J-S77040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN COOKE,

Appellant No. 575 MDA 2016

Appeal from the PCRA Order March 11, 2016

in the Court of Common Pleas of Lycoming County

Criminal Division at No.: CP-41-CR-0002087-1998

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 14, 2016

Appellant, John Cooke, appeals, pro se, from the order of March 11, 

2016, dismissing, without a hearing, his first1counseled petition filed 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Because the petition is untimely without an applicable exception, we 

affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 While Appellant filed two previous PCRA petitions, both concerned 

restoration of certain direct appeal rights nunc pro tunc. Thus, the trial 

court properly deemed the current petition to be Appellant’s first PCRA 

petition. See Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa. 

Super. 2003) (noting that upon restoration of direct appeal rights nunc pro 

tunc, subsequent PCRA petition will be considered first petition for timeliness 

purposes).
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We take the underlying facts and procedural history in this matter 

from this Court’s June 7, 2004 memorandum and our independent review of 

the certified record.

Represented by [the Lycoming County Public Defender’s 

Office], Appellant pleaded guilty to robbery, kidnapping, 

conspiracy, receiving stolen property, and robbery of a motor 

vehicle, and was sentenced by the [trial court] to [not less than] 

nine [nor more than twenty] years’ [incarceration] on June 22, 

1999. A direct appeal was then filed on Appellant’s behalf by 

[new counsel], but [he] failed to file a Pa.R.A.P. 1925(b) 

statement, as directed by the lower court. A panel of this Court 

subsequently found all issues waived, and affirmed Appellant’s 

sentence on July 6, 2000.

Appellant filed a pro se PCRA petition on January 9, 2001, 

and [counsel] was appointed to represent him. [The PCRA 

court] granted Appellant’s PCRA petition on April 5, 2001, giving 

him [thirty] days in which to file an appeal nunc pro tunc. . . . . 

Appellant filed an appeal to this court on May 2, 2001[.] . . . [A] 

panel of this Court affirmed his sentence on July 19, 2002.

Appellant asserts that on August 4, 2002, unaware his 

sentence had been affirmed, he requested that [counsel] appeal

his case to the next level if it was denied by this Court. In a 

letter dated August 20, 2002, however, [counsel] informed 

Appellant that he no longer had a right to appointed counsel, 

[the] firm was discontinuing its representation, and if he wanted 

to request review with the Pennsylvania Supreme Court, he 

could hire an attorney of his choice to do so. 

Unrepresented, Appellant again petitioned for postconviction relief on October 9, 2002, arguing that [counsel] was 

ineffective for failing to notify him of the denial of his appeal in 

time for him to file an appeal to the Pennsylvania Supreme 

Court. The remedy sought by Appellant’s PCRA petition was an 

extension of time to file a petition for allowance of appeal to the 

Pennsylvania Supreme Court. On October 22, 2002, [the PCRA 

court] denied Appellant’s request for an extension of time. While 

the order itself [did] not specifically indicate an intent to dismiss 

Appellant’s PCRA petition, [the PCRA court] explain[ed] that the 

docket entry corresponding to the order lists it as [o]rder 
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dismissing Post-Conviction Relief Act [p]etition. [The PCRA 

court] further acknowledge[d] that since the only relief the PCRA 

petition [sought was] an extension of time, the order effectively 

denie[d] that petition. 

On October 30, 2002, nearly two weeks after [the PCRA 

court] issued the order effectively denying Appellant’s PCRA 

petition, [counsel] was appointed by [a different judge] to 

represent Appellant. [Counsel] filed an appeal of the October 

22, 2002 order on Appellant’s behalf on November 21, 2002.

(Commonwealth v. Cooke, No. 1834 MDA 2002, unpublished 

memorandum at 1-3 (Pa. Super. filed June 7, 2004)) (quotation marks, 

footnote, and record citations omitted).

On June 7, 2004, this Court vacated the dismissal of Appellant’s PCRA 

petition and remanded for an evidentiary hearing. (See id. at 1). On 

February 7, 2005, following a hearing, the PCRA court granted Appellant’s 

PCRA petition, giving him thirty days to seek leave to appeal to the 

Pennsylvania Supreme Court. Appellant did so, and the Pennsylvania 

Supreme Court denied leave to appeal on April 19, 2006. (See 

Commonwealth v. Cooke, 897 A.2d 450 (Pa. 2006)). 

On August 11, 2015, Appellant, acting pro se, filed the instant PCRA 

petition seeking to vacate his sentence pursuant to Alleyne v. United 

States, 133 S.Ct. 2151 (2013). The PCRA court appointed counsel on 
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August 18, 2015. On October 7, 2015, PCRA counsel submitted a 

Turner/Finley2letter. Appellant filed a response on November 4, 2015.

