J-S84008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SAHEED M. STONE

                            Appellant               No. 1472 EDA 2016


                  Appeal from the PCRA Order April 18, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0008090-2008


BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 11, 2017

        Appellant, Saheed M. Stone, appeals pro se from the order entered on

April 18, 2016, which dismissed his second petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On July 30, 2009, a jury found Appellant guilty of possessing cocaine

with the intent to deliver (“PWID”).1 Prior to sentencing, the Commonwealth

notified Appellant that, in accordance with the then-operable 18 Pa.C.S.A.

§ 7508(a)(3)(i), it intended to seek the imposition of the mandatory

minimum sentence of three years in prison, as Appellant was found guilty of

possessing 7.19 grams of cocaine with the intent to distribute. 2 On October
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1
    35 P.S. § 780-113(a)(30).
2
 In accordance with Alleyne v. United States, ___ U.S. ___, 133 S. Ct.
2151 (2013), this Court subsequently held that 18 Pa.C.S.A. § 7508 was
(Footnote Continued Next Page)


* Former Justice specially assigned to the Superior Court.
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2, 2009, the trial court sentenced Appellant to serve a term of six to 20

years in prison for his PWID conviction.

        This Court affirmed Appellant’s judgment of sentence on August 2,

2010 and, on March 16, 2011, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Stone, 11
A.3d 1007 (Pa. Super. 2010) (unpublished memorandum) at 1-6, appeal

denied, 20 A.3d 487 (Pa. 2011).

        On March 27, 2012, Appellant filed his first PCRA petition and the

PCRA court appointed counsel to represent Appellant in the proceedings.

The PCRA court later denied Appellant’s post-conviction collateral relief and,

on April 8, 2013, this Court affirmed the PCRA court’s order. Our Supreme

Court denied Appellant’s petition for allowance of appeal on September 12,

2013.      Commonwealth v. Stone, 75 A.3d 547 (Pa. Super. 2013)

(unpublished memorandum) at 1-7, appeal denied, 74 A.3d 1031 (Pa.

2013).

        On March 9, 2016, Appellant filed his second PCRA petition.        As the

PCRA court ably summarized:

          [Within Appellant’s second PCRA petition, Appellant claimed
          that he was serving an illegal sentence, as he was
          sentenced pursuant to the now-unconstitutional mandatory
          minimum sentencing statute at 18 Pa.C.S.A. § 7508.
          Further, Appellant] implicitly acknowledge[d that his petition
                       _______________________
(Footnote Continued)

unconstitutional.      See Commonwealth v. Mosley, 114 A.3d 1072 (Pa.
Super. 2015).



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        was untimely]; however, he attempted to invoke the [newly
        recognized] constitutional right timeliness exception at [42
        Pa.C.S.A. § 9545(b)(1)(iii), arguing that based upon the
        holding of Montgomery v. Louisiana, ___ U.S. ___, 136
S. Ct. 718 (2016)], he is eligible [for] the retroactive
        application of [Alleyne v. United States, ___ U.S. ___,
        133 S. Ct. 2151 (2013)]. . . .

        [The PCRA court held that Appellant’s petition was untimely]
        because Montgomery v. Louisiana had no bearing on
        [Appellant’s] case[; indeed, Montgomery held that Miller
        v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012) was]
        entitled to retroactive application [to] cases on collateral
        review. [Appellant] was neither a juvenile at the time of his
        crime [nor] was he sentenced to life imprisonment without
        parole. . . .

        Accordingly, [the PCRA] court issued a pre-dismissal notice
        on March 15, 2016, notifying [Appellant] of [the PCRA]
        court’s intention to dismiss his petition. . . . [Appellant] did
        not respond [to the notice and,] on April 18, 2016, [the
        PCRA] court issued a final order [dismissing Appellant’s
        second PCRA petition].

PCRA Court Opinion, 7/6/16, at 2-3 (some internal capitalization omitted).

      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 claim, 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

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        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).

      In the present case, the PCRA court found Appellant’s petition to be

untimely filed. PCRA Court Opinion, 7/6/16, at 2-3. We agree. Appellant’s

judgment of sentence became final at the end of the day on June 14, 2011,

which was 90 days after the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal and Appellant’s time for filing a petition for

writ of certiorari to the United States 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 U.S. Sup. Ct. R. 13.1. 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 June 14, 2012 to file a



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timely PCRA petition. Since Appellant filed his current petition on March 9,

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:

        (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:




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        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

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 because he was sentenced to a mandatory minimum term

of incarceration under 18 Pa.C.S.A. § 7508 and, in Alleyne, the United

States Supreme Court effectively rendered Section 7508 unconstitutional.

Moreover, Appellant claims that the United States Supreme Court’s opinion

in Montgomery v. Louisiana rendered Alleyne’s holding retroactive to his

case. See Appellant’s Second PCRA Petition, 3/9/16, at 1-5.




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        Appellant’s claim fails because Montgomery did not concern Alleyne

at all. Rather, Montgomery concerned the retroactive application of Miller

v. Alabama – and Miller v. Alabama 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 the non-homicide

offense of possession of cocaine with the intent to deliver, and Appellant did

not receive a mandatory sentence of life in prison without the possibility of

parole. Thus, neither Montgomery nor Miller apply to the case at bar.

        Further, any claim under Alleyne immediately fails, as Appellant did

not raise his Alleyne claim “within 60 days of the date the claim could have

been presented.”        42 Pa.C.S.A. § 9545(b)(2).3    Rather, the first time

Appellant raised his Alleyne claim was in his March 9, 2016 PCRA Petition –

which was over two years after the United States Supreme Court decided

Alleyne.4     See Appellant’s Second PCRA Petition, 3/9/16, at 1-5.      Thus,
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3
  Moreover, neither the United States Supreme Court nor our Supreme Court
has held that Alleyne applies retroactively to cases on collateral review. As
such, for this independent reason, Alleyne does not satisfy the newly-
recognized constitutional right exception set forth at § 9545(b)(1)(iii).
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (“This
Court has recognized that a new rule of constitutional law is applied
retroactively to cases on collateral review only if the United States Supreme
Court or our Supreme Court specifically holds it to be retroactively applicable
to those cases”).
4
    The United States Supreme Court decided Alleyne on June 17, 2013.




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Appellant failed to properly plead the newly-recognized constitutional right

exception to the PCRA’s one-year time-bar. See Commonwealth v. Boyd,

923 A.2d 513, 517 (Pa. Super. 2007) (“[w]ith regard to [the newly-

]recognized constitutional right [exception], . . . the [60-]day period begins

to run upon the date of the underlying judicial decision”).

       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.”5

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: 1/11/2017


____________________________________________


5
  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
the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (emphasis added).



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