Com. v. Gillard, A.

J-S36045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTHONY GILLARD :
:
Appellant : No. 2738 EDA 2017
Appeal from the PCRA Order July 25, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0635791-1990
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED OCTOBER 16, 2018
Appellant, Anthony Gillard, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed as untimely his
serial petition brought pursuant to the Post Conviction Relief Act (“PCRA”) at
42 Pa.C.S.A. §§ 9541-9546. On December 18, 1990, following a bench trial,
the court convicted Appellant of first-degree murder and possessing an
instrument of crime (“PIC”). The court sentenced Appellant that same day to
a mandatory life sentence without parole for the murder conviction and a
concurrent sentence of one to two years’ imprisonment for PIC. This Court
affirmed the judgment of sentence on February 13, 1992. Appellant sought
no further review, so the judgment of sentence became final on or about
Monday, March 16, 1992. Between 1992 and 2014, Appellant filed numerous
unsuccessful petitions for collateral relief. Appellant filed his current petition
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on April 4, 2014, followed by various supplemental petitions, which the court
treated under the PCRA. The court issued notice on May 31, 2017, of its intent
to dismiss without a hearing, per Pa.R.Crim.P. 907; Appellant filed several pro
se responses to the notice. On July 25, 2017, the court denied collateral relief.
Appellant timely appealed pro se on August 15, 2017. No concise statement
of errors complained of on appeal per PA.R.A.P. 1925(b) was ordered or filed.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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 time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited circumstances
to excuse the late filing of a petition; a petitioner asserting a timeliness
exception must file a petition within 60 days of when the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, the judgment of sentence became final on or about Monday,
March 16, 1992, upon expiration of the thirty days to file a petition for
allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113. Appellant
filed his current petition on April 4, 2014, which he concedes is patently
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untimely. Attempting to satisfy a statutory exception,1 he cites Alleyne v.
United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) to
challenge the sentence as illegal. Nevertheless, Alleyne does not apply
retroactively on collateral review to this judgment of sentence, which became
final more than twenty years before Alleyne was decided. See
Commonwealth v. Washington, 636 Pa. 301, 142 A.3d 810 (2016) (holding
Alleyne does not apply to sentences which became final before Alleyne was
decided). Further, Alleyne does not currently serve as an exception to the
PCRA time-bar. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super.
2014) (holding petitioner cannot use Alleyne to satisfy “new constitutional
right” exception to PCRA timeliness requirements). Appellant analogizes to
Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)
and Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d
599 (2016) to argue for resentencing relief under Commonwealth v. Batts,
620 Pa. 115, 66 A.3d 286 (2013) and Commonwealth v. Batts, 640 Pa. 401,
163 A.3d 410 (2017). Both Batts cases, however, addressed the
resentencing of juveniles who had received life sentences without parole; the
cases do not apply here. Thus, Appellant’s current PCRA petition remains
time-barred. Accordingly, we affirm.
Order affirmed.
____________________________________________
1Appellant offers a convoluted combination of the governmental interference
and new constitutional rights exceptions to the statutory time bar.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/18
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