J-S72015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL DAVID FERNSLER

                            Appellant                  No. 858 MDA 2016


                   Appeal from the PCRA Order May 11, 2016
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0002434-2007


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED OCTOBER 06, 2016

        Appellant, Michael David Fernsler, appeals from the order entered in

the Lebanon County Court of Common Pleas, which denied his third petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinions, the PCRA court fully and correctly sets forth the

relevant facts and procedural history of this case.2 Therefore, we have no

reason to restate them.

        Appellant raises the following issues for our review:

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
2
  Nothing in the certified record on appeal indicates that the court ordered a
concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b),
or that Appellant filed one.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S72015-16


         WHETHER THE [PCRA] COURT ERRED IN FINDING
         [APPELLANT’S] PCRA AS UNTIMELY WHERE THE UNITED
         STATES SUPREME COURT IN MONTGOMERY V.
         LOUISIANA HELD THAT ANY CASES OUT OF THEIR
         COURT THAT WERE SUBSTANTIVE IN NATURE WERE
         RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN
         DOING SO CAUSED ALLEYNE V. U.S. TO BECOME
         RETROACTIVELY APPLICABLE TO [APPELLANT].

         WHETHER THE [PCRA] COURT ERRED IN FINDING
         [APPELLANT’S] PCRA AS UNTIMELY WHERE THE UNITED
         STATES SUPREME COURT IN MONTGOMERY V.
         LOUISIANA HELD THAT ANY CASES OUT OF THEIR
         COURT THAT WERE SUBSTANTIVE IN NATURE WERE
         RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN
         DOING SO CAUSED LAFLER V. COOPER, MISSOURI V.
         FRYE, FERRI V. ACKERMAN, AND STRICKLAND V.
         WASHINGTON TO BECOME RETROACTIVELY APPLICABLE
         TO [APPELLANT].

         WHETHER THE [PCRA] COURT ERRED IN FINDING
         [APPELLANT’S] PCRA AS UNTIMELY WHERE THE UNITED
         STATES SUPREME COURT IN MONTGOMERY V.
         LOUISIANA HELD THAT ANY CASES OUT OF THEIR
         COURT THAT WERE SUBSTANTIVE IN NATURE WERE
         RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN
         DOING SO CAUSED MIRANDA V. ARIZONA, MICHIGAN
         V. MOSLEY, ARIZONA V. ROBERSON, MINNICK V.
         MISSISSIPPI, EDWARDS V. ARIZONA TO BECOME
         RETROACTIVELY APPLICABLE TO [APPELLANT].

(Appellant’s Brief at vi).

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether     the   evidence    of   record    supports    the     court’s

determination     and   whether   its     decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

                                        -2-
J-S72015-16


findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).           We give no such

deference, however, to the court’s legal conclusions.   Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will

not be disturbed unless the certified record provides no support for the

findings.   Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.

2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right

to a PCRA hearing; a hearing is unnecessary where the PCRA court can

determine from the record that there are no genuine issues of material fact.

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008), appeal

denied, 598 Pa. 764, 956 A.2d 433 (2008).        The timeliness of a PCRA

petition is a jurisdictional requisite. Commonwealth v. Hackett, 598 Pa.

350, 956 A.2d 978 (2008).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Robert J.

Eby, we conclude Appellant’s issues merit no relief. The trial court opinions

comprehensively discuss and properly dispose of the questions presented.

(See PCRA Court Opinions, filed April 4, 2016 and May 11, 2016) (finding:

Appellant’s third PCRA petition was untimely and no timeliness exception

applied; all cases Appellant cited in attempt to invoke “new constitutional

right” exception were either inapplicable to his case, did not announce “new”

constitutional right, announced new right years before Appellant’s deadline


                                    -3-
J-S72015-16


to file timely PCRA petition expired, and/or related to claims Appellant

already litigated in previous PCRA petitions).           We agree with the court’s

assessment.

