Case Information

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

STEVEN DENNIS FREDERICK,

Appellant No. MDA 2016 Appeal from the Order July 7, 2016 the Court of Common Pleas Berks County Criminal Division at No.: CP- 06 -CR- 0000743 -1975

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.* FILED JANUARY

MEMORANDUM BY PLATT, J.:

Steven Dennis Frederick, appeals, se, from the order of 2016, dismissing, without hearing, second filed Post Conviction Relief Act (PCRA), §§ 9541- Because the petition untimely without applicable exception, we affirm.

We take the underlying facts procedural history this matter from our independent review certified record. May jury convicted Appellant of murder degree, burglary, aggravated assault, robbery, theft unlawful taking. June trial sentenced life prison without possibility of parole. * Retired Senior Judge assigned to the Superior Court.

On May 27, 1983, the Pennsylvania Supreme Court affirmed the of sentence a per curiam order.' (See Commonwealth v. Frederick, A.2d 752 (Pa. 1983)). Appellant did not file petition for a writ of certiorari States Supreme Court.

Appellant filed counseled petition 1988. The trial court denied petition on March 29, 1989. This Court affirmed the denial of Commonwealth Frederick, 580 A.2d petition on July 23, 1990. (Pa. Super. 1990) (unpublished memorandum)). Subsequently, the Pennsylvania Supreme Court affirmed per curiam. (See v. Frederick, 601 A.2d 1992)). 2016, acting se, filed instant PCRA seeking to vacate sentence

Louisiana, 136 S.Ct. (2016). June 21, 2016, the court issued notice of intent dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 907(1). Appellant response July 1, On 7, court dismissed the as untimely. The instant, timely appeal followed.2

' Appellant appealed directly Pennsylvania Supreme Court. Appellate Court Jurisdiction Act of July 31, 1970, P.L. No. Art. II, § 202, repealed reenacted part, Act of September P.L. No. 137, 42 722.

[2] did order file concise statement of errors complained appeal. Pa.R.A.P. 1925(b). filed (Footnote Continued Next Page)

J-S87010-16 appeal, raises the following question for our review: [PCRA] court abuse its discretion denying

I. Did Appellant's subsequent PCRA invoking 42 Pa.C.S.[A.] § 9545(b)(1)(iii) where Appellant's PCRA filed sixty [] days the wake of [Montgomery, supra] where the [United States Supreme Court] utilized the 1880 holding of Ex [P]arte Siebold, 100 U.S. 371 (1880) as genesis of a newly recognized constitutional right made applicable [states] the Supremacy Clause of the U.S. Const. art. VI, cl. where Appellant's is void ab initio where statute (18 Pa.C.S.[A.] 1311) utilized as statutory authorization by the sentencing court found unconstitutional entirety thus manifestly warranting discharge and /or resentencing?

(Appellant's Brief, at 4).

Our standard of review for order denying PCRA relief is well -settled: This Court's standard of review regarding PCRA court's order whether determination PCRA supported the evidence of record free of legal error. Great deference granted findings court, and these findings will not disturbed unless they have no support the certified record... . Commonwealth Carter, A.3d Super. 2011) (citations quotation marks omitted). "if [p]etition untimely, trial court no jurisdiction entertain petition." Hutchins, 760 A.2d 53 (Pa. Super. 2000) (citations omitted).

Here, filed 2016. PCRA provides "[a]ny this subchapter, including second or (Footnote Continued) se Rule 1925(b) statement id. August 2, court opinion. Pa.R.A.P. 1925(a).

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subsequent petition, shall one year of the date the judgment becomes final[.]" Pa.C.S.A. § 9545(b)(1). of sentence became final July 26, 1983, after sixty -day period to file petition for writ of certiorari with United States Supreme Court expired. former U.S.Sup.Ct.R. 20.

Because did not file current petition until March 16, petition facially untimely. See § 9545(b)(1). Thus, must plead and prove falls of the exceptions at Section 9545(b) PCRA. See id.

Section 9545 provides can still consider untimely where the petitioner successfully proves that: (i) the failure to raise claim previously the result interference by government officials the presentation of claim violation of the Constitution or laws of this or the Constitution or laws United States; (ii) the facts upon which the claim predicated were unknown petitioner could have been ascertained by the exercise of due diligence; or

(iii) the right asserted constitutional right was recognized the Supreme Court of the States or the Supreme Court of Pennsylvania after the time period provided court this section and has been held by apply retroactively.

Id. § 9545(b)(1)(i)- (iii). Further, petitioner who wishes invoke any of the above exceptions must file the "within [sixty] days of the date Id. 9545(b)(2). The the claim could have been presented." Pennsylvania Supreme Court repeatedly stated it appellant's

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burden to plead and prove that above -enumerated exceptions applies. See, e.g., Abu -Jamal, 941 A.2d 2008), cert. denied, 555 U.S. 916 (2008).

In the instant matter, Appellant appears contend timely under Section 9545(b)(1)(iii), specifically United States Supreme Court's decision Montgomery, supra: not applicable juvenile offender's (sic) only but any and illegal and /or [c]itizens serving an

all United States unconstitutionally impose of sentence of (sic) imprisonment where the [trial] never had statutory authority (jurisdiction) impose punishment where the punishment was not, fact and law, authorized duly promulgated substantive law would merit relief from the unconstitutionality imposed sentence.

(Appellant's Brief, 7). We disagree.

Here, Appellant does not argue juvenile at the time he committed the offense thus eligible for relief Miller Alabama, 132 S.Ct. 2455 (2012). (See Appellant's Brief, at 10). Rather, argues Montgomery requires all new substantive rules of constitutional law retroactive cases regarding allegedly unconstitutional sentences.3 id. 11). Montgomery, supra, has no In Montgomery, States Supreme bearing on case. We note met the sixty -day statutory filing requirements of PCRA. 9545(b)(2). decided on January revised January instant petition sixty -day limit.

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Court held that decision Miller, supra applies retroactively to cases on collateral review. See Montgomery, supra at 736. Miller held that it unconstitutional for state courts to impose an automatic life sentence without possibility of parole upon homicide defendant for murder committed while the defendant juvenile. Miller, supra at 2460. Miller inapplicable who adult at the time PCRA Court Order Notice of Intent to committed murder. Dismiss, 6/21/16, at 4). Further, Appellant pointed any law support of his contention applies to all cases involving allegedly unconstitutional sentences. Therefore, we reject Appellant's contention eligible for relief Montgomery, conclude court properly denied PCRA petition.4

Thus, untimely no statutory exception time -bar applying. Hutchins, supra Accordingly, we affirm the order of the court.

Order affirmed. Moreover, we note fact challenges the legality his sentence does not allow him to evade PCRA's timeliness requirements. In Fahy, 737 A.2d 214 1999), the Pennsylvania Supreme Court rejected this contention. Fahy Court stated, "[a]lthough legality always subject review PCRA, claims must still satisfy the PCRA's time limits or of the exceptions thereto." Fahy, supra (citation omitted). Thus, cannot elude the PCRA's timeliness requirements based on claim of illegal sentence. See id.

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Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 1/17/2017