J-S27030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RODERICK BALL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2512 EDA 2016

Appeal from the PCRA Order July 19, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1111572-2000

BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED APRIL 28, 2017

Roderick Ball appeals pro se from the order entered July 19, 2016, in 

the Court of Common Pleas of Philadelphia County that dismissed, as 

untimely, his second petition filed pursuant to the Pennsylvania Post 

Conviction Relief Act (PCRA).1 In this appeal, Ball challenges the PCRA 

court’s dismissal of his petition, and in support of his position cites the 

United States Supreme Court decision of Montgomery v. Louisiana, 135 S. 

Ct. 1546 (2015). Based upon the following, we affirm.

This Court previously summarized the background of this case, as 

follows.

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.
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On February 10, 2003, a jury convicted [Ball] of aggravated 

assault, recklessly endangering another person, violating the 

Uniform Firearms Act, possessing instruments of crime, and 

criminal conspiracy. On May 13, 2003, the trial court sentenced 

[Ball] to a term of fifteen to thirty years’ imprisonment.[2] [Ball] 

thereafter filed post-sentence motions, which the trial court 

denied on September 19, 2003. [Ball] did not file a direct 

appeal.

On March 24, 2005, [Ball] filed a “Motion to Reinstate 

Petitioner’s Appellate Rights Nunc Pro Tunc.” On May 18, 2005, 

the PCRA court scheduled a hearing for June 8, 2005, on [Ball’s] 

motion, which it aptly treated as a PCRA petition. ... However, 

the record contains no indication that such hearing took place. 

Rather, on June 12, 2006, [Ball] filed a pro se PCRA petition. On 

August 25, 2006, [Ball] filed an amended pro se PCRA petition.

On September 20, 2006, the PCRA court appointed counsel for 

[Ball]. Rather than filing an amended petition, PCRA counsel filed 

a motion to withdraw and a no-merit letter, on February 12, 

2007 .... On March 19, 2007, the PCRA court issued notice of its 

intention to dismiss [Ball’s] PCRA petition without a hearing, 

pursuant to Pa.R.Crim.P. 907. On May 15, 2007, the PCRA court 

entered an order dismissing [Ball’s] PCRA petition as untimely 

and permitting PCRA counsel’s withdrawal.

Commonwealth v. Ball, 951 A.2d 1204 [2077 EDA 2007] (Pa. Super. 

2008) (unpublished memorandum). This Court affirmed the dismissal of 

Ball’s first PCRA petition, see id., and the Pennsylvania Supreme Court 

denied allowance of appeal. Commonwealth v. Ball, 956 A.2d 431 (Pa. 

2008). On March 25, 2016, Ball filed this second PCRA petition. The PCRA 

court concluded the petition was untimely, and dismissed the petition on July 

____________________________________________

2 The PCRA court’s opinion states that Ball was sentenced to 161⁄2 to 35 

years’ imprisonment. See PCRA Court Opinion, 10/3/2016, at 1. The 

certified record does not reveal how the individual sentences were 

aggregated.
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19, 2016. This timely appeal followed, in which Ball argues that his 

sentence is illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013), 

the holding of which he contends was made retroactive under Montgomery

v. Louisiana, 136 S. Ct. 718 (2016).3 See Ball’s Brief at 6.

“Our review of a PCRA court’s decision is limited to examining 

whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error.” Commonwealth v. Cox, 146 A.3d 221, 226 n.9 (Pa. 

2016) (citation omitted).

The PCRA’s timeliness requirements are jurisdictional; therefore, 

a court may not address the merits of the issues raised if the 

petition was not timely filed. The timeliness requirements apply 

to all PCRA petitions, regardless of the nature of the individual 

claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).

A PCRA petition must be filed within one year of the date the 

underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). In our prior 

decision affirming the denial of relief on Ball’s first PCRA petition, we agreed 

with the determination of the PCRA court that the petition was untimely 

filed. See Ball, supra, 951 A.2d 1204 (Pa. Super. 2008) (unpublished 

memorandum). The same is true here. Ball’s judgment of sentence became 

final on Monday, October 20, 2003, 30 days after the trial court’s denial of 

his post-trial motions, when the time for filing a direct appeal had expired. 

Therefore, Ball had until October 20, 2004, to file a timely PCRA petition. 

