J-S08007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES EDWIN CORNMAN

Appellant No. 1163 WDA 2016

Appeal from the PCRA Order dated July 26, 2016

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000765-2011

 CP-25-CR-0001079-2011

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.: FILED JUNE 07, 2017

Appellant James Edwin Cornman appeals from the order of July 26, 

2016, denying his serial Post Conviction Relief Act (“PCRA”) 1 petition as 

untimely. For the reasons that follow, we affirm.

1. Appellant’s Conviction and Direct Appeal.

This appeal references two separate trial court docket numbers which 

have interwoven histories. Both cases relate to robberies which took place in 

Erie, Pennsylvania, on February 28, 2011: docket No. CP-25-CR-0001079-

2011 (“1079-11”) relates to the robbery of Sara’s Market, and docket No. 

CP-25-CR-0000765-2011 (“765-11”) relates to the robbery of a Kwik Fill gas 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
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station. See Commonwealth v. Cornman, 970 WDA 2012 (Pa. Super., 

June 18, 2013) (unpublished memorandum). 

On July 19, 2011, Appellant was tried by a jury and convicted of 

robbery and related crimes under No. 1079-11.2 The next day, another jury 

convicted Appellant of robbery and related crimes under No. 765-11. 3

Sentencing proceedings were held in both cases on September 14, 2011, 

and Appellant was sentenced to an aggregate of ten to forty years’ 

imprisonment. 4For each of his robbery convictions, Appellant received a 

sentence of five to twenty years’ incarceration, 5in accordance with a 

Sentencing Code provision that at that time required that Appellant receive a 

____________________________________________

2 Appellant was convicted of Robbery (18 Pa.C.S. § 3701), Possession of an 

Instrument of Crime (18 Pa.C.S. § 907), Carrying Prohibited Offensive 

Weapons (18 Pa.C.S.A. § 908), Recklessly Endangering Another Person (18 

Pa.C.S. § 2705), Simple Assault (18 Pa.C.S. § 2701(a)(3)), Terroristic 

Threats (18 Pa.C.S. § 2706(a)(1)), Unlawful Possession of a Firearm (18 

Pa.C.S. § 6105(a)(2)), and Carrying a Firearm Without a License (18 Pa.C.S. 

§ 6106(a)(1)). See Corman, 970 WDA 2012 at 1 n.1.

3 Appellant was convicted of the same charges as those in his other case, as 

well as Criminal Conspiracy (18 Pa.C.S. § 903), Theft by Unlawful Taking (18 

Pa.C.S. § 3921), and Receiving Stolen Property (18 Pa.C.S. § 3925). See 

Corman, 970 WDA 2012 at 1 n.1

4 The sentence Appellant received for each count was run concurrently to the 

sentences he received for each other count on the same docket, but the 

sentences for the two cases were run consecutively.

5 Appellant’s sentences of five years’ incarceration fell below the standard 

range of the sentencing guidelines. Appellant received mitigated sentences 

due to “defendant’s age, his rehabilitative potential, [and] prior record.” 

N.T., 9/14/11, at 17.
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five-year mandatory minimum sentence for having committed robbery while 

using a firearm. See 42 Pa.C.S. § 9712(a).

Following Appellant’s direct appeal, which referenced both trial court 

docket numbers, we affirmed Appellant’s judgments of sentence on June 18, 

2013. One day before we issued our decision, on June 17 2013, the 

Supreme Court of the United States decided Alleyne v. United States, 133 

S. Ct. 2151 (2013), which held that in cases tried by a jury, imposition of a 

statutory mandatory minimum sentence is unconstitutional unless all facts 

compelling that sentence are determined by the jury. Appellant did not raise 

that constitutional issue with respect to his own sentence in his direct appeal 

or at any time before the judgment on his direct appeal became final.6 The 

docket reflects that copies of our decision were sent to Appellant by the trial 

court on September 17, 2013.

2. Appellant’s Post-Conviction Petitions and Appeals.

After Appellant’s direct appeal, the procedural histories of these cases 

became convoluted.7 Unfortunately, these histories — and, in particular, that 

of the appeals in each of the cases — bear on the timeliness of the PCRA 

____________________________________________

6

The only subject of Appellant’s direct appeal was whether the trial court 

abused its discretion in deciding that Appellant’s own testimony opened the 

door to permit the Commonwealth to present evidence of the second 

robbery at Appellant’s trial for the first robbery.

