J-S60006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MAURICE CHAMBERS

                        Appellant                    No. 852 MDA 2014


                Appeal from the PCRA Order March 17, 2014
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0000910-1997


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                           FILED OCTOBER 07, 2014

      Maurice Chambers appeals pro se from the order entered on March 17,

2014, in the Court of Common Pleas of Luzerne County, dismissing, as

untimely, his fourth petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Chambers claims his petition satisfies a



9545(b)(1)(iii) (newly-recognized constitutional right exception), and in

support cites two United States Supreme Court cases, Alleyne v. United

States, 133 S. Ct. 2151 (2013), and Miller v. Alabama, 132 S. Ct. 2455

(2012). Based upon the following, we affirm.
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       On October 27, 1997, Chambers was found guilty by a jury of second

degree murder, robbery, and two counts of criminal conspiracy (robbery).1

On December 5, 1997, he was sentenced to a term of life imprisonment on

the count of second degree murder, and a concurrent term of five to ten
                                                 2
                                                     On direct appeal, this

Court affirmed the judgment of sentence, and the Pennsylvania Supreme

                                                            Commonwealth

v. Chambers, 742 A.2d 201 (Pa. Super. 1999) (unpublished memorandum),

appeal denied, 749 A.2d 466 (Pa. 2000). On October 2, 2000, the United

                                                       on     for   certiorari.

Commonwealth v. Chambers, 531 U.S. 853 (2000).

       On February 5, 2001, Chambers filed his first pro se PCRA petition.

Counsel was appointed and an amended petition was filed on November 25,

2002. The PCRA court denied relief on June 12, 2003.        Chambers filed a

timely appeal with this Court and, in a published opinion, filed on May 17,

2004, this Court affirmed the order of the PCRA court. Commonwealth v.

Chambers, 852 A.2d 1197 (Pa. Super. 2004). The Pennsylvania Supreme




____________________________________________


1
  See 18 Pa.C.S §§ 2501(a), 3701(a)(1)(i), 903(a)(1), and 903(a)(2),
respectively.
2
  The robbery count merged with the count for second degree murder, and
the two counts of conspiracy merged for purposes of sentencing.



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Court denied Chamb

Commonwealth v. Chambers, 871 A.2d 188 (Pa. 2005).

       On October 12, 2007, Chambers filed his second pro se PCRA petition.

On October 20, 2009, the court dismissed the petition as untimely. On

appeal, this Court affirmed the denial of PCRA relief, and the Pennsylvania



Commonwealth           v.   Chambers,          11   A.3d   1026   (Pa.   Super.   2010)

(unpublished opinion), appeal denied, 21 A.3d 1189 (Pa. 2011).

       On April 24, 2012, Chambers filed a third PCRA petition, which was

dismissed by the PCRA court on December 10, 2012.                  This Court, by per
                                                                                      3
curiam

                                                                           petition for

allowance of appeal on October 17, 2013. Commonwealth v. Chambers,

77 A.3d 1258 (Pa. 2013).



his third PCRA petition was still pending, Chambers filed the present petition,

citing Miller v. Alabama, supra. The PCRA court ordered that the petition

be held in abeyance until return of the record.              See PCRA Court Order,

5/30/2013.      On July 15, 2013, Chambers filed a petition to amend his PCRA

petition, citing Alleyne, supra.         Subsequently, on January 29, 2014, the


____________________________________________


3
    See Commonwealth v. Chambers, 288 MDA 2013.



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PCRA court issued notice of intention to dismiss pursuant to Pa.R.Crim.P.

907.    Following the filing of objections by Chambers, the PCRA court

dismissed his PCRA petition on March 17, 2014.     Chambers then filed this

timely appeal.




                                                       Commonwealth v.

Taylor, 67 A.3d 1245, 1248 (Pa. 2014) (quotations and citation omitted),

cert. denied, 134 S. Ct. 2695 (2014).         PCRA timeliness requirement,

                                                    Id. (citation omitted).

       All PCRA petitions must be filed within one year of the date the

judgment of sentence becomes final, unless the petition alleges, and the

petitioner proves, that one of the three enumerated exceptions to the time

for filing requirement is met.   See 42 Pa.C.S. § 9545(b)(1).     The PCRA

exceptions that allow for review of an untimely petition are as follows: (1)

governmental interference; (2) the discovery of previously unknown facts;

and (3) a newly-recognized constitutional right.   See 42 Pa.C.S. § 9545

(b)(1)(i)-(iii). Furthermore, the statutory exceptions to the timeliness

requirements of the PCRA are subject to a separate time limitation, and any

petition invoking an exception must be filed within sixty (60) days of the

time the claim could first have been presented. See 42 Pa.C.S. §




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9545(b)(2).4 See also Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.

Super. 2011), appeal denied, 50 A.3d 121 (Pa. 2012).



2000, when the United States Supreme Court denied his petition for

certiorari.   See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes



Supreme Court of the United States and the Supreme Court of Pennsylvania,



until October 2, 2001 to file a timely petition. Chambers does not dispute

that his petition, filed on April 24, 2013, is patently untimely.           However,

Chambers invokes the newly-recognized constitutional right exception, set

forth at 42 Pa.C.S. § 9545(b)(1)(iii).