      Furthermore, neither the U.S. Supreme Court nor the Pennsylvania

Supreme Court has held that Alleyne v. U.S., ___ U.S. ___, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013), or its state progeny apply retroactively. See

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (holding that

even if Alleyne announced new constitutional right, neither our Supreme

Court nor United States Supreme Court has held that Alleyne applies

retroactively,   which   is   fatal   to   appellant’s   attempt   to   satisfy   “new

constitutional right” exception to timeliness requirements of PCRA).              See

also Commonwealth v. Washington, ___ A.3d ___, 2016 WL 3909088

(Pa. filed July 19, 2016) (holding Alleyne does not apply retroactively on

collateral review to challenge mandatory minimum sentence as “illegal”).

Additionally, the certified record makes clear Appellant was not subjected to

any mandatory minimum sentences. Therefore, Appellant’s petition remains

time barred; and the PCRA court lacked jurisdiction to review it.                 See

Hackett, supra. Accordingly, we affirm.

      Order affirmed.




                                           -4-
J-S72015-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




                          -5-
                                                                                                SCANN~
                                                                                 Circulated 09/20/2016 03:42 PM
                                                                                               \fJJHViAGE
      OR\G\NAL,                                                                 EtHEf(:D 2, Fl!...ED
                                                                                CLERK OF COURTS
                           IN THE COURT      OF         COMMON PLEAS              LEBM.J.HL PA


                                                          . ~··   . : """ ...




                                    CRIMINAL DIVISION




COMMONWEAL TH OF
PENNSYLVANIA
                                                         No. CP-38-CR-0002434-2007
v.
                                             .
                                             Ill •. •


                                             a'·
MICHAEL. D. FERNSLE:R.


                                     ORDER OF COURT




        AND NOW, to wit, this#             day of April, 2016, upon careful consideration of
Defendant's "Motion for Post Conviction Collateral Relief' and the Commonwealth's
Response thereto, the Defendant is hereby notified that .it is the inte~ntion of the Court to
dismiss his claim for relief without a hearing for the reasons set forth below:


1. The Defendant filed a Motion for for Post Conviction Collateral Relief on March 2,
     2016, arguing he is entitled to relief based upon the holding of the United States
     Supreme Court in Montgomery v. Louisiana.
2.   In response to a Rule issued by this Court, the· Commonwealthfiled a· response on
     March-14,   .2016 alleging that Defendant's motion is untimely, is a_ second or
     sulrniqcre-nt-p'etitiorr,and-seeks-to-relitigate-issues-previously-litigated~r-waived-.·----
3. A petition filed pursuant to the PCRA must be filed within one (1) year of the date that
   the judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at
   the conclusion of direct review or at the expiration of time for seeking the review.
   §9545(b)(3).


4. "The PCRA's timeliness requirements are jurisdictional in nature and must be strictly
construed; courts may not address the merits of the issues raised in a petition if it is not
timely filed." Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1267-68 (2004).

5. The Defendant was sentenced by this Court at the above action number on May 14,
2008. The Defendant had 30 days-until                June 13, 2008-- to appeal that judgment of
sentence to the Superior Court. He did not do so.


6. Defendant's Judgement of Sentence thus became final on June 13, 2008, and under
the one year time limitation prescribed by§ 9545(b)(1), he had until June 13, 2009 to file
for relief under the PCRA.


7. Defendant's Motion for Post Conviction Collateral Relief filed on March 2, 2016 is
therefore untimely.


8. 42 Pa.C.S. §9545(b) (1) provides for specific exceptions to the timeliness requirements
of the Act. To avail himself of one of these exceptions, the Defendant must plead and
prove one or more of the following:


       (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 lhe Supreme Court of Pennsylvania after the time
       period provided in this section and has been held by that Court to apply
       retroactively.


9. Citing the recent Supreme Court case of Montgomery v. Louisiana, 136 S.Ct. 718
(2016), the Defendant attempts to plead the third exception, a new constitutional right
recognized by the Supreme Court of the United States held to apply retroactively.


10. In Montgomery v. Louisiana, the Court held that its 2012 decision in Miller v. Alabama
(which prohibited mandatory life sentences without parole for juvenile offenders)
announced a substantive rule of constitutional law that therefore must be applied
retroactively on state collateral review.


11. Substantively, Montgomery v, Louisiana and Miller v. Alabama are in apposite to the
Defendant's claims of error in his Motion for Post Conviction Relief. Defendant was not a
juvenile at the time of his sentence. Nor was the Defendant sentenced to mandatory life
imprisonment without the possibility of parole.


