J-S84037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GIACOMO DAVID PISCIOTTA                    :
                                               :
                       Appellant               :   No. 989 MDA 2017

                   Appeal from the PCRA Order May 16, 2017
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000198-2009


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 12, 2018

        Giacomo David Pisciotta appeals from the order entered May 16, 2017,

in the Luzerne County Court of Common Pleas, dismissing his fourth petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Pisciotta seeks relief from the October 30, 2009, judgment of sentence of an

aggregate term of 150 to 300 months’ imprisonment, imposed after he

entered a guilty plea to charges of robbery, burglary, and aggravated assault.2

On appeal, Pisciotta contends the sentence imposed was unconstitutional. For

the reasons below, we affirm.

        The factual and procedural history underlying this appeal were aptly

summarized in three prior decisions of this Court, and we need not recite them
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. §§ 3701(a)(1)(i), 3502(a), and 2702(a)(1), respectively.
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herein. See Commonwealth v. Pisciotta, 32 A.3d 825 (Pa. Super. 2011)

(unpublished memorandum); Commonwealth v. Pisciotta, 87 A.3d 886

(Pa.   Super.    2013)     (unpublished        memorandum);   Commonwealth    v.

Pisciotta, 134 A.3d 98 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, 130 A.3d 1289 (Pa. 2016). In summary, Pisciotta pled guilty

to breaking into the home of the 71-year-old victim, whom he then robbed

and beat with a baseball bat.          The trial court imposed three consecutive

sentences, all falling within the low end of the sentencing guidelines range

after applying the deadly weapon enhancement. See 204 Pa.Code. § 303.10.

Although Pisciotta did not file a direct appeal, he sought post-conviction

collateral relief on three prior occasions.

       In his most recent petition, filed on March 4, 2016, Pisciotta asserts his

sentence is illegal, and unconstitutional pursuant to Alleyne v. United

States, 570 U.S. 99 (2013), and Montgomery v. Louisiana, ___ U.S. ___,

136 S.Ct. 718 (2016). Counsel was appointed, but, on June 21, 2016, filed a

petition to withdraw and Turner/Finley3 “no merit” letter. Pisciotta filed a

pro se response to counsel’s “no merit” letter, and later retained private

counsel to assist him in the PCRA proceedings. Consequently, on October 14,



____________________________________________


3 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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2016, the PCRA court entered an order permitting appointed counsel to

withdraw.

       The court conducted a PCRA hearing on April 24, 2017. Thereafter, on

May 16, 2017, the PCRA court entered an order and opinion denying PCRA

relief. This timely appeal followed.4

       On appeal, Pisciotta contends the PCRA court erred in concluding his

petition was untimely filed, and that he failed to establish any of the time for

filing exceptions. “In reviewing the denial of PCRA relief, we examine whether

the PCRA court’s determination is supported by the record and free of legal

error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).       Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.” Id. at 1284

(citations omitted).

       It is axiomatic that a PCRA petition must be filed within one year of the

date the underlying judgment becomes final. See 42 Pa.C.S. § 9545(b)(1).

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
       753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
       untimeliness and reach the merits of the petition. Id.


____________________________________________


4 The PCRA court did not order Pisciotta to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).


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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S.Ct. 2695 (U.S. 2014).

       Here, Pisciotta’s judgment of sentence was final on January 4, 2010, 30

days after the trial court denied his post-sentence motion and he failed to file

a direct appeal.5 See id. at § 9545(b)(3). Therefore, he had until January 2,

2011, to file a timely petition, and the one before us, filed more than five

years later, is patently untimely.

       Nevertheless, an untimely PCRA petition may still be considered if one

of the    three time-for-filing exceptions applies.       See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).    Here, Pisciotta contends his petition meets the newly

recognized constitutional right exception, which provides an avenue for relief

if the petitioner pleads and proves:

       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)(iii). Moreover, a petition alleging a timing exception

must be filed within 60 days of when the PCRA claim could have first been

brought. 42 Pa.C.S. § 9545(b)(2).




____________________________________________


5The thirtieth day, January 2, 2010, fell on a Saturday. See 1 Pa.C.S. §
1908.


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      In the present case, Pisciotta argues his petition was timely filed within

60 days of the United States Supreme Court’s decision in Montgomery v.

Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016).       Pisciotta maintains:

      This decision, which was issued on January 25, 2016, found that
      substantive rule changes in constitutional law need to be applied
      retroactively.   The Alleyne case was specifically cited in
      Montgomery as such as a substantive rule, therefore creating
      the newly recognized right completed (sic) in the third prong of
      the timeliness test. Pisciotta’s instant PCRA petition, relying on
      Alleyne, through Montgomery, was filed on March 4, 2016, less
      than sixty days following the issuance of the Montgomery
      decision. As a result, the instant PCRA [petition] is timely filed.

Pisciotta’s Brief at 18-19.

      Pisciotta’s argument fails for several reasons. First, his Alleyne claim

was previously litigated.     See 42 Pa.C.S. § 9543(a)(3) (in order to obtain

PCRA relief a petitioner must plead a prove “the allegation of error has not

been previously litigated or waived”).        Indeed, Pisciotta asserted the

applicability of Alleyne in his prior PCRA petition filed in October of 2014. The

PCRA court rejected the claim, and a panel of this Court affirmed the decision

on appeal.     See Pisciotta, supra, 134 A.3d 98 (Pa. Super. 2015)

(unpublished memorandum at *3) (holding Pisciotta (1) did not receive a

mandatory sentence that would implicate Alleyne; (2) failed to file his petition

within 60 days of when the Alleyne decision was filed; and (3) failed to

establish Alleyne applied retroactively).     Therefore, pursuant to Section

9543(a)(3), Pisciotta cannot seek relief on this basis.

      Nevertheless, Pisciotta attempts to differentiate his argument in this

appeal by asserting that the United States Supreme Court’s recent decision in

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Montgomery, supra, provides a new avenue for relief, namely, that

Montgomery declared Alleyne to be a substantive rule entitled to retroactive

relief.6   See Pisciotta’s Brief at 18. We disagree.

       In Montgomery, the Supreme Court held that its prior decision in

Miller v. Alabama, 567 U.S. 460 (2012) — which declared that mandatory

life without parole for juvenile homicide offenders violates the Eighth

Amendment’s prohibition on cruel and unusual punishments — constituted a

new substantive rule that must be applied retroactively to cases on collateral

review. Thereafter, subsequent to and mindful of the Montgomery decision,

the Pennsylvania Supreme Court in Commonwealth v. Washington, 142

A.3d 810, 820 (Pa. 2016), specifically held “Alleyne does not apply

retroactively to cases pending on collateral review.”      To date, there is no

United States Supreme Court decision holding that              Alleyne applies

retroactively to untimely PCRA petitions. Accordingly, Pisciotta is unable to

establish a timeliness exception.

       Nevertheless, we note that even if Pisciotta’s petition were timely filed,

he would still not be entitled to sentencing relief under Alleyne. In that case,

the United States Supreme Court held “[a]ny fact that, by law, increases the

penalty for a crime is an ‘element’ that must be submitted to the jury and
____________________________________________


6 Pisciotta’s blanket assertion that the Montgomery Court “specifically cited”
the Alleyne case as a new substantive rule is simply untrue. Pisciotta’s Brief
at 18. Tellingly, Pisciotta fails to provide a specific citation to support this
claim, and our review of the Montgomery decision reveals no mention of
Alleyne.


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found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct. at 2155. In

interpreting that decision, the courts of this Commonwealth have determined

that most of our mandatory minimum sentencing statutes are unconstitutional

because the language of those statutes “permits the trial court, as opposed to

the jury, to increase a defendant’s minimum sentence based upon a

preponderance of the evidence” standard. Commonwealth v. Newman, 99

A.3d 86, 98 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.

2015).

      Here, however, Pisciotta was not sentenced pursuant to any of our now

unconstitutional mandatory minimum statutes. Rather, the trial court applied

the deadly weapon enhancement to increase the sentencing guideline ranges

for Pisciotta’s convictions.     See Pisciotta’s Brief at 19.      This Court has

specifically   held   “[t]he   imposition   of   the   deadly   weapon   sentencing

enhancement does not implicate the Supreme Court of the United States’

holding[] in Alleyne[.]” Commonwealth v. Shull, 148 A.3d 820, 830 n.6

(Pa. Super. 2016).      See Commonwealth v. Buterbaugh, 91 A.3d 1247,

1270 n.10 (Pa. Super. 2014) (explaining that imposition of deadly weapon

enhancement still provides trial court with the discretion to sentence outside

the guideline range, and therefore, does not implicate the concerns of

Alleyne).      Therefore, even if Pisciotta were able to overcome the timing

requirements, Alleyne provides him with no relief.




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2018




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