J-S73035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

CORY JOHN ALTMAN

                        Appellant                  No. 490 WDA 2016


                 Appeal from the PCRA Order March 1, 2016
              In the Court of Common Pleas of Warren County
            Criminal Division at No(s): CP-62-CR-0000053-2009


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED OCTOBER 04, 2016

     Cory Altman appeals from an order dismissing his petition under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.

     In 2008, Altman, then 28 years old, conspired with his sister, Susan

Yeager, to murder Yeager’s husband, Shawn Yeager, and make his death

appear to be a hunting accident.    On December 5, 2008, Shawn Yeager’s

two sons returned home to find Shawn Yeager dead, lying on the porch of

his residence. When the police investigated, several witnesses revealed that

Susan Yeager had discussed a number of times, with numerous people, over

a period of several years that “she would be better off if her husband were

dead.”   Upon questioning, Susan Yeager confessed that she had solicited

Altman and two others to commit the crime. On December 8, 2008, Altman

confessed that he had killed Shawn Yeager.       On May 14, 2009, a jury
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convicted Altman of, inter alia, first degree murder and cruelty to animals.1

On June 16, 2009, the trial court sentenced Altman to life imprisonment

without the possibility of parole.

        Altman filed timely post-sentence motions, which the trial court

denied. Altman filed a timely direct appeal, but on December 2, 2009, he

filed a praecipe to discontinue this appeal.

        In 2010, Altman filed a timely PCRA petition. The PCRA court denied

the petition after a hearing, and this Court affirmed at 1687 WDA 2010. In

2013, Altman filed a second PCRA petition. The PCRA court dismissed the

petition without a hearing, and this Court affirmed at 785 WDA 2013.

        On December 26, 2014, Altman filed his third PCRA petition, the

petition presently under review.          The PCRA court appointed counsel, who

filed a Turner/Finley2 letter stating that Altman failed to state any basis for

relief and a motion seeking leave to withdraw as counsel. The court issued a

notice of intent to dismiss the petition without a hearing and granted

counsel’s motion to withdraw. Altman filed a pro se response to the notice

of intent to dismiss.




____________________________________________


1
    18 Pa.C.S. §§ 2502 and 5511, respectively.
2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa.1988),                      and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).



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     On March 1, 2016, the court entered an order dismissing Altman’s

petition. On March 31, 2016, Altman filed a timely notice of appeal. Both

Altman and the PCRA court complied with Pa.R.A.P. 1925.

     In this appeal, Altman raises a single issue, which we have

paraphrased for ease of disposition: whether his sentence is unconstitutional

under Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super.2014), and

Miller v. Alabama, -- U.S. --, 133 S.Ct. 2151 (2013).

     Before we address the merits of Altman’s claims, we must determine

whether the PCRA court had jurisdiction to review his petition. We conclude

that the PCRA court lacked jurisdiction to review Altman’s challenge to the

legality of his sentence under the PCRA’s one-year statute of limitations, 42

Pa.C.S. § 9545(b).

     Section 9545     provides that a 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); accord Commonwealth v.

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to

hear an untimely PCRA petition.    Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa.2003)). A judgment is 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).


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      Three exceptions to the PCRA’s time-bar provide for very limited

circumstances under which a court may excuse the late filing of a PCRA

petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The late

filing of a petition will be excused if a petitioner alleges and proves:

            (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 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)(i)-(iii).    A petition invoking an exception to the

PCRA time bar must “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      Altman’s judgment of sentence became final on December 2, 2009,

the date he discontinued his direct appeal to the Superior Court. The statute

of limitations for filing a PCRA petition expired on December 2, 2010. The

present PCRA petition, which Altman filed on December 26, 2014, is

untimely on its face.

      None of the exceptions in section 9545(b)(i-iii) apply to this case.

Altman does not allege that the government interference or newly acquired

evidence exceptions in section 9545(b)(i-ii) apply to his case.

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      With regard to subsection (iii), Altman alleges that his sentence is

unconstitutional under Valentine, in which this Court held that the

defendant’s mandatory minimum sentence under 42 Pa.C.S. § 9712.1 for

committing a robbery with a firearm was unconstitutional under Alleyne v.

United States, -- U.S. --, 133 S.Ct. 2151 (2013).        Subsection (iii) only

permits relief when our Supreme Court or the United States Supreme Court

recognizes a constitutional right and applies that right retroactively.   Our

Supreme Court has held that Alleyne does not apply retroactively to cases

pending on collateral review, such as the present case. Commonwealth v.

Washington, -- A.3d --, 2016 WL 3909088 (Pa., 7/15/16).            Moreover,

Valentine, as a decision from this Court, cannot afford retroactive relief to

PCRA petitioners such as Altman.

      Nor can Altman obtain relief under Miller v. Alabama.       Miller held

that mandatory sentences of life without parole violated the Eighth

Amendment of the United States Constitution when imposed upon juvenile

homicide defendants.    Earlier this year, the United States Supreme Court

held in Montgomery v. Louisiana, -- U.S. --, 135 S.Ct. 1546 (2016), that

Miller applies retroactively to cases pending on collateral review wherein the

judgment of sentence has already become final. Altman, however, was 28

years old at the time of his crime, so Miller does not entitle him to

retroactive relief.   See Commonwealth v. Cintora, 69 A.3d 759, 764

(Pa.Super.2013) (argument that Miller should be extended to persons over


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the age of 18 whose brains were immature at time of their offenses did not

bring PCRA petition within exception to time bar for petitions asserting

newly-recognized constitutional rights).

      For these reasons, the PCRA court and this Court lack jurisdiction over

Altman’s third PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2016




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