12. The Defendant has failed to plead a new1 substantive constitutional rule entitling him
to relief on the claims asserted:


13. As a result, the Defendant has failed to specifically plead and prove any of the above
exceptions to timeliness under the Act.




1 The PCRA requires that any petition invoking an exception to the timeliness requirements of
the Act shall be filed within 60 days of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(2). The Defendant has attempted to bootstrap other decisions of the Supreme
Court to his claim for relief, including Miranda v. Arizona, Missouri v. Frye, and Lafler v.
Cooper. All of ffiese cases- are outside the 60-day window provided b-y ihe--Act: . .
           14. Therefore, this Court is without jurisdiction to consider Defendant's claims for relief.
           Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157, 1161 (2008)


           8. Second or Subsequent Petition


           15. A second or subsequent petition for post-conviction relief will not be entertained unless

           a strong prima facie showing is offered to demonstrate that a miscarriage of justice may

           have occurred. Commonwealth v. Allen, 557 Pa. 135, 141, 732 A.2d 582, 586 (1999). A

           prima facie showing of entitlement to relief is made only by demonstrating either that the

           proceedings which resulted in conviction were so unfair that a miscarriage of justice

           occurred which no civilized society could tolerate, or the defendant's innocence of the

           crimes for which he was charged. Commonwealth v. Ali, 86 A.3d 176-77 (Pa. February

           18, 2014}.


           16. Defendant's March 2, 2016 Motion for PCRA relief constitutes his third PCRA action

           at the instant action number.



           17. The Defendant filed his first PCRA Petition at this action number on May 15, 2009.
           The Defendant's first Petition raised issues surrounding his guilty plea, the effectiveness
           of his counsel, and various issues concerning his constitutional rights and police conduct.


           18. This Court dismissed Defendant's first PCRA Petition on September 24, 2009, and
           that dismissal was upheld by the Superior Court on rvl~ 22, 2010.


           19. On June 1q, 2012, the Defendant filed a second PCRA Petition challenging the
           ineffectiveness of plea counsel, violations of his constitutional rights by police, and the
----length-of-his-seritenGe-.----- -                                           ------·---··-··
20. This court dismissed Defendant's second PCRA Petition on September 2,G,, 2012, and
that dismissal was upheld by the Superior Court on September 17, 2013. The Supreme
Court denied Defendant's Petition for Allowance of Appeal on February 19, 2014.


21. Defendant's third PCRA Petition fails to allege or make a strong prima facie showing
demonstrating that a miscarriage of justice may have occurred as required by Ali, supra.


22. This Court, therefore, cannot entertain the March 2, 2016 Petition.


C. Claim of error previously litigated


23. The Act states, in pertinent part, "To be eligible for relief under [the PCRA], the
petitioner must plead and prove by a preponderance of the evidence . . . [t]hat the
allegation of error has not been previously litigated or waived." 42 Pa.C.S.A. §9543(a){3)


24. Defendant's third PCRA Petition once again attempts to impermissibly relitigate the
issue of the ineffectiveness of his plea counsel, constitutional violations by the police, and
the length of his sentence.


25. We therefore find that several of the issues raised by Defendant in his third PCRA
have already been "raised and decided in a proceeding collaterally attacking the
conviction or sentence." 42 Pa.C.S.A. § 9544.

       For the foregoing reasons, we are satisfied from our review of the Defendant's
motion and the record that there are no genuine issues concerning any material fact, that
the defendant is not entitled to post-conviction collateral relief, and that no purpose would
be served by any further proceedings.         Therefore, under Pa.R.Crim.P. 907(1), the
Defendant is given notice that it is the intention of the Court to dismiss his Motion to
Amend, which we have treated as a Petition for Post-Conviction Collateral Relief, without
a hearing. Defendant is afforded twenty (20) days from the date of this Order to file a
response to our proposed dismissal without a hearing sufficiently pleading the factual and
Defendant is given notice that it is the intention of the Court to dismiss his Motion to
Amend, which we have treated as a Petition for Post-Conviction             Collateral Relief,
without a hearing. Defendant is afforded twenty (20) days from the date of this Order to
file a response to our proposed dismissal without a hearing sufficiently pleading the
factual and legal bases upon which he is entitled to relief. The Defendant is directed to
serve a copy of any response filed upon the undersigned jurist.




