Com. v. Payne, R.

J-S24024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT PAYNE
Appellant No. 1132 WDA 2016
Appeal from the PCRA Order entered July 13, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0007237-2004
BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JUNE 14, 2017
Appellant, Robert Payne, appeals pro se from the July 13, 2016 order
entered in the Court of Common Pleas of Allegheny County, denying his
petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. Appellant argues the PCRA court erred in
denying his PCRA petition as untimely. We disagree. Accordingly, we affirm
the order.
The underlying facts and procedural history are undisputed. Briefly,
following a jury trial, on October 26, 2006, Appellant was sentenced to an
aggregate term of imprisonment of 21-50 years in connection with several
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*
Former Justice specially assigned to the Superior Court.
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sexual offenses involving an 11-year-old girl.1 Appellant timely appealed to
this Court, but the appeal was discontinued on May 24, 2007.
Subsequently, Appellant filed his first timely PCRA petition, which the PCRA
court dismissed on July 31, 2009. On appeal, we affirmed the dismissal on
September 13, 2010. See Commonwealth v. Payne, No. 1499 WDA 2009
(Pa. Super. filed September 13, 2010). On August 19, 2015, Appellant filed
the instant PCRA petition, which the PCRA court dismissed on July 13, 2016.
This appeal followed.
Appellant argues the PCRA court erroneously dismissed the instant
PCRA petition as untimely.2 In his view, the instant petition is timely under
Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that a jury must
find beyond a reasonable doubt any fact increasing a mandatory minimum
sentence), in light of Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
We disagree.
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1
Appellant was convicted of rape of a child, 18 Pa.C.S.A. § 3121(c),
involuntary deviate sexual intercourse with a child, 18 Pa.C.S.A. § 3123(b),
aggravated indecent assault, 18 Pa.C.S.A. § 3125, statutory sexual assault,
18 Pa.C.S.A. § 3122.1, indecent assault, endangering the welfare of a child,
18 Pa.C.S.A. § 4304(a), and corruption of minors, 18 Pa. C.S.A. § 6301.
2
Appellant raises additional claims of illegality of sentence and ineffective
assistance of counsel. Appellant’s Brief at 4. Because, as explained below,
we conclude the instant PCRA petition is untimely, we will not address the
merits of the petition.
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“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA
petitions, “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final” unless an exception to
timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006) (first alteration in original) (internal citations and
quotation marks omitted). As timeliness is separate and distinct from the
merits of Appellant’s underlying claims, we first determine whether this
PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008) (consideration of Brady claim separate from
consideration of its timeliness). The timeliness requirements of the PCRA
petition must be met, even if the underlying claim is a challenge to the
legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60
(Pa. 2007) (“Although 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”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999)).
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As noted, Appellant argues the PCRA court erroneously dismissed the
instant PCRA petition as untimely. Appellant avers that the instant petition
is timely under Alleyne in light of Montgomery. The claim is without
merit. It is well-established that Alleyne does not apply retroactively to
cases, like the instant one, pending on collateral review. See
Commonwealth v. Washington, 142 A.3d 810, 819-20 (Pa. 2016).
Appellant’s judgment of sentence was final before the United States
Supreme Court handed down Alleyne; therefore, Alleyne does not apply to
his case. Because Alleyne does not apply to Appellant’s case, his sentence
is not illegal. Id. at 815 (“[I]f a new constitutional rule does not apply, it
cannot render an otherwise final sentence illegal.”).
Similarly, Montgomery is of no help to Appellant’s timeliness
argument. In Montgomery, the Unites States Supreme Court held that
Miller v. Alabama, 132 S.Ct. 2455 (2012)3 established a new substantive
rule that, under the United States Constitution, must be retroactive in cases
on state collateral review. Montgomery, 136 S.Ct. at 736. However, there
is nothing in Montgomery that could support Appellant’s claim that Alleyne
is applicable retroactively to matters pending on collateral review.
Additionally, Appellant does not argue he has a claim under Miller.
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3
In Miller, the United States Supreme Court held that “mandatory life
without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and unusual’
punishments.” Miller, 132 S.Ct. at 2460.
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Accordingly, because neither Alleyne nor Montgomery provides any
support for Appellant’s timeliness argument, we must conclude that the
PCRA court correctly found the instant petition untimely. Because the
instant petition is untimely, we cannot review the merits of Appellant’s
contentions. See Chester, supra (courts have no jurisdiction to review the
merits of an untimely PCRA petition); Fahy, 737 A.2d at 224 (same).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
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