On February 17, 2016, the PCRA court issued notice of its intent to 

dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 

907(1), and granted PCRA counsel’s request to withdraw. Appellant filed a 

response on March 3, 2016. On March 11, 2016, the PCRA court dismissed 

the petition as untimely. The instant, timely appeal followed.3

On appeal, Appellant raises the following question for our review:

1. Whether the ruling of Montgomery v. Louisiana, [136 S. 

Ct. 718 (2016)] clarified and reestablished a constitutional 

rule warranting retroactive application during collateral 

review?

(Appellant’s Brief, at vii). 

Our standard of review for an order denying PCRA relief is well-settled:

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Great deference is granted to the findings of the PCRA court, and 

these findings will not be disturbed unless they have no support 

in the certified record. . . . 

____________________________________________

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3 The PCRA court did not order Appellant to file a concise statement of errors 

complained of on appeal. See Pa.R.A.P. 1925(b). On June 13, 2016, it filed 

an opinion. See Pa.R.A.P. 1925(a).
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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a 

trial court has no jurisdiction to entertain the petition.” Commonwealth v. 

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). 

Here, Appellant filed his PCRA petition on August 11, 2015. The PCRA 

provides that “[a]ny petition under this subchapter, including a second or 

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

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Therefore, Appellant’s 

judgment of sentence became final on July 18, 2006, ninety days after the 

Pennsylvania Supreme Court denied leave to appeal and Appellant did not 

file a petition for a writ of certiorari with the United States Supreme Court. 

See U.S.Sup.Ct.R. 13. Because Appellant did not file his current petition 

until April 11, 2015, the petition is facially untimely. See 42 Pa.C.S.A. § 

9545(b)(1). Thus, he must plead and prove that he falls under one of the 

exceptions at Section 9545(b) of the PCRA. See id.

Section 9545 provides that the court can still consider an untimely 

petition where the petitioner successfully proves that:

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

of interference by government officials with the presentation of 

the claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws 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 
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(iii) the right asserted is a constitutional right that was 

recognized by the Supreme Court of the United States or the 

Supreme Court of Pennsylvania after the time period provided in 

this section and has been held by that court to apply 

retroactively. 

Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any 

of the above exceptions must file the petition “within [sixty] days of the date 

the claim could have been presented.” Id. at § 9545(b)(2). The 

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s 

burden to plead and prove that one of the above-enumerated exceptions 

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 

(Pa. 2008), cert. denied, 555 U.S. 916 (2008). 

In the instant matter, Appellant appears to contend that his petition is 

timely under § 9545(b)(1)(iii), specifically that the United States Supreme 

Court’s decision in Alleyne, supra renders his sentence illegal. (See 

Appellant’s Brief, at 1-4). While Appellant acknowledges that our Court has 

not applied Alleyne retroactively to cases on collateral review, he contends 

that the U.S. Supreme Court’s decision in Montgomery mandates that we 

do so. (See id. at IX). We disagree. 

Firstly, we note that the fact that Appellant challenges the legality of 

his sentence does not allow him to evade the PCRA’s timeliness 

requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the 

Pennsylvania Supreme Court rejected this contention. The Fahy Court 

stated, “[a]lthough legality of sentence is always subject to review within the 
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PCRA, claims must still first satisfy the PCRA’s time limits or one of the 

exceptions thereto.” Id. at 223 (citation omitted). Thus, Appellant cannot 

elude the PCRA’s timeliness requirements based on a claim of an illegal 

sentence. See id. 

Moreover, “a new rule of constitutional law is applied retroactively to 

cases on collateral review only if the United States Supreme Court or the 

Pennsylvania Supreme Court specifically holds it to be retroactively 

applicable to those cases.” Commonwealth v. Whitehawk, --- A.3d ---, 

2016 WL 4473779, at *4 (Pa. Super. filed Aug. 24, 2016) (citation omitted). 

Neither Court has held that Alleyne is applied retroactively. Further, in a 

decision that post-dates Montgomery,

4

our Supreme Court has 

unequivocally held that Alleyne does not apply retroactively to cases 

pending on collateral review. See Commonwealth v. Washington, 142 

A.3d 810, 820 (Pa. 2016).

Here, Appellant was sentenced in 1999. His judgment of sentence 

became final in 2006. Thus, this matter is clearly on collateral review, and 

his PCRA petition is facially untimely. Because Alleyne does not apply 

retroactively to cases on collateral review, it cannot afford Appellant relief. 

See Washington, supra at 820; see also Commonwealth v. Riggle, 119 

____________________________________________

4 Appellant does not point to any cases that have held that the decision in 

Montgomery renders Alleyne retroactive to cases on collateral review. 

(See Appellant’s Brief, at 1-4). 
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A.3d 1058, 1064 (Pa. Super. 2015); Commonwealth v. Miller, 102 A.3d 

988, 995 (Pa. Super. 2014).

Thus, Appellant’s PCRA petition is untimely with no statutory exception 

to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly, 

we affirm the order of the PCRA court.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/2016