J-S35039-17


                                  2017 PA Super 181

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    HERMAN T. WOODS                            :
                                               :
                      Appellant                :   No. 1946 WDA 2016

                Appeal from the PCRA Order November 4, 2016
                In the Court of Common Pleas of Mercer County
               Criminal Division at No(s): No. 523 Criminal 1980


BEFORE:      LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED JUNE 12, 2017

        Appellant Herman T. Woods appeals the Order entered in the Court of

Common Pleas of Mercer County on November 4, 2016, dismissing as

untimely his serial petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 Because this petition is untimely without an applicable exception,

we affirm.

        Given our disposition, a detailed recitation of the facts is unnecessary

in this matter.     Appellant was convicted of second degree murder in 1981

following a jury trial. Appellant was eighteen years, thirty-six days old when

he committed the crime on November 22, 1980, as his date of birth was

October 17, 1962.        On October 28, 1981, Appellant was sentenced to a
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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
J-S35039-17



mandatory term of life imprisonment, and he filed a timely notice of appeal

the next day.2       On September 2, 1983, this Court affirmed Appellant’s

judgment of sentence.          Commonwealth v. Woods, Jr., 466 A.2d 709

(Pa.Super. 1983) (unpublished memorandum). The Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on January 18,

1984. The conclusion of direct review was May 14, 1984, when the United

States Supreme Court denied his petition for writ of certiorari. Woods v.

Pennsylvania, 466 U.S. 977, 104 S.Ct. 2359, 80 L.Ed.2d 831 (1984).

       Because Appellant’s judgment of sentence became final prior to the

1995 amendments to the PCRA, which added certain time restrictions,

Appellant was permitted to file his first PCRA petition by January 16, 1997.

See Commonwealth v. Peterkin, 554 Pa. 547, 554-55, 722 A.2d 638, 641

(1998) (holding where conviction became final on or before effective date of
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2
   The trial court stated on the record it would ensure Appellant received
credit for the 341 days he had spent in prison as “it was [the trial court’s]
understanding that Appellant may, after a certain number of years, be
eligible for parole, and therefore, that information should be available in his
record.”     N.T. Sentencing, 10/28/81, at 2 (unnumbered).           However,
Pennsylvania’s sentencing scheme mandates that a person who has been
convicted of murder of the second degree shall be sentenced to a term of life
imprisonment. 18 Pa.C.S.A. § 1102(b). The Prisons and Parole Code
provides that the Parole Board may exercise its discretion to grant parole
“only after[ ] the expiration of the minimum term of imprisonment fixed by
the court in its sentence or by the Board of Pardons in a sentence which has
been reduced by commutation.” 61 Pa.C.S. § 6137(3). Notwithstanding, the
Parole Board may not release on parole any inmate “condemned to death or
serving life imprisonment.” 61 Pa.C.S. § 6137(a)(1).




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Act, to be timely PCRA petition must be filed within one year of effective

date and must be first petition to be eligible for one-year grace period).

Notwithstanding, Appellant did not file his first PCRA petition until July 27,

1998, making it untimely.    Counsel was appointed and later filed a petition

to withdraw wherein he averred private counsel had entered his appearance

for Appellant in the action. In an Order entered on October 13, 1998, the

trial court granted appointed counsel’s petition to withdraw; however, the

official docket entries do not indicate that privately retained counsel took

any further action regarding the PCRA petition, nor do they contain an Order

entered by the trial court on the merits thereof.

      On August 27, 2012, Appellant filed a second PCRA petition pro se

wherein he generally alleged ineffectiveness of prior counsel and that

“mandatory life without parole violates the Eighth Amendment Art 5 of the

Universal Declaration of Human Rights as well as Art. I #3 of the

Pennsylvania Constitution for someone under the age of 25.” See Motion for

Post Conviction Collateral Relief, filed 8/27/12, at 3. Counsel was appointed

on September 12, 2012, and in an Order entered on October 16, 2012, the

trial court directed counsel to file an Amended PCRA Petition and/or a no-

merit letter on or before November 1, 2012, although an amended petition

was not forthcoming. Instead, on July 13, 2015, Appellant filed pro se his

“Motion for Leave to Amend Petition for Habeas Corpus Relief under Article I,

Sections 5, 6 & 14 of the Pennsylvania Constitution and for Post Conviction


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Relief Under the Post Conviction Relief Act et Seq.” In its Order entered on

July 16, 2015, the trial court denied the same without prejudice because

Appellant was represented by counsel.

