J-S27045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARRYL E. DUNST,

Appellant No. 2908 EDA 2016

Appeal from the PCRA Order August 16, 2016

in the Court of Common Pleas of Lehigh County

Criminal Division at No.: CP-39-CR-0002803-1995

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

MEMORANDUM BY PLATT, J.: FILED MAY 12, 2017

Appellant, Darryl E. Dunst, appeals, pro se, from the order of August 

16, 2016, dismissing, without a hearing, his second counseled 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.

We take the underlying facts and procedural history in this matter 

from this Court’s April 7, 1999 memorandum and our independent review of 

the certified record.

On May 14, 1996[,] Appellant [pleaded] guilty to criminal 

homicide regarding the September 12, 1995 shooting death of 

Dennis Keith Leslie[,] and attempted criminal homicide regarding 

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* Retired Senior Judge assigned to the Superior Court.
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the September 12, 1995 shooting of Donna Kremsner. Under 

the terms of the plea bargain four other counts were nol prossed 

and the trial court was to conduct a degree of guilt hearing to 

determine the classification and grade of the homicide. After the 

May 14-16, 1996 degree of guilt hearing . . . Appellant was 

found guilty of first-degree murder in the killing of Dennis Leslie. 

On June 21, 1996[,] Appellant was sentenced to life 

imprisonment for the first-degree murder of Mr. Leslie, and a 

consecutive [sentence of not less than ten nor more than twenty 

years] of imprisonment for the attempted murder of Ms. 

Kremsner. [Appellant did not file a direct appeal.]

On May 12, 1997[,] Appellant filed a pro se PCRA petition. 

On May 1[5], 1997[,] [the PCRA court] appointed the Lehigh 

County Public Defender’s office to represent Appellant and 

recommended that an amended PCRA petition be filed. On June 

25, 1997[,] [PCRA] counsel filed an amended [] petition. A 

PCRA hearing was held on December 22, 1997[,] and on June 

25, 1998[,] the [PCRA] court denied the [] petition.

(Commonwealth v. Dunst, No. 2390 Philadelphia 1998, unpublished 

memorandum at 1-2 (Pa. Super. filed Apr. 7, 1999)) (footnote omitted). On 

April 7, 1999, this Court affirmed the denial of Appellant’s PCRA petition. 

Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.

On February 23, 2016, 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 

February 26, 2016. On April 26, 2016, PCRA counsel submitted a 

Turner/Finley1letter. 

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On June 22, 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 

July 7, 2016. On August 16, 2016, the PCRA court dismissed the petition as 

untimely. The instant, timely appeal followed.2

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

1. Whether the [PCRA c]ourt erred in finding [Appellant’s] PCRA 

[petition] was untimely where the United States Supreme 

Court in Montgomery v. Louisiana[, 136 S. Ct. 718 (2016)] 

held that any cases out of their Court that were substantive in 

nature were retroactively applicable to all the [s]tates and in 

so doing caused [Alleyne] to become retroactively applicable 

to [Appellant?]

(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. . . . 

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 

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2 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). Nonetheless, Appellant 

filed one on August 26, 2016, together with his notice of appeal. See id. 

On October 24, 2016, the PCRA court filed an opinion. See Pa.R.A.P. 

1925(a).
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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 February 23, 2016. 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). Appellant’s 

judgment of sentence as to these matters became final on July 23, 1996, 

thirty days after the judgment of sentence was entered and the time for 

filing a direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 

903(a). Because Appellant did not file his current petition until February 23, 

2016, 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 

(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. 
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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 Section 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, supra 

mandates that we do so. (See id.). We disagree. 

Initially, 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 

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 
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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, 146 A.3d 266, 

271 (Pa. Super. 2016) (citation omitted). Neither Court has held that 

Alleyne is applied retroactively. Further, in a decision that post-dates 

Montgomery,

3

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 1996. His judgment of sentence 

became final in 1996. 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 

A.3d 1058, 1064 (Pa. Super. 2015); Commonwealth v. Miller, 102 A.3d 

988, 995 (Pa. Super. 2014).

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3 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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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: 5/12/2017