J-S77040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN COOKE,

                            Appellant                 No. 575 MDA 2016


                  Appeal from the PCRA Order March 11, 2016
               in the Court of Common Pleas of Lycoming County
               Criminal Division at No.: CP-41-CR-0002087-1998


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 14, 2016

        Appellant, John Cooke, appeals, pro se, from the order of March 11,

2016, dismissing, without a hearing, his first1 counseled petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Because the petition is untimely without an applicable exception, we

affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   While Appellant filed two previous PCRA petitions, both concerned
restoration of certain direct appeal rights nunc pro tunc. Thus, the trial
court properly deemed the current petition to be Appellant’s first PCRA
petition. See Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa.
Super. 2003) (noting that upon restoration of direct appeal rights nunc pro
tunc, subsequent PCRA petition will be considered first petition for timeliness
purposes).
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      We take the underlying facts and procedural history in this matter

from this Court’s June 7, 2004 memorandum and our independent review of

the certified record.

            Represented by [the Lycoming County Public Defender’s
      Office], Appellant pleaded guilty to robbery, kidnapping,
      conspiracy, receiving stolen property, and robbery of a motor
      vehicle, and was sentenced by the [trial court] to [not less than]
      nine [nor more than twenty] years’ [incarceration] on June 22,
      1999. A direct appeal was then filed on Appellant’s behalf by
      [new counsel], but [he] failed to file a Pa.R.A.P. 1925(b)
      statement, as directed by the lower court. A panel of this Court
      subsequently found all issues waived, and affirmed Appellant’s
      sentence on July 6, 2000.

            Appellant filed a pro se PCRA petition on January 9, 2001,
      and [counsel] was appointed to represent him. [The PCRA
      court] granted Appellant’s PCRA petition on April 5, 2001, giving
      him [thirty] days in which to file an appeal nunc pro tunc. . . . .
      Appellant filed an appeal to this court on May 2, 2001[.] . . . [A]
      panel of this Court affirmed his sentence on July 19, 2002.

            Appellant asserts that on August 4, 2002, unaware his
      sentence had been affirmed, he requested that [counsel] appeal
      his case to the next level if it was denied by this Court. In a
      letter dated August 20, 2002, however, [counsel] informed
      Appellant that he no longer had a right to appointed counsel,
      [the] firm was discontinuing its representation, and if he wanted
      to request review with the Pennsylvania Supreme Court, he
      could hire an attorney of his choice to do so.

            Unrepresented, Appellant again petitioned for post-
      conviction relief on October 9, 2002, arguing that [counsel] was
      ineffective for failing to notify him of the denial of his appeal in
      time for him to file an appeal to the Pennsylvania Supreme
      Court. The remedy sought by Appellant’s PCRA petition was an
      extension of time to file a petition for allowance of appeal to the
      Pennsylvania Supreme Court. On October 22, 2002, [the PCRA
      court] denied Appellant’s request for an extension of time. While
      the order itself [did] not specifically indicate an intent to dismiss
      Appellant’s PCRA petition, [the PCRA court] explain[ed] that the
      docket entry corresponding to the order lists it as [o]rder

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      dismissing Post-Conviction Relief Act [p]etition.     [The PCRA
      court] further acknowledge[d] that since the only relief the PCRA
      petition [sought was] an extension of time, the order effectively
      denie[d] that petition.

             On October 30, 2002, nearly two weeks after [the PCRA
      court] issued the order effectively denying Appellant’s PCRA
      petition, [counsel] was appointed by [a different judge] to
      represent Appellant. [Counsel] filed an appeal of the October
      22, 2002 order on Appellant’s behalf on November 21, 2002.

(Commonwealth        v.   Cooke,    No.    1834   MDA    2002,   unpublished

memorandum at 1-3 (Pa. Super. filed June 7, 2004)) (quotation marks,

footnote, and record citations omitted).

      On June 7, 2004, this Court vacated the dismissal of Appellant’s PCRA

petition and remanded for an evidentiary hearing.       (See id. at 1).    On

February 7, 2005, following a hearing, the PCRA court granted Appellant’s

PCRA petition, giving him thirty days to seek leave to appeal to the

Pennsylvania Supreme Court.        Appellant did so, and the Pennsylvania

Supreme Court denied leave to appeal on April 19, 2006.                   (See

Commonwealth v. Cooke, 897 A.2d 450 (Pa. 2006)).

