newly-recognized constitutional right exception in Pennsylvania

2025Finally, to satisfy the newly-recognized constitutional right exception under Section 9545(b)(1)(iii), the petitioner must plead and prove: “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 provided in this section,” and “the right ‘has been held’ by ‘that court’ to apply retroactively.” Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.Super. 2014) (citation and brackets omitted).

2024To satisfy the newly-recognized constitutional right exception under Section 9545(b)(1)(iii), the petitioner must plead and prove: “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 provided in this section,” and “the right ‘has been held’ by ‘that court’ to apply retroactively.” Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.Super. 2014) (citation and brackets omitted). “[A] new rule of constitutional law is applied retroactively to cases on collateral review only if the United States S

2018To the extent Appellant attempts to invoke the newly-recognized constitutional right exception under section 9545(b)(1)(iii), we note that he filed the instant PCRA petition more than sixty days after Alleyne was decided.4 42 Pa.C.S. § 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to a[ newly]-recognized constitutional right, this Court has held that the sixty-day period begins to run upon the date of the underlying judicial decision.”).

2018See 42 Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to [the newly-]recognized constitutional right, this Court has held that the sixty-day period begins to run upon the date of the underlying judicial decision.”).2 Even if Mouzon had properly invoked the exception at section 9545(b)(1)(iii), the rule established in Alleyne does not apply retroactively. ____________________________________________ 2 In his Petition, Mouzon also invokes Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), as implicating the newly-recogn

2017The PCRA court determined that the newly- recognized-constitutional-right exception to the PCRA’s one-year timeliness requirement provided in 42 Pa.C.S. §9545(b)(1)(iii) did not apply because our Supreme Court held in Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), that Miller does not apply retroactively.1 While this appeal was pending, the United States Supreme Court decided in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller announced a new substantive rule of law which applies retroactively.

2016The PCRA court determined that Appellant did not properly invoke the newly-recognized- constitutional-right exception to the PCRA’s one-year timeliness requirement provided in 42 Pa.C.S. §9545(b)(1)(iii) because our Supreme Court held in Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), that Miller does not apply retroactively.

2018See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not apply retroactively to cases pending on collateral review.”); Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating that while Alleyne claims go to the legality of the sentence, a court cannot review a legality claim where it does not have jurisdiction).3 Accordingly, Gimenez failed to meet the requirements of the newly- recognized constitutional right exception.

2018Third, even if Brown had brought his claim under the newly recognized constitutional right exception, set forth in Subsection 9545(b)(1)(iii), the Pennsylvania Supreme Court has held “Alleyne does not apply retroactively to cases pending on collateral review.” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

2019Therefore, Muniz is not availing to Miller to meet the newly-recognized constitutional right exception.6 See id.

2019In Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018), appeal denied, 195 A.3d 559 (Pa. 2018), we explained that in order to satisfy the newly recognized constitutional right exception, the new right must have been held to apply retroactively by either the Pennsylvania or United States Supreme Court.

2022See Commonwealth v Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding that the exception does not recognize “a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory life without parole sentences”); Commonwealth v. Lee, 206 A.3d 1, 10 (Pa. Super. 2019) (en banc) (“As compelling as the ‘rationale’ argument is, we find it untenable to extend Miller to one who is over the age of 18 at the time of his or her offense for purposes of satisfying the newly-recognized constitutional right exception in section 9545(b)(1)(iii).”)

2018See also Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (holding the rule rendering life imprisonment sentences imposed on juveniles unconstitutional did not apply to a defendant who was admittedly nineteen years of age at time of the offenses); Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super. 2013), appeal denied, 622 Pa. 764 , 81 A.3d 75 (2013) (holding petitioner’s argument that Miller should be extended to include defendants who were over the age of eighteen and whose brains were immature at the time of their offenses did not render his PCRA petition timely pursuant to the newly-

2020Because Appellant filed his instant PCRA petition on July 19, 2012, this amendment does not apply. -8- J-S12005-20 argument that he met the exception to the timeliness dictates of the PCRA outlined in 42 Pa.C.S. § 9545(b)(1)(iii) on the following basis: Petitioner attempted to satisfy the newly-recognized constitutional right exception, § 9545(b)(1)(iii), by invoking the new constitutional right announced in Miller v. Alabama, 132 S.Ct. 2455 (2012).

2019Most recently, on March 15, 2016, Gans filed the instant PCRA petition, pro se, seeking relief from his sentence of life imprisonment pursuant to the United States Supreme Court’s decisions in Miller v. Alabama 567 U.S. 460 (2012), and Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016),2 and asserting his claim satisfied the newly-recognized constitutional right exception to the PCRA’s time-for-filing requirements set forth in 42 Pa.C.S. § 9545(b)(1)(iii).

2024The newly-recognized constitutional right exception requires the petitioner to “prove that there is a ‘new’ constitutional right and that the right ‘has been held’ by that court to apply retroactively.” Spotz, 171 A.3d at 679 .

2021The court relied upon Commonwealth v. Spotz, 171 A.3d 675, 681 (Pa. 2017), in which our Supreme Court held that the United States Supreme Court’s decisions in Johnson and Welch do not satisfy the newly-recognized constitutional right exception to the time limit prescribed by the PCRA.

