J-S27045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

DARRYL E. DUNST,

                             Appellant               No. 2908 EDA 2016


                 Appeal from the PCRA Order August 16, 2016
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No.: CP-39-CR-0002803-1995


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 12, 2017

        Appellant, Darryl E. Dunst, appeals, pro se, from the order of August

16, 2016, dismissing, without a hearing, his second counseled petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Because the petition is untimely without an applicable exception, we

affirm.

        We take the underlying facts and procedural history in this matter

from this Court’s April 7, 1999 memorandum and our independent review of

the certified record.

        On May 14, 1996[,] Appellant [pleaded] guilty to criminal
        homicide regarding the September 12, 1995 shooting death of
        Dennis Keith Leslie[,] and attempted criminal homicide regarding
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*
    Retired Senior Judge assigned to the Superior Court.
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       the September 12, 1995 shooting of Donna Kremsner. Under
       the terms of the plea bargain four other counts were nol prossed
       and the trial court was to conduct a degree of guilt hearing to
       determine the classification and grade of the homicide. After the
       May 14-16, 1996 degree of guilt hearing . . . Appellant was
       found guilty of first-degree murder in the killing of Dennis Leslie.
       On June 21, 1996[,] Appellant was sentenced to life
       imprisonment for the first-degree murder of Mr. Leslie, and a
       consecutive [sentence of not less than ten nor more than twenty
       years] of imprisonment for the attempted murder of Ms.
       Kremsner. [Appellant did not file a direct appeal.]

             On May 12, 1997[,] Appellant filed a pro se PCRA petition.
       On May 1[5], 1997[,] [the PCRA court] appointed the Lehigh
       County Public Defender’s office to represent Appellant and
       recommended that an amended PCRA petition be filed. On June
       25, 1997[,] [PCRA] counsel filed an amended [] petition. A
       PCRA hearing was held on December 22, 1997[,] and on June
       25, 1998[,] the [PCRA] court denied the [] petition.

(Commonwealth v. Dunst, No. 2390 Philadelphia 1998, unpublished

memorandum at 1-2 (Pa. Super. filed Apr. 7, 1999)) (footnote omitted). On

April 7, 1999, this Court affirmed the denial of Appellant’s PCRA petition.

Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.

       On February 23, 2016, Appellant, acting pro se, filed the instant PCRA

petition seeking to vacate his sentence pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013).             The PCRA court appointed counsel on

February 26, 2016.           On April 26, 2016, PCRA counsel submitted a

Turner/Finley1 letter.

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1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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       On June 22, 2016, the PCRA court issued notice of its intent to dismiss

the petition pursuant to Pennsylvania Rule of Criminal Procedure 907(1), and

granted PCRA counsel’s request to withdraw. Appellant filed a response on

July 7, 2016. On August 16, 2016, the PCRA court dismissed the petition as

untimely. The instant, timely appeal followed.2

       On appeal, Appellant raises the following question for our review:

       1. Whether the [PCRA c]ourt erred in finding [Appellant’s] PCRA
          [petition] was untimely where the United States Supreme
          Court in Montgomery v. Louisiana[, 136 S. Ct. 718 (2016)]
          held that any cases out of their Court that were substantive in
          nature were retroactively applicable to all the [s]tates and in
          so doing caused [Alleyne] to become retroactively applicable
          to [Appellant?]

(Appellant’s Brief, at vii).

       Our standard of review for an order denying PCRA relief is well-settled:

             This Court’s standard of review regarding a PCRA court’s
       order is whether the determination of the PCRA court is
       supported by the evidence of record and is free of legal error.
       Great deference is granted to the findings of the PCRA court, and
       these findings will not be disturbed unless they have no support
       in the certified record. . . .

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

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2
   The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). Nonetheless, Appellant
filed one on August 26, 2016, together with his notice of appeal. See id.
On October 24, 2016, the PCRA court filed an opinion. See Pa.R.A.P.
1925(a).




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trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

      Here, Appellant filed his PCRA petition on February 23, 2016.        The

PCRA provides that “[a]ny petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the date the

judgment becomes final[.]”        42 Pa.C.S.A. § 9545(b)(1).       Appellant’s

judgment of sentence as to these matters became final on July 23, 1996,

thirty days after the judgment of sentence was entered and the time for

filing a direct appeal expired.   See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P.

903(a). Because Appellant did not file his current petition until February 23,

2016, the petition is facially untimely.    See 42 Pa.C.S.A. § 9545(b)(1).

Thus, he must plead and prove that he falls under one of the exceptions at

Section 9545(b) of the PCRA. See id.

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

            (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
      this section and has been held by that court to apply
      retroactively.

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Id. at § 9545(b)(1)(i)-(iii).    Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”                Id. at § 9545(b)(2).        The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).

      In the instant matter, Appellant appears to contend that his petition is

timely under Section 9545(b)(1)(iii), specifically that the United States

Supreme Court’s decision in Alleyne, supra renders his sentence illegal.

(See Appellant’s Brief, at 1-4). While Appellant acknowledges that our Court

has not applied Alleyne retroactively to cases on collateral review, he

contends that the U.S. Supreme Court’s decision in Montgomery, supra

mandates that we do so. (See id.). We disagree.

      Initially, we note that the fact that Appellant challenges the legality of

his   sentence   does   not     allow   him    to   evade   the   PCRA’s   timeliness

requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the

Pennsylvania Supreme Court rejected this contention.               The Fahy Court

stated, “[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.” Id. at 223 (citation omitted). Thus, Appellant cannot




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elude the PCRA’s timeliness requirements based on a claim of an illegal

sentence. See id.

       Moreover, “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.          Further, in a decision that post-dates

Montgomery,3 our Supreme Court has unequivocally held that Alleyne

does not apply retroactively to cases pending on collateral review.          See

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

       Here, Appellant was sentenced in 1996.          His judgment of sentence

became final in 1996. Thus, this matter is clearly on collateral review, and

his PCRA petition is facially untimely.          Because Alleyne does not apply

retroactively to cases on collateral review, it cannot afford Appellant relief.

See Washington, supra at 820; see also Commonwealth v. Riggle, 119

A.3d 1058, 1064 (Pa. Super. 2015); Commonwealth v. Miller, 102 A.3d

988, 995 (Pa. Super. 2014).



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3
  Appellant does not point to any cases that have held that the decision in
Montgomery renders Alleyne retroactive to cases on collateral review.
(See Appellant’s Brief, at 1-4).



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     Thus, Appellant’s PCRA petition is untimely with no statutory exception

to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly,

we affirm the order of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2017




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