        The trial court also scheduled a status conference to be held on August

17, 2015, to address Appellant’s Habeas Corpus petition and the status of

his previously filed PCRA petition. In its Order entered on that date following

the conference, the trial court directed PCRA counsel to file either a motion

to withdraw as counsel or a motion to schedule an evidentiary hearing

and/or argument on the pending PCRA petition on or before October 15,

2015.

        On September 10, 2015, counsel filed a motion to withdraw along with

a “no merit letter” pursuant to Commonwealth v. Turner, 518 Pa. 491,

544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988). Therein, he noted Appellant was challenging the legality

of his sentence based upon the United States Supreme Court’s ruling in

Miller v. Alabama, ___ U.S. ____, 132 S.Ct. 2455, 183 L.Ed. 2d 407

(2012) wherein the Court had held that mandatory sentences of life

imprisonment without parole are unconstitutional for juvenile offenders. In

its September 11, 2015, Order, the trial court granted counsel’s petition to

withdraw and dismissed Appellant’s PCRA petition without a hearing.        The

trial court further indicated Appellant may proceed pro se or with the

assistance privately retained counsel.


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       On February 17, 2016, Appellant again filed a petition of Habeas

Corpus relief pro se challenging his conviction under the United States

Supreme Court’s recent decision in Montgomery v. Louisiana, ___ U.S.

____, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (filed on January 25, 2016, as

revised on January 27, 2016) wherein the Court held the application of

Miller is retroactive. In its Order entered on February 22, 2016, the trial

court denied Appellant’s Petition for Writ of Habeas Corpus Relief and in

doing so found, inter alia, that the retroactive application of the Supreme

Court’s holding in Miller which pertained to juvenile offenders is inapplicable

to Appellant because he was eighteen years old at the time of the murder.

       On March 18, 2016, Appellant filed pro se the PCRA petition presently

before us. Therein, Appellant again averred he was entitled to relief under

Montgomery and Miller, supra, as well as under Alleyne v. United

States, ___U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and their

progeny.3 The trial court appointed counsel to represent Appellant in an

Order entered on April 19, 2016;4 notwithstanding, Appellant filed a pro se

supplemental PCRA petition on May 23, 2016. In its Order entered on July
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3
  In Alleyne, the United States Supreme Court held that any fact which
increases a mandatory minimum sentence is an “element” of the crime, and
not a “sentencing factor,” and, thus, must be submitted to the jury pursuant
to the Sixth Amendment to the United States Constitution.
4
  We note that Appellant had a rule-based right to counsel for his initial
PCRA petition only. Commonwealth v. Figueroa, 29 A.3d 1177, 1180
(Pa.Super. 2011).




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1, 2016, the trial court directed counsel to file either an amended PCRA

petition, a “no-merit letter” or a motion requesting an evidentiary hearing on

or before August 31, 2016.

