J-S62016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

RONALD J. BRILEY

Appellant No. 91 MDA 2017

Appeal from the PCRA Order November 28, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0003888-2011

BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.: FILED DECEMBER 12, 2017

Ronald J. Briley appeals from the November 28, 2016 order entered in 

the Dauphin County Court of Common Pleas dismissing his second petition 

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

9546. We affirm.

We set forth the factual history of this case in our memorandum 

affirming the trial court’s denial of Briley’s first PCRA petition. See 

Commonwealth v. Briley, No. 2275 MDA 2016, unpublished mem. at 1-2 

(Pa.Super. filed Aug. 26, 2016).

On November 20, 2013, following Briley’s guilty plea to second-degree 

murder, the trial court sentenced him to 35 years to life in prison concurrent 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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to his prior sentences, with credit for time served. On November 5, 2014, this 

Court affirmed Briley’s judgment of sentence. Briley filed a timely PCRA 

petition on January 26, 2015. On November 13, 2015, the PCRA court 

provided Briley with notice of its intent to dismiss his PCRA petition and, on 

December 10, 2015, the PCRA court dismissed Briley’s petition. Briley timely 

appealed, and this Court affirmed on August 26, 2016.

On October 25, 2016, Briley filed a petition for habeas corpus and PCRA 

relief. On October 27, 2016, the PCRA court issued notice of its intent to 

dismiss Briley’s petition. Briley filed a response on November 17, 2016. On 

November 28, 2016, the PCRA court dismissed Briley’s petition without a 

hearing. Briley timely filed his notice of appeal.

On appeal, Briley raises the following issues:

A. Whether [Briley]’s second PCRA petition should have 

been dismissed as untimely in that he alleged that he is 

serving an illegal sentence that does not conform to the 

dictates of Miller v. Alabama, [567 U.S. 460] (2012) and 

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

violates the Ex Post Facto Clause of the United States and 

Pennsylvania Constitutions[.]

B. Whether [Briley] is entitled to relief as a matter of state 

law and on due process grounds in light of significant afterdiscovered evidence which was unavailable at the time of 

the plea[.]

Briley’s Br. at 3.

Our standard of review from the denial of a PCRA petition “is limited to 

examining whether the PCRA court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 
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Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

We must first determine whether Briley’s PCRA petition is timely. A 

PCRA petition “including a second or subsequent petition, shall be filed within 

one year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). 

A judgment is 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 time for seeking the review.” 42 Pa.C.S. 

§ 9545(b)(3).

The trial court sentenced Briley on November 20, 2013, he appealed 

and this Court affirmed his judgment of sentence on November 5, 2014. Briley 

did not petition for allowance of appeal to the Pennsylvania Supreme Court. 

Thus, his judgment of sentence became final 30 days later, on December 5, 

2014. See Pa.R.A.P. 903 (providing that notice of appeal “shall be filed within 

30 days after the entry of the order from which the appeal is taken”). Briley

had one year from that date, or until December 5, 2015, to file a timely PCRA 

petition. His current petition, filed on October 25, 2016, is therefore facially 

untimely.

To overcome the time bar, Briley was required to plead and prove one 

of the following exceptions: (i) unconstitutional interference by government 

officials; (ii) newly discovered facts that could not have been previously 

ascertained with due diligence; or (iii) a newly recognized constitutional right 

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-
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(iii). To invoke one of these exceptions, Briley must have filed his petition 

within 60 days of the date the claim could have been presented. See 42 

Pa.C.S. § 9545(b)(2).

Briley first relies on the United States Supreme Court decisions in Miller

and Montgomery in claiming that he meets the new-constitutional-right 

exception.1 However, as we discussed in our previous memorandum, Briley 

was not subject to a mandatory sentence of life without parole; rather, the 

trial court sentenced Briley according to section 1102.1(c)(2).2 See Briley, 

____________________________________________

1

In Miller, the Supreme Court held that a sentence of life imprisonment 

without the possibility of parole was unconstitutional when imposed upon 

defendants who were “under the age of 18 at the time of their crimes.” 567 

U.S. at 465. In Montgomery, the Supreme Court held that the Miller

decision applied retroactively to cases on state collateral review. 