                                            BY THE COURT:




                                                                  ,S.J.
                               ~\           RobertJ.E
RJE/kw


pc:    District Attorney (ln.teroff~Mail)
       Michael D. Fernsler (~ertified Mail at SCI Ret,reat, Inmate No. HO<?J0~,,~60     col//
       State Route 11, Hunlock Creek, PA 18621) 1( J{:)(J/ .t/.§70 IJOO o ;?,f5t>         e.7y,



                    PURSUANT
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                                                         114
                                                                      ,.
                      t,11:, date.,   :::C. - ~
                       C.l$rl, of r ourts, Lebc. ,on, PA
                                                                              Circulated 09/20/2016 03:42 PM

         ORIGINAL
                              IN THE COURT OF COMMON PLEAS
                           OF LEBANON COUNTY, PENNSYLVANIA


                                       CRIMINAL DIVISION


COMMONWEAL TH OF
PENNSYLVANIA
                                                     No. CP-38-CR-0002434-2007
       v.

MICHAEL D. FERNSLER


                                       ORDER OF COURT


       AND NOW, to wit, this ~ay                 of May, 2016, upon careful considerationof
Defendant's Petition for Post-Conviction Collateral Relief filed on March 2, 2016, the
Commonwealth's Response thereto, our Order of April 4, 2016, wherein we expressed our
intention to dismiss Defendant's Petition without a hearing and afforded Defer-dant twenty (20)
days to file a Response to the proposed dismissal, indicating an intention to dismiss Defendant's
claim, and the Defendant's Response to the Proposed Dismissal,
we hereby deny the relief sought by Defendant and order dismissal of his Petition filed March 2,
2016.


       The Defendant is advised that he has the right to appeal the denial of re'lef and dismissal
of his Petition to the Superior Court of Pennsylvania. An appeal must be filed in writing no later
than thirty days from the date of this Order.


                                                  BY THE COURT:




RJE/kw
 pc:     District Attorney (Interoffice Mail)   :;t;J--
         Michael D. Fernsler (Certified Mail at SCI Retreat, Inmate No. HQ0102, 660 State Route
         11, Hunlock Creek, PA 18621)~ 1t:Df J5tDO(X)3 ~l/SOOB&0-Me,.t.A£·6



PURSUANT TO Pa.R.Crim. P.114

  this date:     I .yred
  All parties are here~
                S::·    4     ,
  Clerk of Courts, Lebanon, PA
                     IN THE COURT OF COMMON-PLEAS                     LE3n:r·   .;   U,
                  OF LEBANON COUNTY, PENNSYL't'-~N1P.( 13 S:111 C2
                                  CRIMINAL DIVISION

COMMONWEAL TH OF
PENNSYLVANIA
                                                 No. CP-38-CR-0002434-2007
      v.
MICHAEL D. FERNSLER


OPINION BY EBY, S.J. May 11, 2016

       Before the Court is the Defendant's third petition for Post-Conviction Collateral

Relief, in which the Defendant argues he is entitled to relief from his 2008 convictions

for sexual assault and kidnapping based upon the recent holding of the United States

Supreme Court in Montgomery vs. Alabama. For the reasons that follow, we will deny

the relief sought and dismiss the Defendant's Petition.



Procedural and Factual History

       Members of the Lebanon County Detective Bureau filed a Criminal Complaint

against the Defendant on November 13, 2007, following his apprehension for the

kidnapping and sexual assault of a 14-year-old girl, C.G .. The Affidavit of Probable Cause

indicates that, on that date, the Defendant grabbed C.G. as she walked to her residence

after being dropped off by a school bus. The Defendant bound C.G.'s hands and eyes

and led her at knifepoint into a wooded area, threatening her with bodily harm if she

resisted. Once in the wooded area, the Defendant fondled C.G.'s breasts and penetrated

her vaginal area with his hand. He then removed his pants and exposed himself. C.G.

was able to remove the tape covering her mouth and began to scream and fight with the

                                                                                           1
Defendant. After managing to. free herself from her bindings, C.G. fled and called the

police. Although the Defendant had been wearing a mask, C.G. recognized the Defendant

as someone    she knew by his eyes and voice, and responding police were able to

apprehend him a short distance from the assault scene.