       Counsel filed a “no-merit letter” on September 27, 2016, and in its

Order entered on that same date, the trial court granted counsel leave to

withdraw and Appellant leave to proceed pro se. In the meantime, Appellant

had filed another supplemental PCRA petition. On October 31, 2016,

Appellant filed his “Response and Answer to PCRA Court’s Notice and Order

to Dismiss Pro Se Petition for Post Conviction Relief Pursuant to the Post

Conviction Relief Act, 42 Pa.C.S. § 9542.” On November 7, 2016, the trial

court denied Appellant’s PCRA petition and advised him of his right to file an

appeal with this Court within thirty (30) days. Appellant filed his notice of

appeal on November 28, 2016, along with his “Statement of Questions

Raised on Appeal.”5

____________________________________________


5
  In its Opinion filed pursuant to Pa.R.A.P. 1925(a) the trial court indicates
that Appellant’s Notice of Appeal was untimely filed on December 19, 2016,
and should be dismissed for that reason. In addition, the Commonwealth
argues this Court should quash the instant appeal because Appellant filed his
notice of appeal outside of the appropriate appeal period. Brief for Appellee
at 2. Pa.R.A.P. 903(a) indicates that a notice of appeal shall be filed within
thirty days after the entry of the order from which the appeal is taken.
Appellant is incarcerated and his notice of appeal was filed pro se. While
Appellant’s notice of appeal is time-stamped December 19, 2016, he dated it
November 28, 2016, which falls within thirty days after the entry of the trial
court’s November 7, 2016, Order. In addition, there is no indication on the
docket that the PCRA court complied fully with Pa.R.Crim.P. 907(4) which
states that: “When the petition is dismissed without a hearing, the judge
(Footnote Continued Next Page)


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      In his brief, Appellant presents the following three questions for this

Court’s review:

      A.    Does not the decision of the Pennsylvania Supreme Court
      in Commonwealth v. Vasquez, 744 A.2d 1284 (Pa. 2000),[6]
      which held that non-compliance with Pa.R.Crim.Proc., 42
      Pa.C.S.A. § 1410 and, 42 Pa.C.S.A. § 5505 creates no bar to
      reviewing the application by the trial court of 42 Pa.C.S. § 9714?

      B.     Does not the recent decision of the United States Supreme
      Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), and its
      progeny, Commonwealth v. Newman, 99 A.3d 86 (2014),
      including Commonwealth v. Watley 81 A.3d 108, 117 (Pa. Super.
      2013), Commonwealth v. Valentine, 2014 Pa. Syuper 220, 2014
      WL-4942256,       2014     Pa.Super.     Lexis     3420     (2014);
      Commonwealth v. [Hopkins,] 117 A.3d 247 (Pa. 2015), and
      Commonwealth v. Wolfe, 121 A.3d 433 (Pa. 2016), constitute
      illegal sentencing claims that any fact that, by law, increases the
      penalty for a crime is an “element” that must be submitted to
      the jury and found beyond a reasonable doubt?
                       _______________________
(Footnote Continued)

promptly shall issue an order to that effect and shall advise the defendant by
certified mail, return receipt requested, of the right to appeal from the final
order disposing of the petition and of the time limits within which the appeal
must be filed.” As such, we deem Appellant’s notice of appeal to be timely
filed on November 28, 2016, under the “prisoner mailbox rule.” See
Commonwealth v. Jones, 549 Pa. 58, 64, 700 A.2d 423, 426 (1997)
(pursuant to the “prisoner mailbox rule,” a pro se filing is deemed filed on
the date the prisoner deposits the appeal with prison authorities and/or
places it in the prison mailbox, though the appeal is actually received by the
court after the deadline for filing the appeal).
6
   The correct citation for this case is Commonwealth v. Vasquez, 560 Pa.
381, 744 A.2d 1280 (2000). Therein, the Pennsylvania Supreme Court
considered whether a trial court had the authority to add a mandatory fine
to a sentence that it had neglected to impose initially. In doing so, the Court
stated that “[t]rial courts never relinquish their jurisdiction to correct an
illegal sentence.” Id. at 381, 744 A.2d at 1284 (2000).




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         C.    Does not the PCRA Court’s Answer fail to address
         [Appellant’s] illegal sentencing claims that non-compliance with
         Pa.R.Crim.Proc’s create no bar to reviewing the application by
         the trial court in any meaningful way, for it also fails to even
         mention the applicability of 42 Pa.C.S. 9542 action established in
         42 Pa.C.S. pt. VIII, ch. 95, subch. B shall be the sole means of
         obtaining collateral relief and encompasses all other common law
         and statutory remedies for the same purpose that exist when
         subch. B takes effect, before denying the PCRA motion as
         without merit and untimely filed?