      On August 11, 2015, Appellant, acting pro se, filed the instant PCRA

petition seeking to vacate his sentence pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013).       The PCRA court appointed counsel on




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August 18, 2015.           On October 7, 2015, PCRA counsel submitted a

Turner/Finley2 letter. Appellant filed a response on November 4, 2015.

       On February 17, 2016, the PCRA court issued notice of its intent to

dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure

907(1), and granted PCRA counsel’s request to withdraw. Appellant filed a

response on March 3, 2016. On March 11, 2016, the PCRA court dismissed

the petition as untimely. The instant, timely appeal followed.3

       On appeal, Appellant raises the following question for our review:

       1. Whether the ruling of Montgomery v. Louisiana, [136 S.
          Ct. 718 (2016)] clarified and reestablished a constitutional
          rule warranting retroactive application during collateral
          review?

(Appellant’s Brief, at vii).

       Our standard of review for an order denying PCRA relief is well-settled:

             This Court’s standard of review regarding a PCRA court’s
       order is whether the determination of the PCRA court is
       supported by the evidence of record and is free of legal error.
       Great deference is granted to the findings of the PCRA court, and
       these findings will not be disturbed unless they have no support
       in the certified record. . . .



____________________________________________


2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On June 13, 2016, it filed
an opinion. See Pa.R.A.P. 1925(a).




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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

      Here, Appellant filed his PCRA petition on August 11, 2015. The PCRA

provides that “[a]ny petition under this subchapter, including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]”    42 Pa.C.S.A. § 9545(b)(1).           Therefore, Appellant’s

judgment of sentence became final on July 18, 2006, ninety days after the

Pennsylvania Supreme Court denied leave to appeal and Appellant did not

file a petition for a writ of certiorari with the United States Supreme Court.

See U.S.Sup.Ct.R. 13. Because Appellant did not file his current petition

until April 11, 2015, the petition is facially untimely.    See 42 Pa.C.S.A. §

9545(b)(1). Thus, he must plead and prove that he falls under one of the

exceptions at Section 9545(b) of the PCRA. See id.

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully 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




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            (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.

Id. at § 9545(b)(1)(i)-(iii).    Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”                Id. at § 9545(b)(2).        The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).

      In the instant matter, Appellant appears to contend that his petition is

timely under § 9545(b)(1)(iii), specifically that the United States Supreme

Court’s decision in Alleyne, supra renders his sentence illegal.                (See

Appellant’s Brief, at 1-4). While Appellant acknowledges that our Court has

not applied Alleyne retroactively to cases on collateral review, he contends

that the U.S. Supreme Court’s decision in Montgomery mandates that we

do so. (See id. at IX). We disagree.

      Firstly, we note that the fact that Appellant challenges the legality of

his   sentence   does   not     allow   him    to   evade   the   PCRA’s   timeliness

requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the

Pennsylvania Supreme Court rejected this contention.               The Fahy Court

stated, “[a]lthough legality of sentence is always subject to review within the


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PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto.” Id. at 223 (citation omitted). Thus, Appellant cannot

elude the PCRA’s timeliness requirements based on a claim of an illegal

sentence. See id.

       Moreover, “a new rule of constitutional law is applied retroactively to

cases on collateral review only if the United States Supreme Court or the

Pennsylvania Supreme Court specifically holds it to             be retroactively

applicable to those cases.” Commonwealth v. Whitehawk, --- A.3d ---,

2016 WL 4473779, at *4 (Pa. Super. filed Aug. 24, 2016) (citation omitted).

Neither Court has held that Alleyne is applied retroactively. Further, in a

decision    that    post-dates      Montgomery,4      our   Supreme   Court   has

unequivocally held that Alleyne does not apply retroactively to cases

pending on collateral review.         See Commonwealth v. Washington, 142

A.3d 810, 820 (Pa. 2016).

       Here, Appellant was sentenced in 1999.          His judgment of sentence

became final in 2006. Thus, this matter is clearly on collateral review, and

his PCRA petition is facially untimely.          Because Alleyne does not apply

retroactively to cases on collateral review, it cannot afford Appellant relief.

See Washington, supra at 820; see also Commonwealth v. Riggle, 119

____________________________________________


4
  Appellant does not point to any cases that have held that the decision in
Montgomery renders Alleyne retroactive to cases on collateral review.
(See Appellant’s Brief, at 1-4).



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A.3d 1058, 1064 (Pa. Super. 2015); Commonwealth v. Miller, 102 A.3d

988, 995 (Pa. Super. 2014).

     Thus, Appellant’s PCRA petition is untimely with no statutory exception

to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly,

we affirm the order of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2016




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