2019See Commonwealth v. Furgess, 149 A.3d 90, 91-94 (Pa.Super. 2016) (holding that petitioners’ contention that Miller should be extended to persons over age 18 whose brains were immature at time of their offenses did not bring petition within exception to time-bar for petitions asserting a newly recognized constitutional right); Commonwealth v. Lee, A.3d , 2019 WL 986978 , at *8 (Pa.Super. 2019) (en banc) (holding that, “we find it untenable to extend Miller to one who is over the age of 18 at the time of his or her offense for purposes of satisfying the newly-recognized constitutional right exce

2018See also Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (holding the rule rendering life imprisonment sentences imposed on juveniles unconstitutional did not apply to a defendant who was admittedly nineteen years of age at time of the offenses); Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super. 2013), appeal denied, 622 Pa. 764 , 81 A.3d 75 (2013) (holding petitioner’s argument that Miller should be extended to include defendants who were over the age of eighteen and whose brains were immature at the time of their offenses did not render his PCRA petition timely pursuant to the newly-

2024See id.; see also Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (explaining that with respect to the newly-recognized constitutional right exception, the time limitation of subsection (b)(2) “begins to run upon the -7- J-S09036-24 date of the underlying judicial decision,” not the date the petitioner became aware of the decision).

2024See Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (explaining that with respect to the newly recognized constitutional right exception, the time limitation of subsection (b)(2) “begins to run upon the date of the underlying judicial decision,” not the date the petitioner became aware of the decision).

2022See Commonwealth v Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding that the exception does not recognize “a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory life without parole sentences”); Commonwealth v. Lee, 206 A.3d 1, 10 (Pa. Super. 2019) (en banc) (“As compelling as the ‘rationale’ argument is, we find it untenable to extend Miller to one who is over the age of 18 at the time of his or her offense for purposes of satisfying the newly-recognized constitutional right exception in section 9545(b)(1)(iii).”)

2020While acknowledging the compelling nature of the argument that the rationale behind the Miller decision may apply to people beyond the age of majority, this Court found it “untenable to extend Miller to one who is over the age of 18 at the time of his or her offense for purposes of satisfying the newly-recognized constitutional right exception in section 9545(b)(1)(iii).” Id.

2023Since Appellant did not properly plead any exception to the PCRA’s one-year time-bar, we conclude that Appellant's petition is untimely and that our “courts are without jurisdiction to offer [Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

2021See Lopez, supra at 998; Jackson, supra at 519 ; Leggett, supra at 1147 .

2017Only the newly-recognized constitutional right exception is relevant here. 6 We examined the terms of this exception, and a petitioner’s burden thereunder, in Commonwealth v. Abdul-Salaam, 571 Pa. 219 , 812 A.2d 497 (2002): Subsection (iii) of Section 9545[ (b)(1) ] has two requirements.

2017Only the newly-recognized constitutional right exception is relevant here. 6 We examined the terms of this exception, and a petitioner’s burden thereunder, in Commonwealth v. Abdul-Salaam, 571 Pa. 219 , 812 A.2d 497 (2002): Subsection (iii) of Section 9545[ (b)(1) ] has two requirements.

2021Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal denied, 598 Pa. 786 , 959 A.2d 927 -3- J-A05042-21 (2008); see also, Pa.R.A.P. 302(a)(providing that issues not raised before the lower court are waived and cannot be raised for the first time on appeal).

2018Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super. 2007), appeal denied, 598 Pa. 786 , 959 A.2d 927 (2008); see also, Pa.R.A.P. 302(a)(providing that issues not raised before the lower court are waived and cannot be raised for the first time on appeal).

2021This Court, however, has made clear that “while Martinez represents a significant development in habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(1) of the PCRA.” Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013).

2016See Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013) (stating that “[w]hile Martinez represents a significant development in federal 4 In order to successfully invoke the newly-recognized constitutional right exception, a petitioner must plead and prove 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.A. § 9545(b)(1)(iii). -4- J-S75041-16 habeas corpus law, it is of no m

2020Appellant was born October 4, 1972, and the crimes occurred on August 24, 1993. -2- J-S01041-20 hearing as untimely filed.2 Appellant filed a response in which he attempted to invoke the newly-recognized constitutional right exception to the PCRA’s time bar.3 Appellant’s 907 Response, 9/20/2018, at 2 (citing Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (concluding that the Court’s holding in Miller prohibiting mandatory life without parole sentences for juvenile offenders applied retroactively)). ____________________________________________ 2 The certified record offers no explanation for the

2019Most recently, on March 15, 2016, Gans filed the instant PCRA petition, pro se, seeking relief from his sentence of life imprisonment pursuant to the United States Supreme Court’s decisions in Miller v. Alabama 567 U.S. 460 (2012), and Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016),2 and asserting his claim satisfied the newly-recognized constitutional right exception to the PCRA’s time-for-filing requirements set forth in 42 Pa.C.S. § 9545(b)(1)(iii).