Brief for Appellant at 1-3.

         When reviewing the propriety of an order denying PCRA relief, this

Court is limited to a determination of whether the evidence of record

supports the PCRA court’s conclusions and whether its ruling is free of legal

error.     Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178,

185 (2016).      This Court will not disturb the PCRA court’s findings unless

there is no support for them in the certified record.       Commonwealth v.

Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).

         At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and

where a petitioner raises questions of law, our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d

118, 121 (Pa.Super. 2014).

         All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory

exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The



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J-S35039-17


petitioner bears the burden to plead and prove an applicable statutory

exception.   If the petition is untimely and the petitioner has not pled and

proven an exception, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.   Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.

2013).

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (b) Time for filing petition.--

      (1)    Any petition under this subchapter, including a second or
             subsequent petition, shall be filed within one year of the
             date the judgment of sentence becomes final, unless the
             petition alleges and the petitioner 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.


42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).   In addition, any petition attempting to

invoke one of these exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      As noted previously, Appellant was sentenced on October 28, 1981,

and the United States Supreme Court denied his petition for writ of certiorari


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on May 14, 1984, at which time his judgment of sentence became final. The

1995 amendments to the PCRA provided for a “transitional, statutory grace

period” of one year, applicable to first petitions in cases where the judgment

of sentence became final before the January 16, 1996, effective date of the

1995 amendments. Commonwealth v. Baroni, 573 Pa. 589, 827 A.2d 419,

420 n. 1 (2003). Thus, Appellant’s first PCRA petition would have been

deemed to be timely if it had been filed no later than January 16, 1997. See

Commonwealth v. Fenati, 561 Pa. 106, 109, 748 A.2d 205, 206-07

(2000). Since the instant petition was not filed until March 18, 2016, it is

patently untimely and the burden fell upon Appellant to plead and prove that

one of the enumerated exceptions to the one year time-bar.             See 42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286

(Pa.Super. 2008) (to invoke a statutory exception to the PCRA time-bar, a

petitioner must properly plead and prove all required elements of the

exception).

      Appellant’s somewhat disjointed arguments, which fail to line up neatly

with his Statement of Questions Involved, when liberally construed are

twofold. First, Appellant essentially maintains the instant matter “falls within

the ‘narrow class of cases considered to implicate illegal sentences’” in that

his sentence had been illegal from its inception and a trial court never

relinquishes jurisdiction over one’s challenge to the legality of his sentence.

Appellant reasons that because his claim is cognizable under the PCRA, the


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trial court erred in dismissing his petition in light of Vasquez, supra, in that

it had “no discretion to deviate its sentence from that which is defined by

statute.” Brief for Appellant at 3-6 (citations omitted).

      Appellant’s claim is in contravention to well-established precedent, for

a challenge to the legality of one’s sentence does not allow him to evade the

PCRA’s timeliness requirements.     In fact, in Commonwealth v. Fahy, 558

Pa. 313, 737 A.2d 214 (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 331, 737 A.2d at

223 (citation omitted). Thus, Appellant cannot elude the PCRA's timeliness

requirements based on a claim of an illegal sentence. See id.           Indeed,

despite his arguments to the contrary, Appellant also concedes that “the

PCRA statute by its own terms provides relief from any illegal sentence if

such a claim is raised in a timely PCRA petition.” Brief for Appellant at 14.

      In his final two questions presented, Appellant attempts to invoke 42

Pa.C.S.A. § 9545(b)(1)(iii), the “newly recognized constitutional right”

exception to the PCRA time-bar.       First, Appellant contends that Alleyne,

supra and its progeny rendered unconstitutional statutes that require

mandatory     minimum    sentences.       However,   in     Commonwealth        v.

