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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LOUIS W. BARTLEBAUGH
Appellant No. 783 WDA 2016
Appeal from the PCRA Order April 26, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0002669-2002
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED NOVEMBER 23, 2016
Appellant, Louis W. Bartlebaugh, appeals pro se from the order
entered in the Cambria County Court of Common Pleas, which denied his
third petition filed under the Post Conviction Relief Act (“PCRA”) at 42
Pa.C.S.A. §§ 9541-9546. On May 20, 2003, a jury convicted Appellant of
aggravated assault, rape, and related offenses. On September 11, 2003,
the court sentenced Appellant to an aggregate term of 15-30 years’
imprisonment. This Court affirmed the judgment of sentence on June 30,
2005, and our Supreme Court denied allowance of appeal on November 30,
2005. See Commonwealth v. Bartlebaugh, 881 A.2d 878 (Pa.Super.
2005) (unpublished memorandum), appeal denied, 586 Pa. 707, 889 A.2d
1212 (2005). Appellant filed his first PCRA petition on July 6, 2006, which
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*Former Justice specially assigned to the Superior Court.
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the PCRA court denied on September 13, 2006. This Court affirmed on
January 3, 2008. See Commonwealth v. Bartlebaugh, 947 A.2d 821
(Pa.Super. 2008). On February 2, 2012, Appellant filed his second PCRA
petition, which the PCRA court dismissed as untimely on February 9, 2012.
This Court affirmed on December 13, 2012. See Commonwealth v.
Bartlebaugh, 64 A.3d 20 (Pa.Super. 2012). On March 23, 2016, Appellant
filed the current pro se PCRA petition. The PCRA court issued a Rule 907
notice and later dismissed the petition on April 26, 2016. Appellant timely
filed a pro se notice of appeal. The PCRA court ordered Appellant to file a
Rule 1925(b) statement; Appellant timely complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,
625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA allow
for very limited circumstances under which the late filing of a petition will be
excused. 42 Pa.C.S.A. § 9545(b)(1). A petitioner asserting a timeliness
exception must file a petition within sixty days of the date the claim could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). When asserting the
newly created constitutional right exception under Section 9545(b)(1)(iii), “a
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petitioner must prove that there is a ‘new’ constitutional right and that the
right ‘has been held’ by that court to apply retroactively.” Commonwealth
v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa.
625, 46 A.3d 715 (2012).
Instantly, Appellant’s judgment of sentence became final on February
28, 2006, upon expiration of the time to file a petition for writ of certiorari in
the United States Supreme Court. See U.S.Sup.Ct.R. 13. On March 23,
2016, Appellant filed the current petition, which is patently untimely. See
42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new
constitutional right” exception to the PCRA time bar by citing the U.S.
Supreme Court’s decision in Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151,
186 L.Ed.2d 314 (2013), and its Pennsylvania progeny. Appellant insists
Alleyne and its progeny declared unconstitutional the mandatory minimum
sentencing statute under which Appellant claims he was sentenced. Neither
the U.S. Supreme Court nor the Pennsylvania Supreme Court, however, has
held that Alleyne or its progeny apply retroactively on collateral review.
See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (holding
that even if Alleyne announced new constitutional right, neither our
Supreme Court nor United States Supreme Court has held that Alleyne
applies retroactively, which is fatal to appellant’s attempt to satisfy “new
constitutional right” exception to timeliness requirements of PCRA). See
also Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016)
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(holding Alleyne does not apply retroactively on collateral review to
challenge to mandatory minimum sentence as “illegal”). Therefore,
Appellant’s petition remains time barred, and the PCRA court lacked
jurisdiction to review it. See Turner, supra. Moreover, the record makes
clear Appellant received no mandatory minimum sentence. Accordingly, we
affirm.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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1
Due to our disposition, we deny Appellant’s open motion for a continuance
to await the Pennsylvania Supreme Court’s disposition in Commonwealth
v. Barnes, ___ Pa. ___, 122 A.3d 1034 (2015) (granting allowance of
appeal).
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