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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL LETTERLOUGH,
Appellant No. 491 MDA 2015
Appeal from the PCRA Order of February 26, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000226-1992
BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 16, 2015
Appellant, Samuel Letterlough, appeals, pro se, from the order entered
on February 26, 2014, dismissing his third petition filed under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.
This Court previously summarized the facts and procedural posture
surrounding Appellant’s convictions, judgment of sentence, and prior PCRA
petitions. As we explained:
On October 19, 1992, a jury convicted [Appellant] of
second-degree murder and robbery.[fn.1] On December 12,
1994, the trial court sentenced [A]ppellant to a mandatory
sentence of life imprisonment on the second-degree murder
conviction. No further sentence was imposed on the
robbery conviction. On March 13, 1996, this Court affirmed
[Appellant’s] judgment of sentence, and our Supreme Court
denied [Appellant’s] petition for allowance of appeal on
October 3, 1996. Commonwealth v. Letterlough, 678
A.2d 829 (Pa. Super. 1996) (unpublished memorandum),
appeal denied, 683 A.2d 878 (Pa. 1996) (per curiam).
* Retired Senior Judge assigned to the Superior Court
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[Appellant] did not file a petition for a writ of certiorari with
the Supreme Court of the United States.
[fn.1] 18 [Pa.C.S.A.] §§ 3701 [and] 2502(b),
respectively.
On June 21, 2007, [Appellant] filed his first pro se PCRA
petition. On June 25, 2007, the PCRA court appointed
counsel. On July 23, 2007, [Appellant’s] counsel filed a
motion to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc); and[,]
Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2006). On August 1, 2007, the PCRA court gave notice
pursuant to Pa.R.Crim.P. 907 of its intention to dismiss
[Appellant’s] PCRA petition without a hearing and, after
review, granted counsel’s motion to withdraw. On August
21, 2007, the PCRA court dismissed [Appellant’s] PCRA
petition as untimely.
...
[On] April 7, 2008, [] we affirmed the PCRA court’s order
dismissing [Appellant’s first] PCRA petition. Our Supreme
Court denied [Appellant’s] petition for allowance of appeal .
. . on September 10, 2008. [Commonwealth v.
Letterlough, 953 A.2d 833 (Pa. Super. 2008) (unpublished
memorandum), appeal denied, 956 A.2d 433 (Pa. 2008)].
On June 28, 2011, [Appellant] filed a [pro se] petition for a
writ of habeas corpus[, which constituted Appellant’s second
petition under the PCRA]. . . . [The PCRA court did not
appoint counsel and, o]n July 7, 2011, the [PCRA] court
[dismissed Appellant’s second PCRA] petition[.] . . . [On
March 27, 2012, this Court affirmed the PCRA court’s order.
Commonwealth v. Letterlough, 47 A.3d 1257 (Pa. Super.
2012) (unpublished memorandum). Appellant did not
thereafter file a petition for allowance of appeal to the
Pennsylvania Supreme Court].
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Commonwealth v. Letterlough, 105 A.3d 787 (Pa. Super. 2014)
(unpublished memorandum) at 1-2 (some internal quotations, citations, and
corrections omitted).
On August 7, 2014, Appellant filed the current, pro se PCRA petition –
which constitutes Appellant’s third petition for post-conviction collateral relief
under the PCRA. Within this petition, Appellant claimed that, in 2007, his
first PCRA counsel provided him with ineffective assistance. See Appellant’s
Third PCRA Petition, 8/7/14, at 1-10. Further, while Appellant cited the
relevant statutes that delineate the exceptions to the PCRA’s one-year time-
bar, Appellant pleaded no facts that could satisfy any of the statutory
timeliness exceptions. See id. at 8-10; see also 42 Pa.C.S.A. § 9545(b).
Appellant filed a pro se amendment to his third PCRA petition on
September 17, 2014. Within the amended petition, Appellant claimed that
he was entitled to relief because his mandatory sentence of life
imprisonment for second-degree murder was now illegal in light of Alleyne
v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013) and this Court’s en
banc opinion in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc). Appellant’s Amended Third PCRA Petition, 9/17/14, at 1-8.