Washington, ___ Pa. ____, 142 A.3d 810 (2016), the Pennsylvania

Supreme Court addressed a situation in which the defendant raised an


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Alleyne claim in a timely PCRA petition, but his judgment of sentence had

become final prior to the Alleyne decision. The Washington Court held that

“Alleyne does not apply retroactively to cases pending on collateral review,

and that [a]ppellant’s judgment of sentence, therefore, is not illegal on

account of Alleyne.”     Id. at ___, 142 A.3d at 815.   In addition, Alleyne

was decided in 2013, and Appellant did not file the instant PCRA petition

until March 18, 2016.      Accordingly, Appellant failed to comply with 42

Pa.C.S.A. § 9545(b)(2) (stating “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented”).

      In addition, Appellant evokes the newly-recognized constitutional right

exception when averring his sentence of life imprisonment is illegal under

Montgomery, supra. In Montgomery, the United States Supreme Court

declared its prior holding in Miller, supra, constitutes a substantive rule of

constitutional law to which state collateral review courts were required as a

constitutional matter to give retroactive effect. Montgomery v. Louisiana,

___ U.S. at ____, 136 S.Ct. at 736, 193 L.Ed.2d at ___.    Appellant filed his

petition within sixty days after the Supreme Court decided Montgomery,

and the High Court held therein that the new rule of law announced in Miller




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applies retroactively to cases on collateral review.7 See Montgomery, ___

U.S. at ____, 136 S.Ct. at 732, 193 L.Ed.2d at ___.         Thus, if the right

announced in Miller applies to any of Appellant’s claims, the petition is

timely as to that specific claim. See Commonwealth v. Abdul–Salaam,

571 Pa. 219, 227, 812 A.2d 497, 501-02 (stating ruling regarding retroactive

application of new constitutional right must be made prior to filing of PCRA

petition); see also Commonwealth v. Porter, 613 Pa. 510, 526, 35 A.3d

4, 13-14 (2012) (provisions in 42 Pa.C.S.A. § 9545(b)(1), (2) relating to

PCRA’s time-bar exceptions are necessarily claim-specific given sixty-day

filing restriction and fact that the statute addresses “exceptional” claims).

However, we conclude that, since Appellant was over eighteen years old

when he committed the murder, Miller does not apply to his case.

        In Miller, the Supreme Court had held that “mandatory life without

parole for those under the age of 18 at the time of their crimes violated the

Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”

Miller v. Alabama, ___ U.S. at ____, 132 S.Ct. at 2460, 183 L.Ed.2d at

____.    However, while the Supreme Court’s holding in Miller set forth a

bright-line rule that mandatory sentences of life imprisonment without the
____________________________________________


7
  The United States Supreme Court decided Montgomery on January 25,
2016, and Appellant filed the current PCRA petition on March 18, 2016. In
Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this Court
held that the date upon which Montgomery had been decided is to be used
when calculating whether a petition is timely filed under the sixty-day rule of
42 Pa.C.S.A. § 9545(b)(2).



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possibility of parole are unconstitutional for juvenile offenders, it did not

prevent a trial court from imposing a life sentence upon an individual such

as Appellant who was over the age of eighteen at the time he committed the

offense. Therefore, the right recognized by Miller and held to be retroactive

in Montgomery does not provide Appellant a basis for relief from the PCRA

time-bar. See Miller, ___ U.S. at ____, 132 S. Ct. at 2469, ___ L.Ed.2d at

____ (holding “the Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for juvenile offenders.”)

See also Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013)

(holding Miller is not an exception under Section 9545(b)(1)(iii) to those

over   the    age   of   eighteen   at    the     time   crimes   were   committed);

Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (holding

the Miller decision applies only to defendants “under the age of 18 at the

time of their crimes” and not to a nineteen year old defendant convicted of

homicide who claimed he was a “technical juvenile” and relied on

neuroscientific theories pertaining to immature brain development to support

his claim).

       For the foregoing reasons, Appellant's PCRA petition is untimely, and

he has failed to plead and prove an exception to the statutory time-bar. The

PCRA court correctly determined it lacked jurisdiction to review the merits of

Appellant's petition and properly dismissed it, and we discern no other basis




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on which to disturb the PCRA court's dismissal of Appellant's petition as

untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




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