7 The dockets of these two cases are replete with pro se filings and 

responsive trial court orders; the recitation in the text does not include every 

filing on each docket, but only those necessary to dispose of the matters 

before us.
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petition that now is before us, and it therefore is necessary to review these 

histories in some detail. The reader is cautioned that review of the following 

paragraphs may be challenging; we have highlighted the relevant appeal 

numbers as a partial road map.

First, it appears that on July 24, 2014, 8 Appellant filed documents 

titled “In Re: Demand for Trial Transcripts, Police Reports, Discovery,” and 

“Motion for Leave to Proceed [In Forma Pauperis],” referencing only Docket 

No. 765-11. In these documents, Appellant claimed that his trial counsel 

provided ineffective representation at his sentencing hearing, and requested 

a copy of his transcripts.9 The PCRA court denied these requests on July 28, 

2014, because Appellant had “no pending matters” before it. 

On August 5, 2014, Appellant filed a motion at Docket No. 765-11 that 

was titled “Bill In Nature Of Bill In Review” and that appears to have asked 

the court to reconsider denying his July 24, 2014 requests. This motion was 

denied by the PCRA court on September 3, 2014, again because the court 

____________________________________________

8

Pursuant to the prisoner mailbox rule, the dates of filing of Appellant’s 

documents were the dates he placed them in the hands of prison authorities.

See Commonwealth v. Fransen, 986 A.2d 154, 156 n.5 (Pa. Super. 

2009). Nevertheless, unless relevant for timeliness calculations, we recount 

Appellant’s pro se filings in this case by the dates reflected on the PCRA 

court’s docket.

9

In support, Appellant attached a “Petition for Writ of Mandamus and/or 

Extraordinary Relief” which he filed in the Pennsylvania Supreme Court on 

December 12, 2013. In that petition, Appellant cited a provision of the PCRA 

(42 Pa.C.S. § 9545(b)), alleged his trial counsel was ineffective, and 

requested copies of transcripts and other documents related to his case.
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had “no pending matters” in Appellant’s case. Appellant filed a notice of 

appeal from the denial of his Bill in Nature of Bill of Review on September 

11, 2014, and that appeal was docketed in this Court at No. 1484 WDA 

2014. It does not appear that Appellant was appointed counsel regarding 

either his filings before the PCRA court, or the related appeal at No. 1484 

WDA 2014.

While that appeal was pending on trial court Docket No. 765-11, 

Appellant filed a PCRA petition on September 18, 2014, that referenced both 

trial court docket numbers. On September 24, 2014, the PCRA court 

dismissed the petition “only as it relates to Docket No. 765 of 2011,” 

because, due to the pending appeal in that case (that is, Appeal No. 1484 

WDA 2014), the PCRA court was without jurisdiction to entertain a PCRA 

petition with respect to it. See Order, 9/24/14.10

On September 24, 2014, counsel was appointed to represent Appellant 

regarding the PCRA petition as it related to the other trial court docket, No. 

1079-11. On October 24, 2014, appointed counsel filed a “no merit” letter 

____________________________________________

10 See Commonwaelth v. Moore, 715 A.2d 448 (Pa. Super. 1998). We 

explained in that case: “Pennsylvania Rule of Appellate Procedure 1701(a) 

states that, ‘[e]xcept as otherwise prescribed by these rules, after an appeal 

is taken or review of a quasijudicial order is sought, the trial court or other 

government unit may no longer proceed further in the matter.’ The effect of 

this provision is that once a party has properly appealed a decision of the 

trial court, the trial court lacks jurisdiction to act further on the case.” 715 

A.2d at 453 (citing Commonwealth v. Pearson, 685 A.2d 551, 557 (Pa. 