On January 20, 2015, the PCRA court provided Appellant with notice
that it intended to dismiss Appellant’s PCRA petition in 20 days, without
holding a hearing. PCRA Court Order, 1/20/15, at 1; see also Pa.R.Crim.P.
907(1). On February 2, 2015, Appellant responded to the PCRA court’s Rule
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907 notice by declaring that his petition was timely because the petition was
predicated upon an illegal sentencing claim, the United States Supreme
Court’s opinion in Alleyne, and “facts [that] were known to him [sic] by
Tracy Whitaker/Cp-9712 here at SCI Coal Township.”1 Appellant’s Response
to Rule 907 Notice, 2/2/15, at 1-4.
The PCRA court finally dismissed Appellant’s PCRA petition on February
26, 2015 and Appellant filed a timely notice of appeal to this Court. We now
affirm the dismissal of Appellant’s patently untimely, serial PCRA petition.
As our Supreme Court held, we “review an order granting or denying
PCRA relief to determine whether the PCRA court’s decision is supported by
evidence of record and whether its decision is free from legal error.”
Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
1
Appellant never explained what facts “were known to him by Tracy
Whitaker.” See Appellant’s Response to Rule 907 Notice, 2/2/15, at 1-4.
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we are required to first determine the timeliness of a petition before we
consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,
586 (Pa. 1999). Our Supreme Court explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
In the case at bar, Appellant’s judgment of sentence became final in
1997, when his time for filing a petition for writ of certiorari with the United
States Supreme Court expired. See U.S.Sup.Ct.R. 13(1). As Appellant did
not file his current petition until August 7, 2014, the current petition is
manifestly untimely and the burden thus fell upon Appellant to plead and
prove that one of the enumerated exceptions to the one-year time-bar
applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a
statutory exception to the one-year time-bar, the PCRA demands that the
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petitioner properly plead and prove all required elements of the relied-upon
exception).
Here, Appellant purports to invoke the “newly recognized constitutional
right” exception to the time-bar. This statutory exception provides:
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
...
(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.
...
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S.A. § 9545(b).
As our Supreme Court explained:
Subsection (iii) of Section 9545(b)(1) has two requirements.
First, it provides that 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 provided in this section. Second, it provides that
the right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that there is a
“new” constitutional right and that the right “has been held”
by that court to apply retroactively. The language “has
been held” is in the past tense. These words mean that the
action has already occurred, i.e., “that court” has already
held the new constitutional right to be retroactive to cases
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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. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),
quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)
(internal corrections omitted). Moreover, since the plain statutory language
of section 9545 demands that the PCRA petition “allege” all elements of the
statutory exception, it is clear that – to properly invoke the “newly
recognized constitutional right” exception – the petitioner must plead each of
the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).
Within Appellant’s third PCRA petition, Appellant claimed that his
mandatory sentence of life imprisonment is now illegal in light of the United
States Supreme Court’s opinion in Alleyne and this Court’s opinion in
Newman. This claim immediately fails, as Appellant did not file his current
PCRA petition within 60 days of the date Alleyne was decided2 and
Newman was an opinion from this Court – not the Supreme Court.
Therefore, under the plain statutory language of 42 Pa.C.S.A.
§ 9545(b)(1)(iii) and (2), Appellant’s PCRA petition cannot satisfy the “newly
recognized constitutional right” exception to the time-bar. Appellant’s
attempt to invoke the “newly recognized constitutional right” exception to
the PCRA’s one-year time-bar thus fails.
2
Alleyne was decided on June 17, 2013.
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Further, since Appellant did not attempt to plead any other exception
to the time-bar,3 we conclude that Appellant’s petition is time-barred and
that our “courts are without jurisdiction to offer [Appellant] any form of
relief.”4 Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).
Therefore, we affirm the PCRA court’s order dismissing Appellant’s third
PCRA petition without a hearing.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
3
Again, Appellant never attempted to explain what facts “were known to
him by Tracy Whitaker.” See Appellant’s Response to Rule 907 Notice,
2/2/15, at 1-4.
4
To the extent Appellant claims that his illegal sentencing claim is non-
waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[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) (emphasis added).
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