       Initially, we note that Subsection 9545(b)(1)(iii) applies only where



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

added). This Court has reiterated:

           Subsection (iii) of section 9545 has two requirements.
           First, it provides that the right asserted is a constitutional
____________________________________________


4

provided in paragraph (1) shall be filed within 60 days of the date the claim




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           right that was recognized by the Supreme Court of the
           United States or th[e Pennsylvania] Supreme Court after
           the time provided in this section. Second, it provides that

           retroactively. Thus, a petitioner must prove that


           retroactively. The language
           the past tense. These words mean that the action
           has already occurred, i.e.
           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.

       Commonwealth v. Abdul-Salaam, 571 Pa. 219, 226, 812 A.2d
       497, 501 (2002). See Commonwealth v. Copenhefer, 596
       Pa. 104, 941 A.2d 646 (2007).

Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011)

(emphasis added), appeal denied, 38 A.3d 823 (Pa. 2012).

       First, Chambers cites Alleyne v. United States, supra, wherein the

                                                                              es



                                                 Id. at 2155, citing Apprendi v.

New Jersey, 530 U.S. 466, 483, n.10, 490 (2000)).5              The relevance of


____________________________________________


5
  As noted above, Chambers filed the instant PCRA petition on April 24,
2013, and filed a petition to amend his PCRA petition, citing Alleyne, on July
15, 2013. Because Alleyne was decided on June 17, 2013, Chambers did
comply with 42 Pa.C.S. § 9545(b)(2) by filing the amended PCRA petition
within 60                                                 See 42 Pa.C.S. §
9545(b)(2).




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                                               6
Alleyne                                            but, in any event, no relief is due

since the Alleyne Court did not address whether the holding would apply

retroactively    to   cases   on    collateral     appeal.    Moreover,   neither   the

Pennsylvania Supreme Court nor the United States Supreme Court has

issued a decision giving Alleyne

argument that this Court should apply Alleyne retroactively is unpersuasive.
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6
    Here, with regard to the charge of robbery, which requires that the

Chambers argues:

                                          ly did not mention the essential


                                          ****


       [Chambers] was charged, and because the fact of robbery
       aggravates the legally prescribed range of allowable sentences


                                          ****

       It is well settled that a jury cannot find the defendant guilty of
       robbery unless satisfied beyond reasonable doubt that he
       (committed a theft) or (attempted to commit a theft), both
       which are elements of the charged offense.

                                          ****

                  theft is essential to the penalty, it was an element of
       the offense. Alleyne would mean that the government cannot
       force a judge to impose a sentence unless the jury finds the
       requisite statutory factual predicate.

             pro se Brief at 8, 10, 11.



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See United States v. Reyes, 755 F.3d 210 (3d Cir. 2014) (holding Alleyne

is not retroactively applicable to cases on collateral review); United States

v. Winkelman, et al., 746 F.3d 134 (3d Cir. 2014) (same).7 Accordingly,

                                          Alleyne is unavailing, as he has failed to



                                                 Garcia, supra at 1063 (citations

and quotation marks omitted).

       Secondly, Chambers cites Miller v. Alabama, supra, wherein the

                                                                                for

those under the age of 18 at the time of their crimes violates the Eighth

                                                                        Id., 132 S.

Ct. at 2460 (emphasis added). Miller, however, was decided by the United

States Supreme Court on June 25, 2012, and Chambers failed to raise his

claim within 60 days, as required by 42 Pa.C.S. § 9545(b)(2). 8                See

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Supe

sixty-day period [of Section 9545(b)(2)] begins to run upon the date of the
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7
  We recognize the holdings of federal circuit courts are not binding but may
serve as persuasive authority. Commonwealth v. Haskins, 60 A.3d 538,
48 n.9 (Pa. Super. 2012), appeal denied, 78 A.3d 1090 (Pa. 2013).
8
  It was not until April 24, 2013, when Chambers filed this fourth PCRA
petition, that he cited Miller. We note Chambers filed his third PCRA
petition on April 24, 2012, and he did not amend his petition to raise Miller
after the decision was issued on June 25, 2012. As mentioned above, the




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underlying judicial decision.

cannot satisfy the requirements of Section 9545(b)(1)(iii) since: (1) Miller

does not apply to Chambers because he was not under 18 years of age when

he committed the underlying murder;9 and (2) even if Chambers had been

under 18 years old when he committed the murder, the Pennsylvania

Supreme Court, in Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa.

2013), cert. denied, 134 S. Ct. 2724 (2014), held that Miller is not

retroactive and does not apply to those already serving sentences of life

imprisonment.      See also Commonwealth v. Cintora, 69 A.3d 759 (Pa.

Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (holding a contention

that Miller applies to persons over 18 whose brains were immature at the

time of the crime does not bring the matter within the newly recognized

constitutional right exception).

       Based upon our review, we agree with the PCRA court that the instant

PCRA petition was untimely and no exceptions apply. Accordingly, the PCRA

court properly dismissed this serial petition.

       Order affirmed.

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9
    Chambers states he was 19 years old at the time of the murder.      See

Chambers was 20 years old at the time of the crimes.      See   PCRA Court


date of birth as December 15, 1976. The date of the offenses which resulted




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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