Super. 1996), appeal denied, 549 Pa. 699, 700 A.2d 439 (1997)). 
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and petition to withdraw.11 Counsel’s no merit letter did not address the 

timeliness of Appellant’s September 18, 2014 PCRA petition, but only the 

merits of Appellant’s underlying PCRA claims. The letter also did not 

challenge Appellant’s sentence, even though three weeks prior to the date of 

the letter, on October 3, 2014, this Court held that the Sentencing Code 

provision under which Appellant’s mandatory minimum sentence was 

imposed, 42 Pa. C.S. § 9712, was unconstitutional in light of the U.S. 

Supreme Court’s decision in Alleyne. See Commonwealth v. Valentine, 

101 A.3d 801, 812 (Pa. Super. 2014). Rather, counsel’s letter stated, “The 

instant sentence was patently legal including the provision of a mandatory 

minimum sentence.” Letter, 10/24/14, at 4 (unpaginated).

On November 3, 2014, Appellant filed a motion titled “Bill of 

Exceptions,” which referenced both docket numbers. This document appears 

to have been a response to appointed counsel’s no merit letter on No. 1079-

11, and it alleged PCRA counsel’s ineffectiveness. The “Bill of Exceptions” 

was quashed by the PCRA court on November 7, 2014, but only to the 

extent it related to trial court Docket No. 765-11, due to the appeal pending 

in that case (No. 1484 WDA 2014). Appellant filed a notice of appeal from 

the quashal of his Bill of Exceptions on November 19, 2014, but referenced 

____________________________________________

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

requires PCRA counsel wishing to withdraw to present a “no-merit” letter to 

the petitioner listing each claim the petitioner wishes to have reviewed, 

describing the extent to which those claims were reviewed, and explaining 

why the petitioner's issues are meritless. 
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only No. 765-11. That appeal was docketed in this Court at No. 1908 WDA 

2014. 

On January 29, 2015, we dismissed the appeal at No. 1484 WDA 

2014 (Appellant’s appeal from the denial of the “Bill In Nature Of Bill In 

Review” that he had filed in No. 765-11) for Appellant’s failure to file a brief.

See Order, 1/29/15 (per curiam). 

On February 6, 2015, we remanded No. 1908 WDA 2014

(Appellant’s appeal from the denial of the “Bill of Exceptions” filed in No. 

765-11) so that the PCRA court could determine whether Appellant was 

entitled to appointed counsel. On February 25, 2015, the PCRA court entered 

an order stating that Appellant was not entitled to counsel.

On February 25, 2015, the PCRA court issued a Pa.R.Crim.P. 907 

notice of its intent to dismiss Appellant’s September 18, 2014 PCRA petition 

without a hearing.12 The court dismissed the PCRA petition on March 23, 

2015, but it denied appointed counsel’s petition to withdraw. Appellant’s 

appointed counsel filed a notice of appeal on Appellant’s behalf on April 15, 

____________________________________________

12 Like counsel’s no-merit letter, the PCRA court’s Rule 907 notice did not 

address the timeliness of Appellant’s September 18, 2014 PCRA petition, but 

only the merits of Appellant’s underlying PCRA claims. Regarding the 

mandatory minimum sentence received by Appellant, the PCRA court 

concluded that Appellant’s claim lacked merit because, “At the time of 

sentence, § 9712 was constitutional and applicable to Petitioner’s conviction. 

. . . Alleyne does not apply retroactively to cases in which judgment of 

sentence has become final.” See Pa.R.Crim.P. 907 Notice, 2/25/15, at 6.
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2015. That appeal, which was in reference to the PCRA petition in No. 1079-

11 only, was docketed in this Court at No. 623 WDA 2015.

13

On May 8, 2015, Appellant filed another pro se PCRA petition, which 

referenced both docket numbers. In it, he alleged that both trial counsel and 

appointed PCRA counsel were ineffective. That same day, Appellant 

petitioned this Court regarding his appeal at No. 623 WDA 2015 and stated 

that he wanted to proceed pro se and to dismiss the appeal, because it was 

“impeding [Appellant’s] ability to [seek] PCRA relief.”

On May 14, 2015, we dismissed the appeal at No. 1908 WDA 2014

(Appellant’s appeal from the denial of the “Bill of Exceptions” he had filed in 

No. 765-11) for Appellant’s failure to file a brief. See Order, 5/14/15 (per 

curiam). That same day, we ordered the PCRA court to conduct a Grazier14

hearing on No. 623 WDA 2015 to determine whether Appellant wished to 

waive his right to court-appointed representation, and whether that waiver 

was knowing, intelligent, and voluntary. We denied Appellant’s request to 

dismiss his appeal until he had been granted the right to proceed pro se.

