J-S24032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD LAYMAN MONROE :
:
Appellant : No. 1523 WDA 2016
Appeal from the PCRA Order May 6, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000217-1997
BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 19, 2017
Appellant, Edward Layman Monroe, appeals pro se from the order
entered in the Court of Common Pleas of Fayette County dismissing his
“Memorandum of Fact and Law Retroactively Relief, Resentencing,
Modification and Reconsideration of Sentencing (Evidentiary Hearing),”
which the lower court treated as a second petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After a careful
review, we affirm.
The relevant facts and procedural history are as follows: On November
19, 1997, a jury convicted Appellant, who was tried with two co-defendants,
Stanley T. Brown and Ronnie Austin, of first-degree murder, retaliation
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S24032-17
against a witness, and criminal conspiracy.1 He was sentenced to life
imprisonment, and following a direct appeal, this Court affirmed his
judgment of sentence. Commonwealth v. Monroe, No. 801 Pittsburgh
1998 (Pa.Super. filed March 23, 1999) (unpublished memorandum).
Appellant filed a petition for allowance of appeal to our Supreme Court,
which was denied on September 30, 1999. Commonwealth v. Monroe,
No. 308 WD 1999 (Pa. filed Sept. 30, 1999) (per curiam order). Appellant
did not file a petition for a writ of certiorari with the U.S. Supreme Court.
On August 30, 2000, Appellant filed a timely pro se PCRA petition, and
following the appointment of counsel, the PCRA court denied the PCRA
petition. This Court affirmed. Commonwealth v. Monroe, No. 2030 WDA
2000 (Pa.Super. filed Sept. 11, 2001) (unpublished memorandum).
On March 24, 2016,2 Appellant filed a pro se document entitled
“Memorandum of Fact and Law Retroactively Relief, Resentencing,
Modification and Reconsideration of Sentencing (Evidentiary Hearing).”
Therein, Appellant presented challenges to the legality of his sentence.
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 4953, and 903, respectively.
2
Appellant’s pro se document was docketed on March 29, 2016; however,
the record indicates Appellant handed the document to prison authorities on
March 24, 2016. Accordingly, pursuant to the prisoner mailbox rule, we
shall deem the document to have been filed on March 24, 2016. See
Commonwealth v. Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing
the prisoner mailbox rule).
-2-
J-S24032-17
Further, he indicated that, to the extent the document constituted a second
PCRA petition, he was entitled to the timeliness exception set forth in 42
Pa.C.S.A. § 9545(b)(1)(iii), based on the U.S. Supreme Court’s decisions in
Alleyne v. United States, 133 S.Ct. 2151 (2013), and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016).
The lower court treated this pro se document as a second PCRA
petition,3 and on April 6, 2016, the court provided Appellant with notice of
its intention to dismiss without an evidentiary hearing on the basis the
petition was untimely filed and did not qualify for any of the timeliness
exceptions under the PCRA. On or about April 28, 2016, Appellant filed a
pro se response requesting the lower court treat his document as a habeas
corpus petition. By order entered on May 6, 2016, the lower court dismissed
Appellant’s petition under the auspices of the PCRA, and this timely appeal
followed.4 The lower court directed Appellant to file a Pa.R.A.P. 1925(b)
____________________________________________
3
After this Court affirmed the denial of Appellant’s first PCRA petition,
Appellant filed several petitions seeking the expungement of charges and/or
his criminal record. “We note that a petition for expungement does not fall
within the remedies afforded by the PCRA and does not constitute a PCRA
petition.” Commonwealth v. Rainey, 139 A.3d 261, 264 n.2 (Pa.Super.
2016).
4
We note that Appellant filed his notice of appeal directly with this Court,
and pursuant to the prisoner mailbox rule, based on the envelope’s postage
stamp, we deemed the appeal to have been filed on Monday, June 6, 2016.
See Patterson, supra. By order entered on July 12, 2016, we find
Appellant’s appeal to be timely filed, but transmitted it to the lower court for
entry on the lower court’s docket.
-3-
J-S24032-17
statement, Appellant timely filed a statement, and the lower court filed a
statement in lieu of opinion pursuant to Pa.R.A.P. 1925(a).
At the outset, we conclude the lower court properly treated Appellant’s
instant petition under the auspices of the PCRA. The PCRA provides: “The
action established in this subchapter shall be the sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose that exist when this subchapter takes effect,
including habeas corpus[.]” 42 Pa.C.S.A. § 9542. Thus, where a petitioner’s
claim is cognizable under the PCRA, regardless of the title given to the
petition, the court must analyze the petition under the PCRA.
Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013).
In his instant petition, Appellant challenged the legality of his
sentence. This claim falls under the auspices of the PCRA. Commonwealth
v. Jackson, 30 A.3d 516 (Pa.Super. 2011). Accordingly, the lower court
properly treated Appellant’s “Memorandum of Fact and Law Retroactively
Relief, Resentencing, Modification and Reconsideration of Sentencing
(Evidentiary Hearing)” as a PCRA petition; more particularly, the lower court
properly treated the petition as Appellant’s second PCRA petition.
