J-S77039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RICHARD ANDREW DADDARIO,

                            Appellant                   No. 889 MDA 2016


                    Appeal from the PCRA Order May 3, 2016
                in the Court of Common Pleas of Snyder County
               Criminal Division at No.: CP-55-CR-0000245-2005


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

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

        Appellant, Richard Andrew Daddario, appeals pro se, from the May 3,

2016 order dismissing his serial petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record.         On September 1, 2006, a jury convicted

Appellant of multiple counts of involuntary deviate sexual intercourse,

statutory sexual assault, aggravated indecent assault, corruption of minors,

and indecent assault.1


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See 18 Pa.C.S.A. §§ 3121(a)(7), 3122.1, 3125(a)(8), 6301(a)(1), and
3126(a)(8) respectively.
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              [Appellant] filed his first PCRA [p]etition pro se on June 17,
       2009 . . . .      As a result of that petition and subsequent
       proceedings and pursuant to an agreement to resolve his
       [p]etition, his original sentence was vacated and he was
       resentenced by the [trial court] on July 2, [2]010. No appeal
       followed.

(Commonwealth           v.   Daddario,         No.   1577   MDA   2014,   unpublished

memorandum (Pa. Super. filed June 16, 2015) (citation omitted)). Appellant

filed a second PCRA petition on July 14, 2014, which the PCRA court

dismissed as untimely. This Court affirmed the dismissal on June 16, 2015.

       Appellant filed the instant PCRA petition on March 4, 2016. The PCRA

court issued a notice of intention to dismiss, see Pa.R.Crim.P. 907(1), on

March 24, 2016. The petition was dismissed as untimely on May 3, 2016.

This timely appeal follows.2

       Appellant raises two issues on appeal:

       I. Whether Appellant’s confinement is illegal and constitutional
       [sic] where no statutory authorization exists, in violation of his
       6th, 8th, and 14th Amendment Rights of the Constitution?

       II. Whether the holding of Montgomery v. Louisiana[, 136
       S.Ct. 718 (2016),] renders Alleyne v. United States[, 133
       S.Ct. 2151 (2013),] retroactive where Alleyne controls the
       outcome of the case, and the Constitution requires state
       collateral review courts to give retroactive effect to this
       substantive ruling?

(Appellant’s Brief, at 4).

____________________________________________


2
  The PCRA court did not order Appellant to file a statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). It issued a statement on
May 20, 2016, referring this Court to its notice of intention to dismiss in lieu
of a separate opinion pursuant to Rule 1925(a). See Pa.R.A.P. 1925(a).



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      We begin by addressing the timeliness of Appellant’s instant PCRA

petition.

      Crucial to the determination of any PCRA appeal is the timeliness
      of the underlying petition.      Thus, we must first determine
      whether the instant PCRA petition was timely filed.            The
      timeliness requirement for PCRA petitions is mandatory and
      jurisdictional in nature, and the court may not ignore it in order
      to reach the merits of the petition. The question of whether a
      petition is timely raises a question of law. Where the petitioner
      raises questions of law, our standard of review is de novo and
      our scope of review plenary.

            A PCRA petition is timely if it is “filed within one year of the
      date the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §
      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.A. § 9545(b)(3). . . .

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (case

citations and some quotation marks omitted).          Furthermore, “[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.”

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citation omitted).

      Here, Appellant’s judgment of sentence became final on August 1,

2010, thirty days after he failed to file an appeal from his resentencing. See

Pa.R.A.P. 903(a).    Appellant therefore had until August 1, 2011, to file a

timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). He filed the present

petition on March 4, 2016. Thus, it was patently untimely.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

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            (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.A. § 9545(b)(1)(i)–(iii); see Brown, supra at 500.                 If an

exception applies, a petitioner must file the PCRA petition “within [sixty]

days of the date the claim could have been presented.”              42 Pa.C.S.A. §

9545(b)(2).      “[Our Supreme] Court has repeatedly stated it is the

appellant’s burden to allege and prove that one of the timeliness exceptions

applies.”    Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008)

(citation omitted).

      Here, Appellant claims the applicability of the constitutional right

exception to the PCRA time bar.            (See Appellant’s Brief, at 7-13); 42

Pa.C.S.A. § 9545(b)(1)(iii).      Specifically, he alleges that the United States

Supreme Court’s decision in Montgomery, supra (holding that Miller v.

Alabama, 132 S.Ct. 2455 (2012), should be applied retroactively),

mandated retroactive application of Alleyne. (See Appellant’s Brief, at 7-

13). We disagree.

      “[A] new rule of constitutional law is applied retroactively to cases on

collateral   review   only   if   the   United   States   Supreme   Court   or   the

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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.      Rather, our

Supreme    Court   recently   issued   an    opinion   in   Commonwealth     v.

Washington, 142 A.3d 810 (Pa. 2016), wherein it held “Alleyne does not

apply retroactively to cases pending on collateral review.” Id. at 820.

      Here, Appellant’s argument that the United States Supreme Court, in

Montgomery, held that Alleyne applies retroactively is meritless.            In

Montgomery, the Supreme Court held “Miller announced a substantive

rule that is retroactive in cases on collateral review.” Montgomery, supra

at 732. Its decision did not concern Alleyne. Thus, Appellant has not met

his burden of proving that Alleyne set forth a new constitutional law that is

applicable retroactively to cases on collateral review.     See 42 Pa.C.S.A. §

9545(b)(1)(iii).

      Accordingly, we conclude that Appellant has not met his burden of

proving that his untimely PCRA petition fits within one of the three

exceptions to the PCRA’s time bar.           See Hawkins, supra at 1253.

Therefore, we affirm the order of the PCRA court.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2016




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