____________________________________________

13 On April 20, 2015, Appellant sent a letter to appointed counsel stating his 

disappointment that counsel had filed an appeal to the denial of his PCRA 

petition, because Appellant wished to file a subsequent PCRA petition 

alleging counsel’s ineffectiveness. A copy of this letter was filed with the 

court on April 23, 2015.

14 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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On June 3, 2015, the PCRA court quashed Appellant’s May 8, 2015 

PCRA petition, because it had been filed while an appeal was pending.15 The 

PCRA court also held a Grazier hearing on that date, where it established 

that Appellant would proceed pro se on No. 623 WDA 2015. 

On June 16, 2015, Appellant petitioned the PCRA court to reinstate his 

May 8, 2015 PCRA petition because there was no longer an appeal pending 

on No. 765-11 and because he had filed a motion in this Court to dismiss his 

appeal related to No. 1079-11 (No. 623 WDA 2015). The court denied 

Appellant’s petition on June 17, 2015.

On June 24, 2015, Appellant’s appeal at No. 623 WDA 2015

(Appellant’s appeal from the dismissal of his first PCRA petition in No. 1079-

11) was discontinued at Appellant’s request. See Order, 6/24/15 (per 

curiam). As a result of this discontinuance, Appellant no longer had any 

appeals pending in this Court as of June 24, 2015.

3. The PCRA Petition Now at Issue.

On July 6, 2015, Appellant filed a new PCRA petition that referenced 

both case numbers. The petition claimed that Appellant’s trial counsel was 

ineffective for failing to adequately advise Appellant regarding the 

consequences of exercising his right to testify and for failing to file postsentence motions, and claimed that subsequent counsel was also ineffective 

____________________________________________

15 On the day the petition was filed, May 8, 2014, Appellant had an 

outstanding appeal on each docket number: No. 1908 WDA 2014 (on No. 

765-11), and No. 623 WDA 2015 (on No. 1079-11). 
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for failing to preserve these claims. See PCRA Pet., 7/6/15, at 9, 9(a), 9(b). 

Appellant did not specifically mention his mandatory minimum sentence in 

this petition. On July 9, 2015, without leave of court,16 Appellant filed an 

amended version of this petition that added an argument that Appellant’s 

petition was timely because Appellant’s previous appeals (which had 

prevented his PCRA petitions from proceeding) had recently been dismissed. 

Appellant asserted, “all this time must be tolled that was not permitted to 

have his PCRA heard as a result of the various appeal[s] that were filed that 

stripped this court of jurisdiction.” See PCRA Pet., 7/9/15, at 2(a). It is this 

July 6, 2015 petition (purportedly as amended) that is now before this 

Court. 

The PCRA court appointed new counsel to represent Appellant.17 On 

February 19, 2016, counsel filed a no-merit letter and petition to withdraw.18

Appellant responded to this notice with pro se filings on March 9, 2016, and 

____________________________________________

16 A PCRA petitioner may amend a petition only when leave to do so is 

granted by the PCRA court. See Commonwealth v. Porter, 35 A.3d 4, 12 

(Pa. 2012).

17 The PCRA court held a hearing on July 28, 2015, to ensure that Appellant 

desired representation by court-appointed counsel.

18 Counsel’s no merit letter did not address the timeliness of Appellant’s 

July 6, 2015 PCRA petition, but only Appellant’s underlying PCRA claims, 

which counsel found to be lacking in merit. Regarding Appellant’s sentence, 

the letter stated that Appellant received “the mandatory minimum at the 

time.”
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March 21, 2016; also, without leave of court, Appellant filed an amended 

petition on March 21, 2016.19

On June 22, 2016, the PCRA court issued a Pa.R.Crim.P. 907(1) Notice 

of its intention to dismiss Appellant’s PCRA petition without a hearing 

because of the petition’s untimeliness, and it granted appointed counsel’s 

petition to withdraw. The Rule 907 Notice stated:

Here, [Appellant] was sentenced at both dockets on 

September 14, 2011. [Appellant] filed a direct appeal at 

both dockets, and on June 18, 2013, the Superior Court 

affirmed his judgments of sentence. Commonwealth v. 