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3 The PCRA court did not order Ball to file a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal.
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See id. Accordingly, the petition presently before us, filed 121⁄2 years after 

the judgment became final, is facially untimely. 

Nevertheless, an untimely PCRA petition may still be considered if one 

of the three time-for-filing exceptions applies. See 42 Pa.C.S. § 

9545(b)(1)(i)-(iii). A PCRA petition alleging any of the exceptions under 

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim 

could have first been brought. 42 Pa.C.S. § 9545(b)(2).

Here, Ball argues his claim is cognizable under the newly recognized 

constitutional right exception, which permits the filing of an otherwise 

untimely petition when “the right asserted is a constitutional right that was 

recognized by the Supreme Court of the United States ... after the time 

period provided in this section and has been held by that court to apply 

retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii). See Ball’s Brief at 8. Ball claims 

the United States Supreme Court’s recent decision in Montgomery allows 

him to seek relief under the United States Supreme Court decision in 

Alleyne.

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In Alleyne, the United States Supreme Court held that “any fact that, 

by law, increases the penalty is an ‘element’ that must be submitted to the 

jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155. In 

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4 Ball filed the present PCRA petition on March 25, 2016, within 60 days of 

the Montgomery decision, which was handed down on January 25, 2016. 

See 42 Pa.C.S. § 9545(b)(2).
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Pennsylvania, Alleyne triggered a string of cases finding certain mandatory 

minimum sentencing schemes unconstitutional. See, e.g., Commonwealth 

v. Hopkins, 117 A.3d 247 (Pa. 2015) (finding mandatory minimum for 

Drug-Free School Zones violation unconstitutional); see also

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (applying 

Alleyne and holding 42 Pa.C.S. §§ 9712 and 9713 unconstitutional), appeal 

denied, 124 A.3d 309 (Pa. 2015). 

Ball claims he “falls within the purview of the section of the required 

[m]andatory [m]inimum [s]entence as expressed under [42 Pa.C.S. § 9712] 

.....” Ball’s Brief at 18. See also id. at 20. However, the Pennsylvania 

Supreme Court, in Commonwealth v. Washington, 142 A.3d 810 (Pa. 

2016) explicitly held that “Alleyne does not apply retroactively to cases 

pending on collateral review[.]” Id. at 820. Nevertheless, Ball argues the 

United States Supreme Court’s recent decision in Montgomery somehow 

causes Alleyne to be retroactive, explaining:

The petitioner asserts that the Montgomery, supra, ruling is 

based on retroactivity being applicable to substantive rules of 

constitutional law. The Montgomery ruling is the petitioner’s 

primary asserted claim in this instant matter. The United States 

Supreme Court, in its ruling of Montgomery, did not limit the 

stipulations that define a substantive rule to “solely” applying to 

that of the Miller v. Alabama, 132 S.Ct. 2455 (2012) case 

[discussed in Montgomery]. Thereby, “any” case in which its 

claim pertains to that of a “substantive rule of constitutional law” 

must be given retroactive effect. With that being definitively 

established, the claim raised and decided within Alleyne v. 

United States, ... so happens to be, in fact, an issue that 

pertains to the definition of a “substantive rule” which can 

therefore be raised by what Montgomery has established. 
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Ball’s Brief at 18. We disagree.

In Montgomery, the Supreme Court held that its prior decision in 

Miller v. Alabama, supra — which declared that mandatory life without 

parole for juvenile homicide offenders violates the Eighth Amendment's 

prohibition on cruel and unusual punishments — constituted a new 

substantive rule that must be applied retroactively to cases on collateral 

review. Ball’s reliance on Montgomery is misplaced because, as mentioned 

above, subsequent to and mindful of the Montgomery decision, the 

Pennsylvania Supreme Court in Washington held that Alleyne does not

apply retroactively to cases on collateral review. See Washington, supra, 

142 A.3d at 818 (explaining, inter alia, “[T]he Alleyne rule neither alters the 

range of conduct or the class of persons punished by the law. See

Montgomery, 136 S. Ct. at 729-30.”). To date, there is no United States 

Supreme Court decision holding that Alleyne applies retroactively to 

untimely PCRA petitions. Accordingly, no relief is warranted.

Because Ball’s petition does not satisfy any of the time-for-filing 

exceptions, we agree with the ruling of the PCRA court that dismissed the 

petition as untimely filed.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2017