J-S23006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH ROBERT MANN, JR.
Appellant No. 2204 EDA 2016
Appeal from the PCRA Order June 15, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003611-2005
CP-15-CR-0003612-2005
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 29, 2017
Appellant, Joseph Robert Mann, Jr., appeals pro se from the order
entered on June 15, 2016, which dismissed his second petition filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
In 2007, a jury found Appellant guilty of eight counts of rape, 12
counts of involuntary deviate sexual intercourse, 21 counts of indecent
assault, eight counts of criminal attempt to commit rape, four counts of
incest, and three counts each of endangering the welfare of children and
corruption of minors. On June 22, 2007, the trial court sentenced Appellant
to serve an aggregate term of 31 ½ to 63 years in prison for his convictions.
We affirmed Appellant’s judgment of sentence on August 28, 2008;
Appellant did not file a petition for allowance of appeal with our Supreme
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Court. Commonwealth v. Mann, 961 A.2d 1278 (Pa. Super. 2008)
(unpublished memorandum) at 1-20.
On August 3, 2009, Appellant filed his first PCRA petition. Following a
remand, the PCRA court denied Appellant post-conviction collateral relief
and, on November 25, 2014, this Court affirmed the PCRA court’s order.
Commonwealth v. Mann, 113 A.3d 358 (Pa. Super. 2014) (unpublished
memorandum) at 1-6, appeal denied, 114 A.3d 416 (Pa. 2015). Our
Supreme Court denied Appellant’s petition for allowance of appeal on April 7,
2015. Id.
Appellant filed the current PCRA petition – his second – on March 29,
2016. Within the petition, Appellant claimed that, in Montgomery v.
Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), the United States Supreme
Court created a new constitutional right that entitled him to relief.
Appellant’s Second PCRA Petition, 3/29/16, at 3-4. Specifically, Appellant
claimed, in accordance with Montgomery, his “sentence is illegal and
unconstitutional in violation of his 8th Amendment [right] to be free from
cruel and unusual punishment.” Id. at 4.
On May 11, 2016, the PCRA court issued Appellant notice, pursuant to
Pennsylvania Rule of Criminal Procedure 907, of its intent to dismiss
Appellant’s petition in 20 days, without holding a hearing. PCRA Court
Order, 5/11/16, at 1-5; Pa.R.Crim.P. 907(1). Appellant responded to the
PCRA court’s notice and repeated his claim that Montgomery provided him
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with an avenue for relief. See Appellant’s Response to the Rule 907 Notice,
5/23/16, at 1.
The PCRA court finally dismissed Appellant’s PCRA petition on June 15,
2016 and Appellant filed a timely notice of appeal. We now affirm the
dismissal of Appellant’s patently untimely, serial PCRA petition.
“As a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported by the
record and free of legal error.” Commonwealth v. Eichinger, 108 A.3d
821, 830 (Pa. 2014).
Before this Court can address the substance of Appellant’s claims, we
must determine if this petition is timely.
[The PCRA requires] a petitioner to file any PCRA petition
within one year of the date the judgment of sentence
becomes final. A judgment of sentence becomes final at
the conclusion of direct review . . . or at the expiration of
time for seeking review.
...
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition,
set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
met. A petition invoking one of these exceptions must be
filed within [60] days of the date the claim could first have
been presented. In order to be entitled to the exceptions to
the PCRA’s one-year filing deadline, the petitioner must
plead and prove specific facts that demonstrate his claim
was raised within the [60]-day timeframe.
Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some
internal citations omitted) (internal quotations omitted).
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In the present case, the PCRA court found Appellant’s petition to be
untimely filed. PCRA Court Opinion, 6/15/16, at 1-5. We agree. Appellant’s
judgment of sentence became final at the end of the day on Monday,
September 29, 2008, which was 30 computable days after this Court
affirmed Appellant’s judgment of sentence and the time for filing a petition
for allowance of appeal with our Supreme Court expired. See 42 Pa.C.S.A.
§ 9545(b)(3) (“A judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States . . .
, or at the expiration of time for seeking the review”); see also Pa.R.A.P.
1113(a); 1 Pa.C.S.A. § 1908 (computation of time). The PCRA explicitly
requires that a petition be filed “within one year of the date the judgment
becomes final.” 42 Pa.C.S.A. § 9545(b)(1). As such, Appellant had until
September 29, 2009 to file a timely PCRA petition. Since Appellant filed his
current petition on March 29, 2016, the current petition is patently 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 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:
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(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
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
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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 second PCRA petition, Appellant claims that his
sentence “is illegal and unconstitutional and subject to correction based on
the holding of Montgomery v. Louisiana, [___ U.S. ___, 136 S.Ct. 718
(2016)].” Appellant’s Second PCRA Petition, 3/29/16, at 4. Appellant’s
claim fails because Montgomery concerned the retroactive application of
Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) – and Miller held
that the Eighth Amendment prohibited mandatory life sentences without
parole for juveniles convicted of a homicide offense. See Montgomery,
136 S.Ct. at 725. In this case, Appellant was not a juvenile when he was
convicted of his non-homicide offenses and Appellant did not receive a
mandatory sentence of life in prison without the possibility of parole. Thus,
neither Montgomery nor Miller applies to the case at bar.
Since Appellant did not attempt to plead any other exception to the
time-bar, we conclude that Appellant’s petition is time-barred and that our
“courts are without jurisdiction to offer [Appellant] any form of relief.”1
____________________________________________
1
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
(Footnote Continued Next Page)
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Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).
Therefore, we affirm the PCRA court’s order dismissing Appellant’s second
PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
_______________________
(Footnote Continued)
the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (emphasis added).
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