J-S62032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                    Appellee                :
                                            :
            v.                              :
                                            :
JONATHAN R. MITCHELL, III,                  :
                                            :
                    Appellant               :   No. 2048 MDA 2016

                   Appeal from the PCRA Order November 10, 2016,
                  in the Court of Common Pleas of Lycoming County,
                 Criminal Division, at No(s): CP-41-CR-0002025-2005

BEFORE:          STABILE, MOULTON, and STRASSBURGER,* JJ.

JUDGMENT ORDER BY STRASSBURGER, J.:                FILED OCTOBER 23, 2017

     Jonathan R. Mitchell, III (Appellant) appeals pro se from the November

10, 2016 order that dismissed his petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     In 2007, Appellant was convicted of criminal homicide and sentenced

to a term of life imprisonment. This Court affirmed his judgment of sentence

and the Pennsylvania Supreme Court denied his petition for allowance of

appeal. See Commonwealth v. Mitchell, 988 A.2d 725 (Pa. Super. 2009)

(unpublished memorandum), appeal denied, 993 A.2d 900 (Pa. 2010).

Appellant’s first and second PCRA petitions resulted in no relief. On May 6,

2016, Appellant pro se filed a third PCRA petition. On November 10, 2016,

the PCRA court dismissed that petition as untimely filed. This appeal

followed.


*Retired Senior Judge assigned to the Superior Court.
J-S62032-17


     Before we can examine the substantive claims Appellant raises on

appeal, we must determine whether the filing of his PCRA petition was

timely. See, e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa.

Super. 2013).

     Generally, a PCRA petition must be filed within one year from the
     date a judgment becomes final. There are three exceptions to
     this time requirement: (1) interference by government officials
     in the presentation of the claim; (2) newly discovered facts; and
     (3) an after-recognized constitutional right. When a petitioner
     alleges and proves that one of these exceptions is met, the
     petition will be considered timely. A PCRA petition invoking one
     of these exceptions must be filed within 60 days of the date the
     claims could have been presented. The timeliness requirements
     of the PCRA are jurisdictional in nature and, accordingly, a PCRA
     court cannot hear untimely petitions.

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(citations and quotation marks omitted).

     The instant petition, filed in May of 2016, is patently untimely.

Appellant, referencing Alleyne v. United States, 133 S.Ct. 2151 (2013),1

and Montgomery v. Louisiana, 136 S.Ct. 718 (2016),2 alleges that his

petition meets the timeliness exception at 42 Pa.C.S. § 9545(b)(1)(iii)


1 “Alleyne held that any fact that, by law, increases the penalty for a crime
must be treated as an element of the offense, submitted to a jury, rather
than a judge, and found beyond a reasonable doubt.” Commonwealth v.
Washington, 142 A.3d 810, 812 (Pa. 2016) (citation omitted).
2In Miller v. Alabama, 132 S.Ct. 2455 (2012), the United States Supreme
Court held that mandatory life imprisonment without parole for defendants
under the age of 18 at the time of the offense violates the Eighth
Amendment to the United States Constitution. Montgomery held that
Miller applies retroactively to cases on state collateral review.
Montgomery, 136 S.Ct. at 732.

                                    -2-
J-S62032-17


(providing “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”). PCRA Petition, 5/6/2016, at 2-3.

However, our Supreme Court has held that Alleyne does not apply

retroactively     to   cases    on    collateral    review.     Commonwealth      v.

Washington, 142 A.3d 810 (Pa. 2016). Moreover, as Appellant was 22

years old at the        time    the   crime   was committed,         Montgomery   is

inapplicable.

      Thus, because Appellant did not plead facts that would establish an

exception to the PCRA’s timeliness requirements, the PCRA court properly

dismissed       Appellant’s    petition   without     holding    a    hearing.   See

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming

dismissal of PCRA petition without a hearing because the appellant failed to

meet burden of establishing timeliness exception).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2017




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