Montgomery, 136 S.Ct. at 736. 

2 Section 1102.1(c)(2) states:

(c) Second degree murder.--A person who has been 

convicted after June 24, 2012, of a murder of the second 

degree, second degree murder of an unborn child or murder 

of a law enforcement officer of the second degree and who 

was under the age of 18 at the time of the commission of 

the offense shall be sentenced as follows:

. . .

(2) A person who at the time of the commission of the 

offense was under 15 years of age shall be sentenced 

to a term of imprisonment the minimum of which shall 

be at least 20 years to life.

18 Pa.C.S. § 1102.1(c)(2).
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No. 2275 MDA 2016, at 2 n.1. Therefore, Miller and Montgomery are 

inapplicable to Briley.3 

In Briley’s next issue, he raises an after-discovered-evidence claim. He

claims that he learned of “a series of internet articles regarding the care of 

patients at the [m]edical [f]acility where [the] victim resided.” Briley’s Br. at 

15. Briley contends these articles were published on February 22, 2016 – two 

years and five months after the trial,4 and that he had no reason to know 

“there was evidence of an alternative cause of death.” Id. at 16. Briley 

appears to be confusing the newly discovered fact exception to the time bar

in section 9545(b)(1)(ii) with a claim of after-discovered-evidence under 

section 9543(a)(2). See Commonwealth v. Burton, 158 A.3d 618, 628-29 

(Pa. 2017) (discussing the correct terminology to be used when referring to 

the newly discovered fact exception and the after-discovered-evidence claim).

This Court has explained that to successfully raise the newly discovered 

fact exception to the PCRA time bar, a petitioner must show that “the facts 

____________________________________________

3 To the extent that Briley argues that application of section 

1102.1(c)(2) to his case violated the ex post facto clause, we have also 

addressed this issue in our previous memorandum, concluding that in

Commonwealth v. Brooker, 103 A.3d 325, 340-43 (Pa.Super. 2014), we

rejected this very argument with respect to the 35-year mandatory minimum 

for first-degree murder under section 1102.1(a)(1), and that we discerned no 

meaningful distinction in this regard between subsections (a)(1) and (c)(2). 

See Briley, No. 2275 MDA 2016, at 9.

4 There was no trial in this case. Briley pled guilty to second-degree 

murder on November 20, 2013. 
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upon which the claim was predicated were unknown” to him and “could not 

have been ascertained by the exercise of due diligence.” 42 Pa.C.S. § 

9545(b)(1)(ii); Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 

2007). A petitioner must identify those new facts “within 60 days of the date 

the claim could have been presented.” 42 Pa.C.S § 9545(b)(2). This 

exception does not require us to analyze the merits of the case or the 

underlying claim. Brown, 111 A.3d at 177. Once we have established

jurisdiction, we may then address the petitioner’s underlying after-discoveredevidence claim. Id. at 176.

Here, even if the articles constituted a “new fact” under the PCRA’s 

exception to the time bar, Briley’s underlying after-discovered-evidence claim 

fails because “allegations in an article do not constitute evidence,” 

Commonwealth v. Castro, 93 A.3d 818, 819 (Pa. 2014), and because the 

allegations in the articles relied on by Briley have no connection to the charges 

on which he was convicted. 

Accordingly, we conclude that Briley has failed to prove an exception to 

the PCRA time bar. Therefore, the PCRA court did not err in dismissing Briley’s 

PCRA petition as untimely.

5

____________________________________________

5 To the extent that Briley attempts to raise an ineffectiveness claim in 

his reply brief, he has waived this claim for failure to raise it in his PCRA 

petition, his Pennsylvania Rule of Appellate Procedure 1925(b) statement, or 

his brief. See Commonwealth v. Otero, 860 A.2d 1052, 1054 (“Issues 

presented before this [C]ourt for the first time in a reply brief are waived.”); 
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2017

____________________________________________

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not 

raised in a [Rule] 1925(b) statement will be deemed waived.”).