J-A21026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GERALD BURNS                             :
                                          :
                    Appellant             :   No. 2171 EDA 2017

                  Appeal from the PCRA Order June 2, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0707783-2000,
                          CP-51-CR-0707793-2000


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 26, 2018

       Appellant, Gerald Burns, appeals pro se from the order entered on June

2, 2017, dismissing his second petition for relief filed under the Post-

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

       A jury found Appellant guilty of one count of second-degree murder and

two counts each of robbery and criminal conspiracy. On May 3, 2001, the trial

court sentenced Appellant to serve a term of life in prison for the murder

conviction and concurrent terms of imprisonment for the two criminal

conspiracy convictions and for one of the robbery convictions. We affirmed

Appellant’s judgment of sentence on December 26, 2002. Commonwealth

v. Burns, 817 A.2d 1174 (Pa. Super. 2002) (unpublished memorandum) at

1-6.   On November 10, 2005, following the nunc pro tunc restoration of

Appellant’s right to file a petition for allowance of appeal to the Pennsylvania
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Supreme Court, the Supreme Court denied Appellant’s petition for allowance

of appeal. Commonwealth v. Burns, 887 A.2d 1239 (Pa. 2005).

      Appellant filed his first PCRA petition on January 6, 2006 and the PCRA

court appointed counsel to represent Appellant. On February 27, 2009, the

PCRA court dismissed Appellant’s petition, we affirmed the PCRA court’s order

on July 13, 2010, and the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal on December 28, 2010. Commonwealth v.

Burns, 6 A.3d 558 (Pa. Super. 2010) (unpublished memorandum) at 1-12,

appeal denied, 14 A.3d 823 (Pa. 2010).

      On March 25, 2016, Appellant filed the current petition, which

constitutes Appellant’s second petition for post-conviction collateral relief.

Within the petition, Appellant claimed that, in Montgomery v. Louisiana,

___ U.S. ___, 136 S.Ct. 718 (2016), the United States Supreme Court created

a new constitutional right that entitled him to relief. Appellant’s Second PCRA

Petition, 3/25/16, at 18. Specifically, Appellant claimed, in accordance with

Montgomery, his “sentence of a mandatory life-without-parole is a

disproportionate punishment for youth homicide offenders under the age of

25 as it is violative of the Eighth Amendment’s prohibition on cruel and unusual

punishment.” Id. Further, Appellant claimed that his mandatory minimum

sentence of life in prison is also illegal in light of the United States Supreme

Court’s ruling in Alleyne v. United States, 570 U.S. 99 (2013). Appellant’s

Second PCRA Petition, 3/25/16, at 2.




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      On April 10, 2017, the PCRA court issued Appellant notice, pursuant to

Pennsylvania Rule of Criminal Procedure 907, of its intent to dismiss

Appellant’s petition in 20 days, without holding a hearing. PCRA Court Order,

4/10/17, at 1; Pa.R.Crim.P. 907(1). Appellant responded to the PCRA court’s

notice and repeated his claim that Montgomery provided him with an avenue

for relief. See Appellant’s Response to the Rule 907 Notice, 4/25/17, at 1-

10.

      The PCRA court finally dismissed Appellant’s PCRA petition on June 5,

2017 and Appellant filed a timely notice of appeal. On July 6, 2017, the PCRA

court ordered Appellant to file and serve a concise statement of errors

complained on appeal, pursuant to Pennsylvania Rule of Appellate Procedure

1925(b). The PCRA court ordered Appellant to file the Rule 1925(b) statement

within 21 days – or, on or before July 27, 2017. Trial Court Order, 7/6/17, at

1. Appellant did not comply with the PCRA court’s order and Appellant did not

file his Rule 1925(b) statement until January 17, 2018, which made

Appellant’s Rule 1925(b) statement untimely by 174 days.           Appellant’s

Untimely Rule 1925(b) Statement, 1/17/18, at 1-3.

      The PCRA court filed an opinion and, within this opinion, the PCRA court

declared that all of Appellant’s claims on appeal must be deemed waived, as

Appellant failed to comply with the Rule 1925(b) order. PCRA Court Opinion,

1/4/18, at 1-3.   We agree with the PCRA court and conclude that, since

Appellant failed to comply with the PCRA court’s Rule 1925(b) order, Appellant

waived all of his claims on appeal. Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not

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included in the [Rule 1925(b) s]tatement ... are waived”); Commonwealth

v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“in order to preserve their claims

for appellate review, appellants must comply whenever the trial court orders

them to file a statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will

be waived”) (internal citations, quotations, and corrections omitted) (some

internal capitalization omitted).

      Further, even if Appellant had not waived his claims on appeal, we would

nevertheless affirm the dismissal of Appellant’s patently untimely, serial PCRA

petition.

      “As a general proposition, we review a denial of PCRA relief to determine

whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).

      Before this Court can address the substance of Appellant’s claims, we

must determine if this petition is timely.

            [The PCRA requires] a petitioner to file any PCRA petition
            within one year of the date the judgment of sentence
            becomes final. A judgment of sentence becomes final at the
            conclusion of direct review . . . or at the expiration of time
            for seeking review.

                                          ...

