       [T]he holding of Montgomery does not apply to [A]ppellant. In
       Montgomery, the United States Supreme Court held that the rule
       announced in Miller v. Alabama, 567 U.S. 460 (2012), that a
       sentence of life imprisonment without parole violates the 8 th
       Amendment to the United States Constitution when imposed
       automatically on a juvenile, applies retroactively to juveniles
       sentenced to life imprisonment without parole who are
       seeking state collateral relief. Appellant was neither a juvenile nor
       sentenced to life imprisonment without parole. Moreover, to date,
       neither the United States Supreme Court nor the Pennsylvania
       Supreme Court has ruled that the holding of Montgomery applies
       retroactively to non-life sentences or adults. Thus, Montgomery
       did not provide Appellant with an avenue of relief.

       [T]o the extent that [A]ppellant’s argument relies on the holding
       of Alleyne, in Commonwealth v. Washington, 142 A.3d 810
       (Pa. 2016), the Pennsylvania Supreme Court discussed the
       retroactivity of Alleyne, and held that “substantive rules are
       those that decriminalize conduct or prohibit punishment against a
____________________________________________


1 The petition is dated March 22, 2016, but was postmarked and docketed on
June 1, 2016. The PCRA court noted the dates, but determined that
Appellant’s petition was untimely using either filing date. PCRA Court Opinion,
6/14/17, at 2 n.3. While we agree with the PCRA court’s assessment, for the
sake of argument we will use March 22, 2016, a date within sixty days of the
January 25, 2016 Montgomery decision, as the filing date under the prisoner
mailbox rule. See, e.g., Commonwealth v. Whitehawk, 146 A.3d 266, 268
n.3 (Pa.Super. 2016) (deeming PCRA petition filed on date it was given to
prison authorities for mailing).

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      class of persons.” 142 A.2d at 813 (citing Montgomery, 136 S.
      Ct. at 729-30). The Court in Washington agreed with the
      Commonwealth’s argument that “the Alleyne rule neither alters
      the range of conduct or the class of persons punished by the law,”
      and is therefore not a substantive rule of constitutional law that
      was made retroactive on state collateral review by Montgomery.
      Instead, in Washington, the Pennsylvania Supreme Court held
      specifically that Alleyne does not apply retroactively to cases
      pending on collateral review. The Court then ruled Washington’s
      judgment of sentence was not illegal under Alleyne.

      The same is true in the instant case. Appellant therefore failed to
      satisfy the “newly recognized constitutional right” exception
      enumerated in 42 Pa.C.S.A. § 9545(b)(1)(iii).

PCRA Court Opinion, 6/14/17, at 4-5 (footnote and some citations omitted;

emphasis in original). The PCRA court’s decision is supported by both the law

and the record.

      In what appears to be tacit acknowledgment of the futility of his reliance

upon Alleyne and Montgomery, in this Court Appellant abandons his reliance

upon the subsection (b)(1)(iii) exception and instead invokes the newly-

discovered-facts exception of subsection (b)(1)(ii).    Appellant offers much

discussion of the law regarding the exception, but little indication of its

relevance to his case.   See Appellant’s brief at 17-21.     Rather, Appellant

merely states “Appellant's judgment became final on March 31, 2004, due to

prior counsel Ch[r]istopher Warren’s failure to file Appellant’s brief with the

Sup[e]rior court, thus, causing the dismissal of Appellant’s Appeal and

prejudicing Appellant. Appellant filed a subsequent PCRA Petition which was

deemed untimely.” Appellant’s brief at 21 (internal quotation marks omitted).




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       Appellant    has    not   properly      invoked   the   newly-discovered-facts

exception. First, “exceptions to the time bar must be pled in the PCRA petition,

and may not be raised for the first time on appeal.”             Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa.Super. 2007) (citing, inter alia, Pa.R.A.P. Rule

302(a)).    Furthermore, the only fact he mentions (the failure of Attorney

Warren to file a brief), was known to Appellant back in 2001, when Appellant

cited that fact as the basis for restoration of his direct appeal rights. 2 See

PCRA Petition, 5/7/01, at 3. Hence, the record establishes that Appellant did

not file the instant 2016 petition with sixty days of discovering that fact of

Attorney Warren’s failure to file a brief.

       Appellant’s petition was untimely and he failed to raise a valid exception.

Therefore, neither the PCRA court nor this Court has jurisdiction to entertain

the numerous substantive questions Appellant raised in his brief.                See

Appellant’s brief at A-D, ix. Accordingly, Appellant is entitled to no relief.

       Order affirmed.




____________________________________________


2 As noted earlier, Appellant’s direct appeal rights were reinstated in 2001
after the filing of a timely PCRA petition, and his judgment of sentence did not
become final until 2004, after this Court affirmed his judgment of sentence on
direct appeal and our Supreme Court denied his petition for allowance of
appeal.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/18




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