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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
JOSEPH M. BENESHUNAS                        :
                   APPELLANT                :
                                            :
                                            :     No. 1541 MDA 2016

                  Appeal from the PCRA Order August 29, 2016
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0000745-1995

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                            FILED AUGUST 16, 2017

        Appellant, Joseph M. Beneshunas, appeals from the August 29, 2016

Order entered in the Court of Common Pleas of Schuylkill County dismissing

his third Petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546.       After careful review, we affirm on the basis that

Appellant’s PCRA Petition is untimely and this Court, thus, lacks jurisdiction

to review the Petition.

        On January 21, 1997, a jury convicted Appellant of First-Degree

Murder and related offenses for the shooting death of his girlfriend, and the

trial court subsequently sentenced Appellant to a mandatory term of life




*
    Former Justice specially assigned to the Superior Court.
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imprisonment.1     On November 30, 1998, this Court affirmed Appellant’s

Judgment of Sentence, and the Pennsylvania Supreme Court denied

Appellant’s    Petition   for   Allowance   of   Appeal   on   April   20,   1999.

Commonwealth v. Beneshunas, 738 A.2d 454 (Pa. 1999). Appellant did

not seek review by the United States Supreme Court. Appellant’s Judgment

of Sentence, therefore, became final on July 19, 1999.         See 42 Pa.C.S. §

9545(b)(3); U.S. Sup. Ct. R. 13.

        On July 21, 2016, more than seventeen years after his Judgment of

Sentence became final, Appellant filed the instant pro se PCRA Petition, his

third, raising an Alleyne2 claim. On August 11, 2016, the PCRA court issued

a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to dismiss his

Petition without a hearing.      Appellant filed a timely pro se “Objection to

Notice of Intent to Dismiss with an Alternative Habeas Corpus Pleading.” On

August 29, 2016, after consideration of Appellant’s response, the PCRA court

dismissed Appellant’s Petition without a hearing, concluding that “Alleyne

does not apply retroactively to collateral attacks on mandatory minimum




1
    18 Pa.C.S. § 1102.
2
  Alleyne v. United States, 133 S.Ct. 2151, 2160-61 (U.S. 2013) (holding
that, other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory minimum must be
submitted to a jury and proved beyond a reasonable doubt).




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sentences.”3    PCRA Court Opinion, filed 8/29/16, at 2.     Appellant timely

appealed.

      Appellant challenges the denial of his PCRA Petition, asserting that (1)

the PCRA court should have addressed his Alternative Habeas Corpus

Pleading as separate from his PCRA petition, and (2) his Alleyne claim is

timely based on the holding in Montgomery v. Louisiana, 136 S.Ct. 718

(U.S. 2016).4

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). 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).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

3
  The PCRA court also concluded the “Alternative Habeas Corpus Pleading”
was a response to the Notice of Intent to Dismiss, rather than a separate
petition for writ of habeas corpus.
4
  In Montgomery, the United States Supreme Court held that the rule
announced in Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012), prohibiting
mandatory life sentences without parole for juvenile offenders, is a
substantive constitutional rule that applies retroactively on state collateral
review.



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(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite). Under the PCRA, any Petition “including a second or subsequent

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

final[.]” 42 Pa.C.S. § 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. §

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).

      Here, Appellant’s Judgment of Sentence became final on July 19,

1999, upon expiration of the time to file a Petition for Writ of Certiorari with

the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.

Ct. R. 13.   In order to be timely, Appellant needed to submit his PCRA

Petition by July 19, 2000.    42 Pa.C.S. § 9545(b)(1).       Appellant filed this

PCRA Petition on July 21, 2016, more than sixteen years after the one-year

deadline. Thus, Appellant’s Petition is facially untimely.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b)(1). Any petition invoking a timeliness exception must be




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filed within 60 days of the date the claim could have been presented. 42

Pa.C.S. § 9545(b)(2).

      Here, Appellant invokes the third timeliness exception to challenge the

legality of his sentence, which allows an untimely filing if the petition asserts

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. § 9545(b)(1)(iii).

      Although a legality of sentence claim cannot be waived, it must be

timely raised, i.e., within 60 days of the date the claim could have been

presented. 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Jones, 932 A.2d

179, 182 (Pa. Super. 2007); Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999) (holding that ”[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”).

      In support of his challenge, Appellant erroneously argues that Alleyne

announced a new substantive rule made retroactive by Montgomery.

However, the Pennsylvania Supreme Court recently concluded that the

constitutional rule announced in Alleyne is procedural, not substantive, and

unequivocally held that “Alleyne does not apply retroactively to cases

pending on collateral review[.]”      Commonwealth v. Washington, 142

A.3d 810, 818-20 (Pa. 2016).            Accordingly, Appellant’s reliance on



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Montgomery is misplaced and his Alleyne claim does not fall under one of

the Section § 9545(b)(1)(iii) timeliness exceptions.5

      Further, the holding in Montgomery is that the rule announced in

Miller, supra, holding juveniles cannot be sentenced to life in prison without

parole, is substantive for purposes of retroactivity.     This is not a case

involving a juvenile, and, therefore, Montgomery does not apply.6

      With respect to Appellant’s challenge to the PCRA court’s treatment of

his “Alternative Habeas Corpus Pleading,” we note that it is well established

that “the writ of habeas corpus has been subsumed into the PCRA for claims

that are cognizable under the [PCRA] and is not available merely because an

otherwise cognizable claim is jurisdictionally time-barred.” Commonwealth

v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006) (citation omitted).

      In his “Habeas Corpus Pleading,” Appellant raised the same issues as

those raised in his Objection to the PCRA court’s Rule 907 Notice. The PCRA

court properly considered the pleading to be part of his response to the Rule

907 Notice, rather than as a separate habeas corpus petition.

5
  Additionally, the trial court sentenced Appellant to a mandatory term of life
imprisonment pursuant to 18 Pa.C.S. § 1102, a sentencing statute which
does not permit imposition of a lesser term. Accordingly, Alleyne is
inapplicable in Appellant’s case.
6
  Moreover, Montgomery, supra, was decided on January 25, 2016.
Assuming, arguendo, that Montgomery is applicable here, Appellant had
until March 25, 2016 to file a PCRA Petition. See 42 Pa.C.S. § 9545(b)(2).
Appellant did not file the instant PCRA Petition until July 21, 2016, thus
rendering it untimely in any event.




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      In conclusion, Appellant failed to plead and prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly

dismissed Appellant’s untimely Petition and properly addressed Appellant’s

“Alternative Habeas Corpus Pleading.” The record supports the PCRA court’s

findings and its Order is free of legal error. We, thus, affirm the denial of

PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/16/2017




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