            However, an untimely petition may be received when the
            petition alleges, and the petitioner proves, that any of the
            three limited exceptions to the time for filing the petition, set
            forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
            A petition invoking one of these exceptions must be filed
            within [60] days of the date the claim could first have been
            presented. In order to be entitled to the exceptions to the

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        PCRA’s one-year filing deadline, the petitioner must plead
        and prove specific facts that demonstrate his claim was raised
        within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some internal

citations omitted) (internal quotations omitted).

      In the present case, the PCRA court found Appellant’s petition to be

untimely filed.   PCRA Court Order, 6/5/17, at 1.       We agree.    Appellant’s

judgment of sentence became final at the end of the day on February 8, 2006,

which was 90 days after the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal and Appellant’s time for filing a petition for a

writ of certiorari with the United States Supreme Court expired. See U.S.

Sup. Ct. R. 13.1 (allowing 90 days to file a petition for writ of certiorari with

the United States Supreme Court); 42 Pa.C.S.A. § 9545(b)(3).          The PCRA

explicitly requires that a petition be filed “within one year of the date the

judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1).         Appellant then had

until February 8, 2007 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b).

As Appellant did not file his current petition until March 25, 2016, the current

petition is facially untimely and the burden thus fell upon Appellant to plead

and prove that one of the enumerated exceptions to the one-year time-bar

applied to his case.   See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.

Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a

statutory exception to the one-year time-bar, the PCRA demands that the

petitioner properly plead all required elements of the relied-upon exception).


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     Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

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

                                     ...

           (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.

                                     ...

        (2) Any petition invoking an exception provided in paragraph
        (1) shall be filed within 60 days of the date the claim could
        have been presented.

42 Pa.C.S.A. § 9545(b).

     As our Supreme Court explained:

        Subsection (iii) of Section 9545(b)(1) has two requirements.
        First, it provides that 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
        provided in this section. Second, it provides that the right
        “has been held” by “that court” to apply retroactively. Thus,
        a petitioner must prove that there is a “new” constitutional
        right and that the right “has been held” by that court to apply
        retroactively. The language “has been held” is in the past
        tense. These words mean that the action has already
        occurred, i.e., “that court” has already held the new
        constitutional right to be retroactive to cases on collateral
        review. By employing the past tense in writing this provision,
        the legislature clearly intended that the right was already
        recognized at the time the petition was filed.




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Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), quoting

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (internal

corrections omitted). Moreover, since the plain statutory language of section

9545 demands that the PCRA petition “allege” all elements of the statutory

exception, it is clear that – to properly invoke the “newly recognized

constitutional right” exception – the petitioner must plead each of the above-

stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

      Within Appellant’s second PCRA petition, Appellant claims that his

sentence is illegal and unconstitutional and subject to correction based on the

holding of Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016).

See Appellant’s Second PCRA Petition, 3/25/16, at 18. Appellant’s claim fails

because Montgomery concerned the retroactive application of Miller v.

Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) – and Miller held that the

Eighth Amendment prohibited mandatory life sentences without parole for

juveniles convicted of a homicide offense. See Montgomery, 136 S.Ct. at

725. In this case, Appellant was not a juvenile when he was convicted of

murder. See Appellant’s Second PCRA Petition, 3/25/16, at 18. Thus, neither

Montgomery nor Miller applies to the case at bar.

      Further, any claim under Alleyne immediately fails, as Appellant did not

raise his Alleyne claim “within 60 days of the date the claim could have been




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presented.”     42 Pa.C.S.A. § 9545(b)(2).1      Rather, the first time Appellant

raised his Alleyne claim was in his March 25, 2016 PCRA petition – which was

over two years after the United States Supreme Court decided Alleyne.2

Thus, Appellant failed to properly plead the newly-recognized constitutional

right exception to the PCRA’s one-year time-bar. See Commonwealth v.

Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (“[w]ith regard to [the

newly-]recognized constitutional right [exception], . . . the [60-]day period

begins to run upon the date of the underlying judicial decision”).

        Since Appellant did not attempt to plead any other exception to the

time-bar, we conclude that Appellant’s petition is time-barred and that our

“courts are without jurisdiction to offer [Appellant] any form of relief.”3
____________________________________________


1 Moreover, neither the United States Supreme Court nor our Supreme Court
has held that Alleyne applies retroactively to cases on collateral review.
Indeed, in Commonwealth v. Washington, the Pennsylvania Supreme
Court expressly held that “Alleyne does not apply retroactively to cases
pending on collateral review.” Commonwealth v. Washington, 142 A.3d
810, 820 (Pa. 2016). As such, for this independent reason, Alleyne does not
satisfy the newly-recognized constitutional right exception set forth at
§ 9545(b)(1)(iii). Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014) (“This Court has recognized that a new rule of constitutional law is
applied retroactively to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically holds it to be retroactively
applicable to those cases”).

2   The United States Supreme Court decided Alleyne on June 17, 2013.

3 To the extent Appellant claims that his illegal sentencing claim is non-
waivable, we note that, in Commonwealth v. Fahy, our Supreme Court held:
“[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.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (emphasis added).

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Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

Therefore, we affirm the PCRA court’s order dismissing Appellant’s second

PCRA petition without a hearing.

     Order affirmed. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/18




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