Cornman, 970 WDA 2012 (Pa. Super. June 18, 2013)[.] 

[Appellant] did not file a Petition for Allowance of Appeal. 

Therefore, [Appellant]’s judgments of sentence became 

final on July 18, 2013, at the expiration of the thirty-day 

time period for seeking [review] with the Pennsylvania 

Supreme Court. 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 

1113(a). Therefore, [Appellant]’s time to file a PCRA 

petition expired on July 18, 2014. 42 Pa.C.S.A. § 

9545(b)(1); 1 Pa.C.S. § 1908. As his current PCRA 

petitions were not filed until June and [] July [of] 2015, 

they are patently untimely. Furthermore, [Appellant] has 

failed to demonstrate a timeliness exception.

Notice, 6/22/16, at 2. 

On July 13, 2016, Appellant responded to the court’s Rule 907 notice. 

On July 15, 2016, before the PCRA court received Appellant’s response, the 

court dismissed Appellant’s PCRA petition as untimely. On July 26, 2016, the 

PCRA court issued an “Amended Final Order” that took Appellant’s response 

____________________________________________

19 The amended petition did not further address the timeliness of the 

petition.
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into account and again dismissed Appellant’s PCRA petition as untimely.20

Appellant thereafter filed a timely notice of appeal and a timely Pa.R.A.P. 

1925(b) Concise Statement of Matters complained of on appeal.

Appellant raises three issues in his pro se brief to this Court:

1. Did the lower court err when it dismissed Appellant’s PCRA 

petition as being untimely?

2. Was counsel ineffective for failing to file post-sentence motion 

to correct illegal sentence, where all in both cases should have 

merged with each other, because both robberies were part of a 

single “criminal episode”?

3. Was appellant counsel ineffective when he failed to request 

the Superior Court [hear] re-argument of Appellant’s illegal 

sentence, in which the sentencing court imposed mandatory 

sentences under [42 Pa.C.S. § 9712]?

Appellant’s Brief at 2, 3, 4. 

Our standard of review regarding an order dismissing a petition under 

the PCRA is whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Commonwealth v. Halley, 

870 A.2d 795, 799 n.2 (Pa. 2005). 

A PCRA petition must be timely, as the timeliness of a post-conviction 

petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 

(Pa. Super. 2013). Generally, a petition for relief under the PCRA, including 

a second or subsequent petition, must be filed within one year of the date 

____________________________________________

20 We note that a court generally retains jurisdiction to amend any order for 

30 days. 42 Pa.C.S. § 5505.
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the judgment is final unless the petition alleges, and the petitioner pleads 

and proves, that an exception to the time for filing the petition set forth at 

42 Pa.C.S. § 9545(b)(1) is met. See 42 Pa.C.S. § 9545(b). One of those 

exceptions is that —

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.

42 Pa.C.S. § 9545(b)(1)(iii).21 A PCRA petition invoking any of the statutory 

exceptions must “be filed within 60 days of the date the claims could have 

been presented.” 42 Pa.C.S. § 9545(b)(2); see Hernandez, 79 A.3d 651-52 

(citations omitted). 

A PCRA petition may not be filed while an appeal in the same case is 

pending before an appellate court, be it a direct appeal or appeal of an 

earlier PCRA petition. See Pa.R.A.P. 1701(a); Commonwealth v. Lark, 746 

A.2d 585, 588 (Pa. 2000). In the event that a pending appeal of an earlier 

PCRA petition prevents the immediate filing of a subsequent PCRA petition 

____________________________________________

21 The other two exceptions are:

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

interference of 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[.]

42 Pa.C.S. § 9545(b)(1).
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after the one-year deadline, the petitioner must not only file his petition 

within 60 days of the disposition of the appeal (as that is the earliest his 

petition could have been presented), but the petitioner still must also show 

that one of the Section 9545(b)(1) exceptions applies. Id.

