J-S65039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
COURTNEY COX,
Appellant No. 375 WDA 2016
Appeal from the PCRA Order January 27, 2016
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0010907-2003
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 27, 2016
Appellant, Courtney Cox, appeals pro se from the January 27, 2016
order dismissing his third petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely.1 We affirm.
The PCRA court summarized the relevant history of this case as
follows:
[Appellant] was found guilty by a jury on April 26, 2004 of
criminal attempt (homicide) (2 counts), 18 Pa.C.S.A. § 901,
aggravated assault (serious bodily injury) (5 counts), 18
Pa.C.S.A. § 2701(a)(1), aggravated assault (police officer) (6
counts), 18 Pa.C.S.A. § 2702(a)(6), recklessly endangering
another person (9 counts), 18 Pa.C.S.A. § 2705, and violations
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although dated January 26, 2016, the PCRA court’s order was entered on
the docket in this case on January 27, 2016. We have amended the caption
accordingly.
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of the uniform firearms act: firearms not to be carried without a
license, 18 Pa.C.S.A. § 6106. In a stipulated non-jury trial, the
court found [Appellant] guilty of [a] violation of the uniform
firearms act: former felon not to possess a firearm, 18 Pa.C.S.A.
§ 6105.
On May 27, 2004, [Appellant] was sentenced to serve
consecutive sentences[,] with a total period of incarceration of
not less than sixty-six (66) years nor more than one hundred []
thirty-two (132) years.
A direct appeal was filed to the Superior Court, [which]
issued an order and memorandum opinion on May 30, 2006[,]
affirming the judgment of sentence. A subsequent petition for
allowance of appeal was denied on December 13, 2006.
On February 27, 2007, [Appellant] filed his first timely
petition under the [PCRA]. Counsel was appointed for
[Appellant] and counsel filed an amended petition. The
Commonwealth filed an answer. After the issuance of a notice of
intention to dismiss, [see Pa.R.Crim.P. 907(1),] the petition was
dismissed without a hearing on November 9, 2007. [Appellant]
appealed the dismissal to the Superior Court, [which] affirmed
[the PCRA] court.
[Appellant] filed a second petition under the [PCRA,] which
was dismissed as time-barred.
[Appellant] filed his third petition under the [PCRA] on
December 11, 2015. The [PCRA] court issued a notice of
intention to dismiss and the third petition was dismissed as time-
barred on January 2[7], 2016. This [timely2] appeal follows.
____________________________________________
2
Appellant filed his notice of appeal on February 29, 2016. Although this
would appear to be in excess of the thirty-day appeal period, see Pa.R.A.P.
903(a), the notice of appeal is post-marked February 24, 2016. Thus,
pursuant to the prisoner mailbox rule, we deem it timely filed. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (holding that
appeal by pro se prisoner is deemed filed on date prisoner places it in prison
mailbox). The PCRA court did not order Appellant to file a concise statement
of errors complained of on appeal. See Pa.R.A.P. 1925(b). It entered its
opinion on March 23, 2016. See Pa.R.A.P. 1925(a).
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(PCRA Court Opinion, 3/23/16, at 1-2) (unnecessary capitalization omitted).
Appellant raises two issues on appeal:
I. Does the new substantive law announcing the
unconstitutional nature of the sentence imposed apply
retroactively?
II. Did the [PCRA] court [] err as a matter of law when it
determined the PCRA petition was untimely?
(See Appellant’s Brief, at 4) (most capitalization omitted).
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).
Here, Appellant’s judgment of sentence became final on March 13,
2007, ninety days after our Supreme Court denied allowance of appeal. See
U.S. Sup. Ct. R. 13. Appellant therefore had until March 13, 2008, to file a
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timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). He filed the present
petition, his third, on December 11, 2015. Thus, it was patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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 10-14); 42
Pa.C.S.A. § 9545(b)(1)(iii). Specifically, he alleges that the United States
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151
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(2013) (holding that any fact that, by law, increases penalty for crime must
be found beyond reasonable doubt by fact finder), rendered his sentence
illegal. (See id.). He also claims that the Supreme Court’s decision in
Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that Miller v.
Alabama, 132 S.Ct. 2455 (2012) should be applied retroactively),
mandated retroactive application of Alleyne. (See id.). 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
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, --- A.3d ---, 2016 WL 3909088 (Pa. filed July 19, 2016),
wherein it held “that Alleyne does not apply retroactively to cases pending
on collateral review.” Id. at *8.
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 that “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
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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.
Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2016
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