      The Commonwealth filed a Criminal Information against the Defendant on January

4, 2008, charging him with two counts of Kidnapping and one count each of Criminal

Attempt to Commit Rape, Aggravated       Indecent Assault, Indecent Assault, Terroristic

Threats, Unlawful Restraint, Indecent Exposure, and Recklessly Endangering Another

Person.   On March 20, 2008, the Defendant initialed and signed a guilty plea colloquy

form, which included the terms of a Negotiated Plea Agreement with the Commonwealth.

Under that Agreement, the Defendant agreed to plead guilty to all charges. In exchange

for his guilty plea, the Defendant was to receive a minimum sentence of five (5) years on

the Criminal Attempt Rape charge,       three and one half years (3 %) years on the

Kidnapping charge, and three and one half years (3 %) years on the Aggravated Indecent

Assault charge. The sentences were to run consecutively for an aggregate minimum

sentence of twelve (12) years, with the Court to set a maximum sentence. The remaining

charges were to either merge or run concurrently. That colloquy form was filed on March

26, 2008, after the Defendant entered his guilty plea in open court.

       On May 14, 2008, this Court sentenced the Defendant, pursuant to the Negotiated

Plea Agreement, to an aggregate sentence of 12 to 35 years of imprisonment. The Court's




                                                                                       2
aggregate sentence was to run consecutively to any other sentence the Defendant was

currently serving.1 The Defendant did not file post-sentence motions or a direct appeal.

       On May 15, 2009, the Defendant filed his first PCRA Petition. The Defendant's pro

se Petition asserted plea counsel was ineffective with regard to Defendant's entry of a

guilty plea because counsel did not meet with him or take into account case law the

Defendant had located. Defendant's Petition also asserted that his constitutional rights

were violated when law enforcement officers questioned him after he had requested an

attorney.

        Following the appointment of counsel for the Defendant and a Motion to Dismiss

filed by the Commonwealth, this Court filed an Order and Opinion on September 1, 2009,

indicating our intention to dismiss Defendant's Petition without a hearing and affording

him twenty (20) days in which to file a Response. The Defendant did not file a Response,

and on September 24, 2009, this Court denied the relief sought and dismissed

Defendant's Petition without a hearing.

        On October 26, 2009, the Defendant filed a Notice of Appeal to the Pennsylvania

Superior Court from our denial of PCRA relief. On July 22, 2010, the Superior Court

affirmed the denial of PCRA relief. See Commonwealth v. Fems/er, 1852 MDA 2009

(unpublished memorandum) (Pa. Super. July 22, 2010).

        On June 15, 2012, the Defendant filed a second PCRA Petition. The claims raised

by Defendant in that Petition included another challenge to the effectiveness of counsel

during the plea bargaining process. Specifically, the Defendant argued that, though



1
  Atthe time of his Lebanon County sentencing on March 26, 2008, the Defendant was currently serving a
25-50 year aggregate sentence imposed in Dauphin County on January 25, 2008 on convictions resulting
in his designation as a Sexually Violent Predator.

                                                                                                    3
untimely on its face, his Petition fell within the§ 9545(b)(1)(iii) exception to the timeliness

requirements of the Act, because the Lafler v. Cooper, 132 S.Ct. 1376 (2012) and

Missouri v. Frye, 132 S.Ct. 13_99 (2012) decisions of the United States Supreme Court

announced a new constitutional right of effective assistance of counsel during the plea

bargaining process. The Defendant argued that he was entitled to relief on the claims that

trial counsel failed to negotiate a reasonable plea agreement and that this Court had

imposed an illegal aggravated sentence without challenge from plea counsel. Finally,

Defendant argued that trial counsel was ineffective for failing to question the charge of

indecent assault-mentat disease/defect.