With regard to petitions filed under the PCRA, as this Court has
observed:
The filing mandates of the PCRA are jurisdictional in nature and
are strictly construed. 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
-4-
J-S24032-17
scope of review plenary. An untimely petition renders this Court
without jurisdiction to afford relief.
Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must
determine whether Appellant’s March 24, 2016, petition was timely filed
under the PCRA.
The most recent amendments to the PCRA, effective January 19, 1996,
provide that a PCRA petition, including a second or subsequent petition, shall
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, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
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). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
-5-
J-S24032-17
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).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).
In the case before us, this Court affirmed Appellant’s judgment of
sentence on March 23, 1999, and our Supreme Court denied Appellant’s
petition for allowance of appeal on September 30, 1999. Appellant did not
file a petition for a writ of certiorari with the U.S. Supreme Court. Therefore,
his judgment of sentence became final on or about December 30, 1999,
ninety days after our Supreme Court denied Appellant’s petition for
allowance of appeal and the time for filing a petition for writ of certiorari
expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13 (providing “a
petition for a writ of certiorari seeking review of a judgment of a lower state
court that is subject to discretionary review by the state court of last resort
is timely when it is filed with the Clerk within 90 days after entry of the
order denying discretionary review [ ]”). Appellant, thus, had until
approximately December 30, 2000, to file a timely PCRA petition. His
instant petition, filed on March 24, 2016, is patently untimely.
This does not end our inquiry, however, as Appellant alleges he is
entitled to the “new constitutional right” exception based on the U.S.
Supreme Court’s decisions in Alleyne, supra, and Montgomery, supra.
-6-
J-S24032-17
To invoke the “new constitutional right” exception of 42 Pa.C.S.A. §
9545(b)(1)(iii), the petitioner must plead and prove 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 period
provided in this section and has been held by that court to apply
retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). Moreover, 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).
With regard to the application of Montgomery, we find Appellant met
the initial 60-day threshold. The U.S. Supreme Court filed its opinion in
Montgomery on January 25, 2016, and Appellant filed the instant PCRA
petition on March 24, 2016. Accordingly, Appellant asserted his timeliness
exception within sixty days of the date the claim could have been presented.
42 Pa.C.S.A. § 9545(b)(2); Commonwealth v. Secreti, 134 A.3d 77, 80
(Pa.Super. 2016) (“When the exception asserted is Section 9545(b)(1)(iii),
the 60–day rule runs from the date of the germane decision.”) (citation
omitted)).
However, we conclude the dictates of Montgomery are inapplicable to
Appellant. In Montgomery, the High Court held that its ruling in Miller v.
Alabama, 132 S.Ct. 2455 (2012), is to be given retroactive effect on
collateral review. Miller, which was issued on June 25, 2012, held that it is
unconstitutional for state courts to impose an automatic life sentence
-7-
J-S24032-17
without possibility of parole upon a homicide defendant for a murder
committed while the defendant was a juvenile. In the case sub judice,
Appellant, who was born in October of 1959, was not a juvenile when he
committed his crimes in June of 1995. Accordingly, Appellant has failed to
plead and prove he is entitled to the new constitutional right exception in
light of Montgomery.
Appellant additionally asserts that he is entitled to the “new
constitutional right” exception of 42 Pa.C.S.A. § 9545(b)(1)(iii), in light of
the U.S. Supreme Court’s opinion in Alleyne, wherein the High Court held
that any fact, other than a prior conviction, that triggers application of a
mandatory minimum sentence must be proven beyond a reasonable doubt
before the factfinder.
We conclude Appellant has not met the initial 60-day threshold.
Alleyne was decided on June 17, 2013, and Appellant filed the instant PCRA
petition on March 24, 2016. Accordingly, Appellant has not asserted his
timeliness exception within sixty days of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2). Further, to the extent Appellant
believes the Supreme Court’s retroactivity analysis in Montgomery renders
Alleyne retroactive, we note that neither the U.S. Supreme Court nor the
Pennsylvania Supreme Court has held that Alleyne applies retroactively to
untimely PCRA petitions. Indeed, our Supreme Court recently held that
Alleyne does not apply retroactively to cases on collateral review where, as
-8-
J-S24032-17
here, the petitioner’s judgment of sentence had already become final.
Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016).5
Accordingly, because Appellant has not established any of the
timeliness exceptions to the PCRA time-bar, the lower court lacked
jurisdiction to address his claims, and we affirm the dismissal of Appellant's
pro se petition.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
____________________________________________
5
To the extent Appellant suggests his sentence is illegal, and thus not
subject to the PCRA’s time restrictions, we note that our Supreme Court has
specifically held that “[a]lthough legality of sentence is always subject to
review within the PCRA, [legality of sentencing] claims must still first satisfy
the PCRA’s time limits or one of the exceptions thereto.” Commonwealth
v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999). That is, an illegal
sentencing claim does not operate as an independent exception to the
PCRA’s jurisdictional time-bar.
-9-
J-S24032-17
- 10 -
Com. v. Monroe, E.
Combined Opinion