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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LONNIE DAY, JR.
Appellant No. 32 EDA 2017
Appeal from the PCRA Order November 30, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1223441-1981
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
JUDGMENT ORDER BY PANELLA, J. FILED SEPTEMBER 26, 2017
Appellant, Lonnie Day, Jr., is a serial filer of PCRA petitions. This pro
se appeal is from the order dismissing as untimely his fifth petition. We
affirm.
The relevant facts and procedural history of this case are as follows.
Following a jury trial, Appellant was convicted of second-degree murder,
criminal conspiracy, and possession of an instrument of crime. On July 27,
1983, Appellant was sentenced to life imprisonment. This Court affirmed his
judgment of sentence on August 6, 1985. Appellant did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court. Appellant filed his
first PCRA petition on July 24, 1986. The PCRA court subsequently denied
Appellant’s petition, and this Court affirmed. Appellant filed several
subsequent PCRA petitions, all of which were denied as untimely.
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Appellant filed the instant petition on February 11, 2016, challenging
his conviction under Alleyne v. United States, 133 S.Ct. 2151 (2013). The
Commonwealth filed a motion to dismiss. The PCRA court issued Rule 907
notice, and Appellant filed a response. Nevertheless, the PCRA court
dismissed Appellant’s petition. Appellant timely filed a notice of appeal to
this Court.
Prior to reaching the merits of Appellant’s claims, we must first
consider the timeliness of his PCRA petition. See Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal
citations and footnote omitted).
Instantly, Appellant’s judgment of sentence became final on
September 5, 1985, when his time for seeking a petition for allowance of
appeal with the Pennsylvania Supreme Court expired. His fifth PCRA petition,
filed over thirty years later on February 11, 2016, is patently untimely. Thus,
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the PCRA court lacked jurisdiction to review Appellant’s petition unless he
was able to successfully plead and prove one of the statutory exceptions to
the PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
A petitioner asserting one of these exceptions must file a petition
within 60 days of the date the claim could have first been presented. See 42
Pa.C.S.A. § 9545(b)(2). Exceptions to the time-bar must be pled in the
petition, and may not be raised for the first time on appeal. See
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See
also Pa.R.A.P. 302(a) (providing that issues not raised before the lower
court are waived and cannot be raised for the first time on appeal).
Appellant has failed to successfully plead any of the exceptions to the
PCRA’s time-bar. Appellant attempts to plead in his PCRA petition an
exception to the PCRA time bar under 42 Pa.C.S.A. § 9545(b)(1)(iii); i.e., a
newly announced constitutional right. There, Appellant claims the United
States Supreme Court’s holding in Montgomery v. Louisiana, 136 S.Ct.
718 (2016), requires Alleyne be applied retroactively to all cases on
collateral review.
There are two major problems with this assertion. First, “Alleyne does
not apply retroactively to cases pending on collateral review….”
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).
Additionally, Montgomery’s holding is specifically limited to juvenile
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offenders. See Montgomery, 136 S.Ct. at 736. As Appellant was not a
juvenile at the time of his crime, this case is wholly inapplicable to him.
Second, Appellant entirely abandons his Montgomery argument on
appeal. Instead, Appellant uses his brief to repeatedly cite to
Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000), for the
proposition that a challenge to the legality of the sentence is not subject to
the PCRA’s time-bar. Appellant is confused. Vasquez concerned a direct
appeal. See id., at 1281 (“In this direct appeal…”). This case is on collateral
review.
In any event, even if Appellant had raised this argument in his PCRA
petition, “in order for this Court to review a legality of sentence claim, there
must be a basis for our jurisdiction to engage in such review.”
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citation
omitted). Put another way, “[t]hough not technically waivable, a legality [of
sentence] claim may nevertheless be lost should it be raised ... in an
untimely PCRA petition for which no time-bar exception applies, thus
depriving the court of jurisdiction over the claim.” Id. (citation omitted;
brackets in original). Here, there would be no basis for our jurisdiction to
review this claim.
We find the PCRA court properly dismissed Appellant’s petition as
untimely, and we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2017
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