J-S64031-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARLTON BRYANT,

Appellant No. 141 EDA 2016

Appeal from the PCRA Order December 7, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0209461-1998

CP-51-CR-0902151-1997

CP-51-CR-0902181-1997

CP-51-CR-0904981-1997

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 05, 2016

Appellant Carlton Bryant appeals pro se from the December 7, 2015, 

order entered in the Court of Common Pleas of Philadelphia County 

dismissing his petition filed under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546. We affirm. 

The relevant facts and procedural history are as follows: Appellant 

entered a plea of nolo contendere to ten counts of robbery, three counts of 

criminal conspiracy, and one count of carrying a firearm without a license. 

On November 6, 2000, the trial court imposed an aggregate sentence of 

191⁄2 to 40 years in prison, to be followed by 10 years of probation. 
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Appellant did not file an appeal to this Court; however, on July 27, 

2001, he filed a timely pro se PCRA petition, and counsel was appointed. In 

an amended PCRA petition, counsel sought to have Appellant’s direct appeal 

rights reinstated nunc pro tunc due to the ineffective assistance of trial 

counsel. On June 12, 2002, the PCRA court granted Appellant relief, and 

Appellant filed a counseled direct appeal nunc pro tunc. On July 23, 2004, 

this Court affirmed Appellant’s judgment of sentence. Commonwealth v. 

Bryant, No. 3559 EDA 2003 (Pa.Super. filed 7/23/04) (unpublished 

memorandum). Appellant did not file a petition for allowance of appeal with 

our Supreme Court. 

On August 11, 2014, Appellant filed a pro se PCRA petition, which was 

considered to be his first PCRA petition,1and the PCRA court appointed 

Douglas Earl, Esquire, (“PCRA counsel”) to represent Appellant. On July 23, 

2015, PCRA counsel filed a Turner/Finley2 no-merit letter and petition 

seeking to withdraw his representation. Therein, PCRA counsel averred that 

Appellant’s August 11, 2014, petition was untimely filed and, alternatively, 

____________________________________________

1

“This Court has explained that when a PCRA petitioner's direct appeal 

rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent 

PCRA petition will be considered a first PCRA petition[.]” Commonwealth 

v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (citations omitted). 

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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the issues which Appellant wished to raise lack merit. He further averred 

that he could not find any other issues of merit. 

On October 2, 2015, the PCRA court, indicating it agreed with PCRA 

counsel’s assessment of the case as set forth in his Turner/Finley no-merit 

letter, provided Appellant with notice of its intent to dismiss the PCRA 

petition without an evidentiary hearing. On October 13, 2015, Appellant 

filed a pro se response to the court’s notice of dismissal arguing, inter alia, 

that PCRA counsel “misinterpreted his PCRA petition.” 

On December 7, 2015, the PCRA court entered an order dismissing 

Appellant’s PCRA petition, and Appellant filed a timely pro se notice of 

appeal.3 By order filed on January 8, 2016, the PCRA court directed 

Appellant to file a statement pursuant to Pa.R.A.P. 1925(b), Appellant timely 

complied on January 25, 2016, and the PCRA court filed a responsive 

Pa.R.A.P. 1925(a) opinion concluding that Appellant’s PCRA petition was 

untimely filed. 

____________________________________________

3 Upon initial review of the instant appeal, we concluded that the record 

failed to reveal whether the PCRA court had permitted PCRA counsel to 

withdraw. Accordingly, on August 23, 2016, while retaining jurisdiction, we 

remanded this matter to the PCRA court for a determination as to PCRA 

counsel’s status. Upon remand, the PCRA court held a hearing at which the 

Commonwealth, PCRA counsel, and Appellant were present. Following the 

hearing, on October 31, 2016, the PCRA court filed an opinion explaining 

that, in its order filed on December 7, 2015, it had intended to grant PCRA 

counsel’s petition to withdraw his representation. 
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Preliminarily, we must determine whether Appellant’s instant PCRA 

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50 

(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is 

clear; we are limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and 

quotation marks omitted). 

Pennsylvania law makes it clear that no court has jurisdiction to hear 

an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective 

January 19, 1996, provide that a PCRA petition, including a second or 

subsequent petition, shall be filed within one year of the date the underlying 

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment 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 the time for seeking review.” 42 Pa.C.S.A. § 

9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA 

allow for very limited circumstances under which the late filing of a petition 

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a 

petition must allege and the petitioner must prove:

(i) the failure to raise a claim previously was the result of 

interference by government officials with the 
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presentation of the claim in violation of the Constitution 

or the law of this Commonwealth or the Constitution or

law of the United States;

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was 

recognized by the Supreme Court of Pennsylvania after 

the time period provide in this section and has been 

held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 

“We emphasize that it is the petitioner who bears the burden to allege 

and prove that one of the timeliness exceptions applies.” Commonwealth 

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted). 

Moreover, “the PCRA limits the reach of the exceptions by providing that a 

petition invoking any of the exceptions must be filed within 60 days of the 

date the claim first could have been presented.” Commonwealth v. 

Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42 

Pa.C.S.A. § 9545(b)(2). “When the exception asserted is Section 

9545(b)(1)(iii), the 60–day rule runs from the date of the germane 

decision.” Commonwealth v. Secreti, 134 A.3d 77, 80 (Pa.Super. 2016)

(citation omitted). 

In the case before us, this Court affirmed Appellant’s judgment of 

sentence on July 23, 2004, and Appellant did not file a petition for allowance 
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of appeal with our Supreme Court. Accordingly, his judgment of sentence 

became final on Monday, August 23, 2004,4 when the thirty-day time period 

for filing a petition for allowance of appeal with our Supreme Court expired. 

See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Appellant had one year 

from that date, or until August 23, 2005, to file a timely PCRA petition. See

42 Pa.C.S.A. § 9545(b). However, Appellant did not file his instant PCRA 

petition until August 11, 2014, and thus, it is patently untimely. See 42 

Pa.C.S.A. § 9545(b)(1).

This does not end our inquiry, however, as Appellant alleges he is 

entitled to the “new constitutional right” exception based on the U.S. 

Supreme Court’s decisions in Alleyne v. United States, 133 S.Ct. 2151 

(2013), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), as well as 

the Pennsylvania Supreme Court’s decision in Commonwealth v. Dickson, 

591 Pa. 364, 918 A.2d 95 (2007). 

With regard to Appellant’s attempt to invoke the “new constitutional 

right” exception on the basis of Alleyne,

5

the U.S. Supreme Court filed its 

____________________________________________

4 The thirtieth day fell on Sunday, August 22, 2004, thus extending the time 

for filing a petition for allowance of appeal to Monday, August 23, 2004. 

See 1 Pa.C.S.A. § 1908.

5

In Alleyne, the U.S. Supreme Court held that the constitutional jury trial 

right requires any fact, other than a prior conviction, that triggers a 

mandatory minimum sentence to be proven beyond a reasonable doubt 

before the finder of fact. Alleyne is an application of the Court's prior 

pronouncement in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), which 

(Footnote Continued Next Page)
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opinion on June 17, 2013; however, Appellant filed his instant PCRA petition 

on August 11, 2014. Thus, he did not meet his initial burden of proving he 

presented his claim within 60 days of when the claim first could have been 

presented. See Secreti, supra.

Moreover, although in Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super. 2014) (en banc), this Court noted that Alleyne will be applied to 

cases pending on direct appeal when Alleyne was issued, we have declined 

to construe Alleyne as applying retroactively to cases in which the judgment 

of sentence has become final. As we noted in Commonwealth v. Miller, 

102 A.3d 988 (Pa.Super. 2014):

Even assuming that Alleyne did announce a new constitutional 

right, neither our Supreme Court, nor the United States 

Supreme Court has held that Alleyne is to be applied 

retroactively to cases in which the judgment of sentence had 

become final. This is fatal to [an] [a]ppellant's argument 

regarding the PCRA time-bar. This Court has recognized that a 

new rule of constitutional law is applied retroactively to cases on 

collateral review only if the United States Supreme Court or our 

Supreme Court specifically holds it to be retroactively applicable 

to those cases.

Miller, 102 A.3d at 995 (citations omitted). Indeed, our Supreme Court 

recently held that “Alleyne does not apply retroactively to cases pending on 

collateral review.” Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 

(Footnote Continued) _______________________

ruled that any fact that increases a maximum sentence must be found by 

the factfinder beyond a reasonable doubt or admitted by the defendant 

during his guilty plea. 
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810, 820 (2016). Accordingly, Appellant is not entitled to the “new 

constitutional right” exception on the basis of Alleyne.

With regard to Appellant’s attempt to invoke the “new constitutional 

right” exception on the basis of Montgomery, which was issued on January 

25, 2016, while Appellant’s instant appeal was pending, we dispose of this 

claim by noting that Montgomery made Miller v. Alabama, 132 S.Ct. 

2455 (2012), fully retroactive to cases on state collateral review. Miller

held that it was unconstitutional to impose a mandatory term of life 

imprisonment without parole on juvenile homicide offenders. However, in 

the case sub judice, Appellant was neither convicted of homicide nor 

sentenced to a term of life in prison without parole. Thus, Appellant has not 

established he is entitled to relief on the basis of Montgomery.

Finally, with regard to Appellant’s attempt to invoke the “new 

constitutional right” exception on the basis of Dickson,

6

our Supreme Court 

issued its decision on March 29, 2007; however, as indicated supra, 

Appellant did not file his instant PCRA petition until August 11, 2014. Thus, 

Appellant did not meet his initial burden of proving he presented his claim 

____________________________________________

6

In Dickson, our Supreme Court held that the statute imposing a 

mandatory sentence enhancement on a person who visibly possesses a 

firearm or firearm replica during commission of a crime of violence does not 

apply to unarmed co-conspirators.
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within 60 days of when the claim first could have been presented. See 

Secreti, supra.

7

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016

____________________________________________

7 To the extent Appellant suggests his sentence is illegal, and thus not 

subject to the PCRA’s time restrictions, we note that our Supreme Court has 

specifically held that “[a]lthough legality of sentence is always subject to 

review within the PCRA, [legality of sentencing] claims must still first satisfy 

the PCRA’s time limits or one of the exceptions thereto.” Commonwealth 

v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999).