J-S74036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARTIN TISDALL                             :
                                               :
                       Appellant               :   No. 2788 EDA 2017

              Appeal from the PCRA Order Entered August 8, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0308871-1998


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 21, 2019

       Martin Tisdall appeals from the denial of his request for relief under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Tisdall

maintains that the trial court should have granted his PCRA petition based on

the holding in Montgomery v. Louisiana, 136 S.Ct. 718 (2016). We affirm.

       On November 22, 1999, Tisdall pled guilty to two counts of robbery,

criminal conspiracy, and possessing an instrument of crime. On March 1,

2000, the trial court sentenced him to 32½ to 65 years’ incarceration. Tisdall

filed a post sentence motion and moved to withdraw his guilty plea. The trial

court denied both motions. Tisdall did not seek appellate review.

       Tisdall filed a pro se PCRA petition on January 22, 2013. The trial court

appointed counsel who filed a Turner/Finley1 letter maintaining that Tisdall’s
____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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petition was meritless. The trial court dismissed the petition as untimely and

this Court affirmed. See Commonwealth v. Tisdall, 131 A.3d 105

(Pa.Super. 2015) (unpublished memorandum), appeal denied, 131 A.3d 491

(Pa. 2016). Tisdall filed the instant PCRA petition on March 25, 2016, and

supplemented the petition on May 26, 2017. However, the trial court did not

grant leave to amend the petition. The trial court issued notice of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Tisdall

responded to the Rule 907 notice and the trial court dismissed the petition.

This timely appeal followed.

      Tisdall raises the following issues:

      I.     Did the PCRA court err under Pa.R.Crim.P. 907, with its
             dismissal of [Tisdall’s] post-conviction petition, in the
             absence of stating the reason for dismissal of [Tisdall’s]
             issue concerning the trial court’s violation of due process
             rights to hearing on competence?

      II.    Did the PCRA court err under Pa.R.Crim.P. 907, with its
             dismissal of [Tisdall’s] two (2) separate issues that failed to
             be addressed in (a) its 907 intent to dismiss, and (b) its final
             order of dismissal?

      III.   Did the PCRA court err under Pa.R.Crim.P. 907, with its
             dismissal of [Tisdall’s] post-conviction petition, in the
             absence of addressing [Tisdall’s] supplemental amended
             petition and [Commonwealth v.] Burton, [158 A.3d 618
             (Pa. 2017)] claims thereof?

Tisdall’s Br. at 4 (suggested answers omitted).

      “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.” Commonwealth v. Williams, 196 A.3d 1021,


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1026-27 (Pa. 2018) (quoting Commonwealth v. Washington, 927 A.2d

586, 593 (Pa. 2007)). “The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we apply a de

novo    standard   of   review   to   the   PCRA   court’s   legal   conclusions.”

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).

       Tisdall’s petition is untimely and we therefore do not address the merits

of his PCRA petition. See Commonwealth v. Smith, 194 A.3d 126, 132

(Pa.Super. 2018) (“[W]e must begin by addressing the timeliness of

Appellant’s petition, because the PCRA’s time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition”). A petitioner seeking post-conviction relief must file a

petition within one year of the petitioner’s judgment of sentence becoming

final. Id.; see also 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 at the expiration of time for seeking the review.” 42 Pa.C.S.A.

§ 9545(b)(3). A court does not have jurisdiction to entertain a petition filed

after the one-year time-bar unless the petitioner pleads and proves one of the

time-bar exceptions. The exceptions include:


       (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;


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       (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). A petitioner claiming one of these

exceptions must file the petition “within 60 days of the date the claim could

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

       Here, Tisdall’s judgment of sentence became final on March 31, 2000,

when the time to file a direct appeal to this Court expired. See Pa.R.A.P.

903(a). Therefore, Tisdall had until March 31, 2001, to file a timely PCRA

petition. Thus, the instant petition filed on March 25, 2016, is patently

untimely unless Tisdall pleads and proves at least one of the time-bar

exceptions.

       In his petition, Tisdall claims relief under the third exception, i.e. a

constitutional right that applies retroactively, citing to Montgomery.3 See
____________________________________________


2The Pennsylvania Legislature amended Section 9545(b)(2) on December 24,
2018, to extend the time of filing to one year. However, the amendment
applies only to claims raised one year prior to the amendment or thereafter.
See 42 Pa.C.S.A. § 9545(b)(2). Here, the amendment does not apply since
Tisdall filed his petition more than a year before the amendment.

3 We do not review the claims raised in Tisdall’s supplemental petition because
the PCRA court did not grant leave for him to supplement his original petition.
See Commonwealth v. Mason, 130 A.3d 601, 621 n. 19 (Pa. 2015) (stating
that amendment to PCRA petition “is permitted only by the direction or leave
of the PCRA court”) (quoting Commonwealth v. Porter, 35 A.3d 4, 12 (Pa.
2012)).

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PCRA Petition, filed 3/25/16, at 1. The Court in Montgomery held that Miller

v. Alabama, 567 U.S. 460 (2012), which held that it was unconstitutional to

sentence a juvenile to mandatory life without parole, “announced a

substantive   rule   that   is   retroactive   in   cases   on   collateral   review.”

Montgomery, 136 S.Ct. at 732. Montgomery does not warrant relief for

Tisdall for two reasons. First, Tisdall was not a juvenile but in fact was 36

years old when he committed the above referenced crimes. Second, the trial

court did not sentence him to life without parole. Therefore, he fails to plead

and prove any of the time-bar exceptions. The trial court did not abuse its

discretion in denying his untimely petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/19




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