       On August 29, 2012, this Court issued a Pa.R.Crim.P. 907(1) Notice of Intent to

Dismiss and ultimately dismissed the Defendant's second PCRA Petition on September

26, 2012. On September 17, 2013, the Superior Court affirmed that dismissal, holding

specifically that "Appellant cannot rely on Frye and Cooper because neither case

announces a newly recognized constitutional right.. .. both cases clarify conduct

constituting ineffective assistance of counsel during the plea bargaining process and do

not create a newly recognized constitutional right. The right to effective assistance of

counsel during plea bargaining has been recognized since Strickland v. Washington, 466

U.S. 668 (1984) and Hill v. Lockhart, 474 U.S. 52 (1985)." Commonwealth v. Fernsler,

1894 MDA 2012 (unpublished memorandum) (Pa. Super. September 17, 2013) at 7-8.

       The Defendant filed a Petition for Allocator on October 17, 2013, which the

Supreme Court denied on February 19, 2014.

       The Defendant filed the instant PCRA action on March 2, 2016 expressly relying

upon the United States Supreme Court's January 27, 2016 decision in Montgomery v.



                                                                                              4
Alabama. Following a Rule issued by this Court, the Commonwealth filed a Response on

March 14, 2016. On April 5, 2016, we entered a detailed Order pursuant to Pa.R.Crim.P.

907(1), indicating an intention to deny relief and dismiss the Defendant's Petition without

a hearing. Our Order indicated that the Defendant's Petition was an untimely second or

subsequent petition which failed to plead an applicable exception to the timeliness

. requirements of the Act and sought to relitigate issues previously litigated or waived. Our

Order further afforded the Defendant twenty (20) days to file a Response. The Defendant

filed his Response to our proposed dismissal on April 12, 2016, and the matter is now

ripe for our disposition.



 Discussion

        1. Timeliness

        Our Rule 907(1) Order indicated an intention to dismiss Defendant's Petition

 because it was untimely. Defendant's Response to that Order does not convince us

 otherwise.

        As noted above, the Defendant was sentenced by this Court at the above action

 number on May 14, 2008. The Defendant had thirty (30) days to appeal that judgment of

 sentence to the Superior Court. He did not do so. Because a judgment of sentence

 becomes final at the conclusion of direct review or at the expiration of time for seeking

 review, the Defendant's judgment became final on June 13, 2008. 42 Pa.C.S.A.

 §9545(b)(3). Since petitions filed pursuant to the PCRA must be filed within one (1) year

 of the date that the judgment becomes final, the Defendant had until June 13, 2009 to file

 for relief under the Act. 42 Pa.C.S.A. §9545(b)(1). The Petition filed with this Court on



                                                                                           5
  March 2, 2016, nearly seven years past the deadline for filing a timely PCRA Petition, is

  clearly untimely.

         "The PCRA's timeliness requirements are jurisdictional in nature and must be

\ strictly construed; courts may not address the merits of the issues raised in a petition if it

  is not timely filed. Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1267-68

  (2004). Thus, we do not have jurisdiction to consider the merits of Defendant's Petition

  currently before the Court unless it meets an exception to the timeliness requirements of

  the Act.

         The PCRA provides for three specific exceptions to the timeliness requirements of

  the Act. To avail himself of one of these exceptions, the Defendant must plead and prove

  one or more of the following:

         (l). 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 the Court to apply
         retroactively.

  42 Pa.C.S.A. §9545(b)(1). Citing the recent Supreme Court decision of Montgomery v.

  Louisiana, 136 S.Ct. 718 (2016), both the Defendant's Petition and his Response to our

  907(1) Order attempt to plead the third exception, a new constitutional right recognized

  by the Supreme Court of the United States held to apply retroactively. We believe the

  Defendant misapprehends the import and scope of the Montgomery v. Louisiana, which

  held that the Court's 2012 decision in Mil/erv. Alabama, 132 S.C. 2455 (2012) announced

                                                                                              6
a new substantive rule of constitutional law that therefore must be applied retroactively

on state collateral review.

       We begin by noting that, substantively,      Montgomery v. Louisiana and Miller v.

Alabama are inapposite to the Defendant's claims of error in his Motion for Post

Conviction Relief. The Defendant was not a juvenile at the time of his sentence. Nor was

the Defendant sentenced to mandatory life imprisonment without the possibility of parole.