In his brief, Appellant argues that we affirmed his judgment of 

sentence on August 18, 2013, and that his sentence became final thirty days 

later, on September 18, 2013. See Appellant’s Brief at 2. According to 

Appellant, he therefore had one year, until September 18, 2014, to file his 

petition. Id. Appellant therefore claims that his instant PCRA petition was 

timely filed on September 18, 2014, and amended on May 8, 2015, and 

March 21, 2016. Id. at 3. 

Appellant’s assertions are belied by the record. We affirmed his 

judgment of sentence on June 18, 2013, not August 18, 2013. As Appellant 

did not petition for allowance of an appeal with the Supreme Court, his 

judgment of sentence became final on July 18, 2013, after the 30 day period 

for filing a petition for allowance of appeal expired. See 42 Pa.C.S. § 

9545(b)(3). Appellant therefore had one year, or until July 18, 2014 (not 

September 18, 2014), to file his PCRA petition. Appellant’s instant petition 

was filed on July 6, 2015, well after that deadline. 

Appellant’s argument suggests that he believes this appeal is from his 

September 18, 2014 PCRA petition. That is incorrect. The petition that 

Appellant filed on September 18, 2014, was dismissed in relation to Case 
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No. 765-11 (because it was filed when an appeal was pending in that case); 

and, in relation to Case No. 1079-11, relief under the September 18, 2014 

petition was denied by the PCRA court on June 24, 2015. The June 24 

decision was appealed by Appellant, but that appeal was then discontinued 

at Appellant’s request. Appellant’s present appeal therefore is not from and 

has nothing to do with the September 18, 2014 petition. And even it did, for 

the reasons we already have explained, he still would not be entitled to relief 

because his PCRA deadline expired on July 18, 2014, making the 

September 18, 2014 petition untimely.22

Appellant’s instant petition, filed July 6, 2015, was filed within 60 days 

of the date that his prior appeals on each docket number were completed 

and the PCRA court regained jurisdiction. 23 However, Appellant must still 

plead and prove that a timeliness exception under Section 9545(b)(1) 

applies. Lark, 746 A.2d at 588. Appellant’s only cogent arguments asserting 

a timeliness exception are found in his amended petition of July 9, 2015, and 

____________________________________________

22 Appellant’s argument also suggests that his May 8, 2015 PCRA petition 

amended the September 18, 2014. The record shows, however, that the 

May 8, 2015 petition was a new PCRA petition that was dismissed by the 

PCRA court on June 3, 2015, because of the other appeals that were pending 

at that time. See note 15, supra. Like the September 18, 2014 petition, 

Appellant’s May 8, 2015 petition was untimely.

23 In Case No. 765-11, Appellant had an appeal pending in our Court at No. 

1908 WDA 2014 that was dismissed on May 14, 2015; the 60 days therefore 

ran on July 13, 2015 for that case. In Case No. 1079-11, Appellant’s appeal 

to our Court at No. 623 WDA 2015 was discontinued on June 24, 2015; the 

60 days therefore ran on August 23, 2015 for that case. 
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in his July 13, 2016 response to the PCRA court’s Rule 907 Notice. Even 

assuming that these arguments constitute proper allegations of an exception 

pursuant to Section 9545(b),24 the arguments do not entitle Appellant to 

relief.

In his July 9, 2015, amended petition, Appellant asserts that “all this 

time must be tolled that was not permitted to have his PCRA heard as a 

result of the various appeal[s] that were filed that stripped this court of 

jurisdiction.” See PCRA Pet., 7/9/15, at 2(a). However, as established by 

Lark, Appellant was not only obligated to file a new PCRA petition within 60 

days of the disposition of a prior appeal, but he also had to assert a 

timeliness exception under Section 9545(b)(1). 

In Appellant’s July 13, 2016 response to the PCRA court’s Rule 907 

Notice, Appellant seemed to suggest that his petition was timely because it 

was filed within sixty days of the United States Supreme Court’s decision in 

Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016), which states, 

“when a new substantive rule of constitutional law controls the outcome of a 

case, the Constitution requires state collateral review courts to give 

____________________________________________

24 Section 9545(b) states that a petition is untimely “unless the petition 

alleges and the petitioner proves” applicability of one of the timeliness 

exceptions. 42 Pa. C.S. § 9545(b). The allegations in Appellant’s response to 

the Rule 907 notice were not contained in a “petition,” as required by this 

section. The allegations in Appellant’s July 9, 2015 filing are properly 

considered only if we accept that filing as an amendment of Appellant’s 

July 6, 2015 petition, even though it was filed without leave of court. 

