Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

DARYL PITTS,

Appellant No. EDA 2016 Appeal from the Order June 21, 2016 the Court of Common Pleas Philadelphia County Criminal Division at Nos.: CP-51-CR-1206131-1997

CP-51-CR-1206141-1997

BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.* FILED APRIL 04, 2017

MEMORANDUM BY PLATT, J.: Appellant, Daryl Pitts, appeals pro se from the June 21, order dismissing his fourth serial pursuant Post Conviction Relief Act (PCRA), §§ 9541-9546, untimely. We affirm.

We take the factual and procedural history this matter from our review of the certified record. On 1999, jury convicted Appellant burglary, theft, robbery.' October 1999, sentenced aggregate term of less than thirty nor more than sixty years' imprisonment. Court affirmed his conviction November and allowance of April * Retired Senior Judge assigned to the Superior Court.

" §§ 3502, 3921, 3701, respectively. (See Commonwealth v. Pitts, 768 A.2d 886 (Pa. Super. 2000),

appeal denied, 775 A.2d 805 (Pa. 2001)). filed PCRA petition on June 4, 2001. On January 30,

2002, the PCRA court dismissed petition as meritless permitted counsel to withdraw. This Court remanded the matter, concluding that counsel's Finley2 letter did address all Appellant's issues. (See Commonwealth v. Pitts, No. 552 EDA 2002, unpublished memorandum at *9 (Pa. Super. filed Nov. 14, 2002)). The PCRA court appointed new counsel, who filed amended petition addressing concerns, which PCRA court dismissed on May 7, 2004. This Court affirmed the dismissal on August 25, 2005, Appellant's petition allowance of on May 2006. (See v. Pitts, 884 A.2d (Pa. Super. 2005), appeal denied, 899 A.2d 1123 (Pa. 2006)).

Thereafter, Appellant filed second PCRA on which the court dismissed untimely. Court affirmed the dismissal February (See v. Pitts, A.3d (Pa. Super. 2015) (unpublished memorandum)). Appellant his third August 2015, which the court dismissed as untimely. Appellant not appeal. Finley, 550 A.2d 213 1988) (en banc);

see also Commonwealth Turner, 544 A.2d 927 1988).

Appellant the instant PCRA petition on March 23, 2016. The PCRA court issued notice of intent to dismiss on June 2016. See Pa.R.Crim.P. 907(1). Appellant responded on June 2016. The PCRA court dismissed the petition on 2016. timely appeal followed.3 raises two issues appeal:

I. Was PCRA court error summarily dismiss the PCRA [petition] in light of the announcement by the States Supreme Court [in] Montgomery Louisiana[, 136 S.Ct. 718 (2016)]?

II. Was the "[Commonwealth ]Lawson[, 549 A.2d 107 (Pa. 1988)]" miscarriage of justice standard of the PCRA available to the Appellant for relief under the provisions at § 9545(b)?

(Appellant's Brief, (most capitalization

We begin by addressing the timeliness of Appellant's instant PCRA petition.

Crucial to determination of any PCRA is the timeliness of the underlying petition. Thus, we must determine whether instant PCRA petition timely filed. The timeliness requirement for PCRA petitions is mandatory and jurisdictional nature, court may not ignore it order to reach merits petition. The question of whether a is timely raises question of law. Where petitioner raises questions of law, our standard of review de novo and our scope of review plenary.

A timely if it "filed within year of the date the judgment [of sentence] becomes final." § 9545(b)(1). "[A] judgment [of sentence] becomes final at the The court order Appellant file statement errors

complained appeal. See Pa.R.A.P. 1925(b). It issued opinion July Pa.R.A.P. 1925(a).

conclusion of direct review, including discretionary review the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review." Pa.C.S.A. § 9545(b)(3). . . . Brown, A.3d 491, 499 2016) (case

citations and some quotation marks omitted). Furthermore, "[a]lthough legality of sentence always subject review within the PCRA, claims must still satisfy the PCRA's time limits or of the exceptions thereto." Fahy, 737 A.2d 214, (citation judgment of sentence became final July ninety days after petition for allowance of not petition the United States Supreme Court a writ certiatori. See § 9545(b)(3); U.S. Sup. Ct. R. Appellant therefore had until July 2002 to file timely petition. 9545(b)(1). He the instant petition March 23, 2016. Thus, it was patently untimely.

An may considered if one of the following three exceptions applies:

(i) the failure to raise claim previously the result interference by government officials with 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 was recognized by the Supreme Court of the States or the Supreme Court of Pennsylvania after 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); see Brown, supra at If an exception applies, petitioner must file the "within [sixty] days of the date the claim could have been presented." 42 § 9545(b)(2). "[Our Supreme] Court has repeatedly stated is the appellant's burden to allege prove that of the timeliness exceptions applies." v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008) (citation claims the applicability of the newly recognized (See Brief, exception to bar. 11-15); 42 9545(b)(1)(iii). Specifically, he alleges that the

United States Supreme Court's decision Montgomery, supra (holding Miller v. Alabama, 132 S.Ct. 2455 (2012), should be applied retroactively), mandated retroactive application Alleyne v. United States, 133 S.Ct. (2013). (See Appellant's Brief, at 11-15). We disagree.

"[A] new rule of constitutional law applied retroactively to cases collateral review only if States Supreme Court or retroactively Pennsylvania Supreme Court specifically holds it applicable those cases." Whitehawk, 146 A.3d (citation omitted). Neither Court has held that Alleyne applied retroactively. Rather, our Supreme Court recently issued opinion Washington, 142 A.3d 2016),

- - wherein held "Alleyne does not apply retroactively to cases pending collateral review." Washington, supra at 820. argument that decision of the States Supreme Court Montgomery, supra, causes Alleyne to applied retroactively meritless. In Montgomery, the Supreme Court held "Miller announced substantive rule that retroactive cases collateral review." Montgomery, supra at 732. Its decision not concern Alleyne. Thus, Appellant has not met his burden of proving that Alleyne set forth new that applicable retroactively cases collateral review. See 9545(b)(1)(iii).

Accordingly, we conclude that has met his burden of proving petition fits within three exceptions PCRA's bar. Hawkins, supra at 1253; Fahy, supra Therefore, we affirm order of court.

Order affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 4/4/2017