The specific new constitutional right announced by Miller (the right of juvenile defendants

to not face mandatory life sentences), as made retroactive by Montgomery, clearly

provides no basis for relief for the Defendant.

       The Defendant appears to base his claim for relief on the broader principle of the

Montgomery decision, particularly the following language: The Court now holds that
                                                                  11




when a new substantive rule of constitutional law controls the outcome of a case, the

Constitution requires state collateral review courts to give retroactive effect to that rule."

Montgomery, 136 S.Ct. at 729. Relying upon that language, the Defendant asserts:

"Montgomery ruled that any case based on Constitutional premises is retroactive to

collateral review; ... " Defendant's Response to Proposed Dismissal at 2, 11117,11. Based

upon that incorrect interpretation, the Defendant then erroneously concludes that

"Miranda, Frye, Cooper, and Alleyne are retroactively applicable." Id. at 1J11.

       We begin our analysis by correcting the Defendant's misinterpretation of the
                                                                                '
Montgomery decision as implicating all Constitutional decisions of the Supreme Court.

Of particular note for the instant case, Montgomery does not make those decisions

clarifying existing constitutional rights retroactive. It certainly does not, as asserted by the

Defendant, make a// previous decisions of the United States Supreme Court resting on



                                                                                              7
constitutional grounds retroactive. Instead, as explicitly stated in its holding, Montgomery

makes retroactive only those decisions which announce a new substantive rule of
                                                                               '
constitutional law that controls the outcome of a case. For a variety of reasons, the

Defendant's attempt to bootstrap the Court's decisions in Miranda v. Arizona, Missouri v.

Frye, Lafler v. Cooper, and Alleyne v. United States decisions to that specific holding of

Montgomery v. Alabama in order to satisfy the §9545(b)(1)(iii) exception to timeliness is

unpersuasive. We will analyze ·each of those reasons in turn.

       With respect to the Supreme Court decisions of Missouri v. Frye, 132 S.Ct. 1399

(2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012), the Pennsylvania Superior Court

specifically ruled in the context of Defendant's second PCRA Petition that those 2012

cases did not announce a newly recognized constitutional right. Rather, they clarified

conduct constituting ineffective assistance of counsel during the plea bargaining process.

Commonwealth v. Fernsler, 1894 MDA 2012 (unpublished memorandum) (Pa. Super.

September 17, 2013) at 7-8. Because the right to effective assistance of counsel had

been recognized since Strickland v. Washington, 466 U.S. 668 (1984) and Hill v.

Lockhart, 474 U.S. 52 (1985), the Superior Court held thatthe Missouri v. Frye and Lafler

v. Cooper decisions could not provide the basis for a §9545(b)(1)(iii) exception to the

timeliness requirements of the PCRA for the Defendant's claims. Id. We are persuaded

that the United States Supreme Court's decision in Montgomery v. Alabama does nothing

to change that analysis.

       With regard to the Alleyne v. United States decision, a brief review of the facts of

that case dispels any suggestion that it can provide, via the retroactivity train of

Montgomery v. Alabama, relief to the Defendant. Simply put, the issue in Alleyne has no



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parallel to the issues of the instant case. Alleyne v. United States, 133 S.Ct. 2151 (2013),

addressed the propriety of judicial fact-finding which increased the mandatory minimum

sentence of a crime in excess of that specifically authorized by a jury in reaching its verdict

on the elements of an offense. The Supreme Court held that the sentencing judge could

not enhance, based upon the trial judge's own fact finding at trial, a mandatory minimum

sentence not substantiated by the verdict of the jury. when the jury refused to find the

defendant had committed the enhancing element. In the instant case, there was no jury

trial. There were no jury findings that this Court superseded with its own fact-finding.

Rather, the Defendant pleaded guilty pursuant to a Negotiated Plea Agreement, in which

his minimum sentence on each offense was negotiated and agreed upon.                                   Any right

established by Alleyne, whether made retroactive by Montgomery v. Alabama or not, does

not apply to Defendant's case.