Because Appellant’s arguments regarding an exception are without merit, we 

need not decide the validity of Appellant’s purported amendment.
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retroactive effect to that rule.” Appellant argues that this statement applies 

to the new rule of constitutional law articulated in Alleyne, which led to 

most mandatory minimum sentencing schemes being declared 

unconstitutional. According to Appellant, the rule in Montgomery requires 

that the rule in Alleyne be applied retroactively, and renders the mandatory 

minimum sentences received by Appellant illegal. Furthermore, Appellant 

states that the mandatory minimum sentencing statute under which he was 

sentenced should be deemed unconstitutional and therefore ineffective from 

the date of its enactment. See Objs., 7/13/16, at 1-3 (citing 

Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010)).

Under 42 Pa.C.S. § 9545(b)(1)(iii), a PCRA petition based on a newly 

recognized constitutional right is timely if brought within sixty days of the 

Supreme Court decision announcing that right,25 and if “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.” Therefore, the Supreme Court decision must specifically 

provide that the right be applied retroactively:

Subsection (iii) of Section 9545 requires a petitioner to prove 

“there is a ‘new’ constitutional right and that the right ‘has been 

held’ by ‘that court’ to apply retroactively.” . . . “The language 

‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a 

____________________________________________

25 We note that Appellant’s July 6, 2015 petition was filed before January 25, 

2016, the date Montgomery was decided.
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retroactivity determination must exist at the time that the 

petition is filed.” 

Commonwealth v. Secreti, 134 A.3d 77, 80–81 (Pa. 2016) (citations and 

brackets omitted) (quoting Commonwealth v. Abdul–Salaam, 812 A.2d 

497, 501 (Pa. 2002)).

Appellant’s reliance on Montgomery is not sufficient to satisfy these 

requirements. Montgomery did not hold that Alleyne announced a new 

substantive rule of constitutional law that applies retractively. Rather, 

Montgomery clarified that the decision in Miller v. Alabama, 567 U.S. 460 

(2012) — a case dealing with the constitutional rights of juveniles that has 

no application here — announced a new substantive rule of law that would 

be given retroactive application. See Secreti, 134 A.3d at 82. Both the 

Supreme Court and this Court have held that Alleyne did not announce a 

new substantive rule of law, and therefore does not apply retroactively to 

cases pending on PCRA review. Commonwealth v. Washington, 142 A.3d 

810, 820 (Pa. 2016); Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. 

Super. 2015).

We recognize that Alleyne was decided while Appellant’s case was still 

on direct review, and, therefore, application of Alleyne to Appellant’s case 

would not have been considered retroactive if the issue were raised at that 
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time.26 However, this Court can review the legality of a sentence only when 

it has jurisdiction to do so. Commonwealth v. Miller, 102 A.3d 988, 995 

(Pa. Super. 2014). This Court lost jurisdiction over Appellant’s direct appeal 

on August 19, 2013, and Appellant did not raise any issue regarding Alleyne

before we lost jurisdiction. For Appellant to obtain relief now, he was 

required to have filed a timely PCRA petition, and, for the reasons we have 

explained, he failed to do so. We therefore are constrained to hold that we 

are unable to review the legality of Appellant’s sentence. See id.; 

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding, 

“[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”); cf. Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 

2015) (remanding for resentencing where Alleyne was decided during 

defendant’s direct appeal, and where defendant filed a timely PCRA petition). 

Similarly, for that same reason, we have no jurisdiction to review the other 

issues Appellant seeks to raise in this case. Accordingly, we must affirm the 

decision by the trial court.

Order affirmed. 

President Judge Emeritus Ford Elliott joins the memorandum. 

President Judge Gantman concurs in the result. 

____________________________________________

26 Alleyne was decided one day before this Court affirmed Appellant’s 

judgment’ of sentence, and, therefore, 31 days before Appellant’s judgment 

of sentence became final.
J-S08007-17

- 20 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2017