        Finally, Defendant's attempts to challenge his questioning by a detective after he

requested an attorney based upon the retroactivity of Miranda v. Arizona similarly does

not satisfy the §9545(b)(1)(iii) exception to timeliness. Miranda v. Arizona, 384 U.S. 436

(1966) was decided by the Supreme Court in 1966, decades before the Defendant was

charged and pleaded guilty to the charges at issue in this case. The Defendant cannot do

an end-run around the timeliness requirements of the PCRA by attempting to argue the

retroactive application of a right that was firmly rooted in American jurisprudence even

before he was born.2              The express language of the §9545(b)(1)(iii) exception-- a


2
  We adopt as well the reasoning and language of the Superior Court in resolving a similar claim for relief
in Defendant's first PCRA. "To be eligible for relief, appellant is required to plead and prove that the
allegations of error he raises have not been previously litigated or waived .... '[A]n issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in
prior state post-conviction proceedings.' 42 Pa.C.S.A. §9544(b). As appellant never raised these
disputes before his plea, at the time of his plea, at sentencing, in a post-sentence motion, or on direct
appeal, the PCRA court properly found them to be waived .... [l]t is well settled that a plea of guilty

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constitutional right recognized by the Supreme Court of the United States "after the time

period provided in this section"-- precludes such an argument.

       Because the Defendant has failed to specifically plead and prove any of the

exceptions to timeliness under the Act, we are without jurisdiction to consider his claims

for relief. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2008).



        2. Second or subsequent decision

        We also note that the PCRA Petition currently pending before the Court represents

the Defendant's third at this action number. A second or subsequent petition for post-

conviction relief will not be entertained unless a strong prima facie showing is offered to

demonstrate that a miscarriage of justice may have occurred. Commonwealth v. Allen,

557 Pa. 135, 141, 732 A.2d 582, 586 (1999). Aprima facieshowing of entitlement to relief

is made only by demonstrating either that the proceedings which resulted in conviction

were so unfair that a miscarriage of justice occurred which no civilized society could

tolerate, or the defendant's innocence of the crimes for which he was charged.

Commonwealth v. Ali, 624 Pa. 309, 315, 86 A.3d 173, 176-77 (February 18, 2014).


        The Defendant has not pleaded or proven his innocence of the crimes for which

he was charged and sentenced. Indeed, he cannot do so, as he pleaded guilty, pursuant

to a negotiated plea agreement, to all charges. Moreover, we do not find that any of the

issues he has raised resulted in a conviction that was so unfair that a miscarriage of




amounts to a waiver of all defects and defenses except those concerning jurisdiction of the court, the
validity of the plea, or the legality of the sentence imposed ... As appellant's contentions fall outside these
three narrow categories, we may not address them." Commonwealth v. Fernsler, 1852 M.D. 2009
(memorandum opinion) (Pa. Super. July 22, 2010) at 8-9 (citations omitted).

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justice occurred that no civilized society could tolerate. This Court, therefore, has no basis

to entertain the Defendant's third PCRA Petition at this action number.


       3. Claim of error previously litigated


       The PCRA states, in pertinent part, "To be eligible for relief under [the PCRA], the

petitioner must plead and prove by a preponderance            of the evidence . . . [t]hat the

allegation of error has not been previously litigated or waived." 42 Pa.C.S.A. §9543(a)(3).

Defendant's third PCRA Petition attempts to impermissibly relitigate the issue of the

ineffectiveness of his plea counsel, constitutional violations by the police, and the length

of his sentence, all issues raised in his previous PCRAs. Therefore, in addition to finding,

as noted above, that the Defendant has waived the claims for relief currently before this

Court, we also find that the issues raised by Defendant in his third PCRA, including the

ineffectiveness   of his plea counsel, alleged Miranda violations by the police, and the

length of his sentence, have already been "raised and decided in a proceeding collaterally

attacking the conviction or sentence." 42 Pa.C.S.A. § 9544.

        For these reasons, we are satisfied from our review of the Defendant's Petition

and the record of this case that there are no genuine issues of material fact, that the

 Defendant is not entitled to post-conviction collateral relief, and that no purpose would be

served by any further proceedings. Therefore, consistent with the stated intentions of our

 Order of April 4, 2016, we will enter an Order dismissing the Defendant's Petition and

denying his claims for relief.




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