2018Here, Gimenez invokes the newly recognized constitutional right exception, based upon Alleyne v. United States, 570 U.S. 99 (2013).

2018Here, Mouzon invokes the newly-recognized constitutional right exception, and argues that the United States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), renders his sentence illegal.

2021However, this Court has held that “the Muniz decision does not allow a petitioner to escape the PCRA time-bar as it does not satisfy the newly-recognized constitutional right exception as set forth in S[ubs]ection 9545(b)(1)(iii).” Commonwealth v. Hromek, 232 A.3d 881, 885 (Pa. Super. 2020). [T]his Court has declared that, “Muniz created a substantive rule that retroactively applies in the collateral context.” Commonwealth v. Rivera-Figueroa, 174 A.3d 674 , 678 (Pa. Super. 2017).

2021However, this Court has held that “the Muniz decision does not allow a petitioner to escape the PCRA time-bar as it does not satisfy the newly-recognized constitutional right exception as set forth in Section 9545(b)(1)(iii).” Commonwealth v. Hromek, 232 A.3d 881, 885 (Pa. Super. 2020). [T]his Court has declared that, “Muniz created a substantive rule that retroactively applies in the collateral context.” Commonwealth v. Rivera-Figueroa, 174 A.3d 674 , 678 (Pa. Super. 2017).

2020Regarding the newly- recognized constitutional right exception under Section 9545(b)(1)(iii), “a petitioner must prove that there is a new constitutional right and that the right has been held by [the Supreme Court of the United States or the Supreme Court of Pennsylvania] to apply retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa. 625 , 46 A.3d 715 (2012); 42 Pa.C.S.A. § 9545(b)(1)(iii).

2019In Commonwealth v. Chambers , 35 A.3d 34 (Pa. Super. 2011), this Court addressed an analogous claim.

2017In these consolidated appeals, 1 we consider whether the invocation of the United States Supreme Court’s decisions in Johnson v. United States, — U.S. -, 135 S.Ct. 2551 , 192 L.Ed.2d 569 (2015), and Welch v. United States, - U.S. -, 136 S.Ct. 1257 , 194 L.Ed.2d 387 (2016), satisfies the newly-recognized constitutional right exception to the time limit prescribed by the Post Conviction Relief Act (“PCRA”). 2 See 42 Pa.C.S. § 9545(b)(1) (requiring all petitions for relief to be filed within one year of the judgment of sentence becoming-final); id. § 9545(b)(l)(iii) (providing an exception to the

2017Here, Hughston invokes the newly-recognized constitutional right exception, and argues that United States v. Johnson, 135 S. Ct. 2551 (2015), renders his sentence under 42 Pa.C.S.A. § 9714 illegal.

2022See Commonwealth v. Kretchmar, 189 A.3d 459, 463-64 (Pa. Super. 2018) (explaining that changes in the application of the PCRA’s exceptions to the timebar do not qualify as new Constitutional rights for purposes of § 9545(b)(iii)). -5- J-S24012-22 from him that he could have used to impeach a Commonwealth witness.

2021We further reject Appellant’s claim that the Smith decision also constitutes newly-discovered evidence under the PCRA, since “judicial decisions do not constitute new ‘facts’ for purposes of the newly-discovered evidence exception set forth in Section 9545(b)(1)(ii).” Commonwealth v. Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018) (citation omitted).

2020See 42 Pa.C.S. § 9542. -4- J-S13032-20 having labeled his filing as a Petition for Writ of Habeas Corpus, Serrano relied on Lafler v. Cooper, 566 U.S. 156 (2012), and Martinez v. Ryan, 566 U.S. 1 (2012), to argue that his petition was timely because it was subject to the newly recognized constitutional right exception to the PCRA’s timeliness requirements.

2017In his first claim, Sheppard attempts to invoke the newly-recognized constitutional right exception based on the United States Supreme Court’s decisions in Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012), and asserts that his trial counsel was ineffective for failing to communicate the Commonwealth’s offer for a plea deal before declining the offer.

2020Although he did not expressly identify the newly recognized constitutional right exception, he relied on the rules announced in -6- J-S13032-20 Lafler and Missouri v. Frye, 566 U.S. 134 (2012), in support of his petition.

2017In his first claim, Sheppard attempts to invoke the newly-recognized constitutional right exception based on the United States Supreme Court’s decisions in Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012), and asserts that his trial counsel was ineffective for failing to communicate the Commonwealth’s offer for a plea deal before declining the offer.

2019Appellant does not recognize that his instant PCRA petition is untimely; but rather, he asserts his petition has merit since his mandatory minimum sentence is illegal under Commonwealth v. Hopkins, 632 Pa. 36 , 117 A.3d 247 (2015), Commonwealth v. Wolfe, 636 Pa. 37 , 140 A.3d 651 (2016), and Commonwealth v. Blakney, 152 A.3d 1053 (Pa.Super. 2016). -5- J-S18038-19 However, as indicated supra, the courts have no jurisdiction to address the merits of an untimely PCRA petition.3 In any event, assuming, arguendo, Appellant intended to invoke the third timeliness exception, that the decisions cited

2019Appellant does not recognize that his instant PCRA petition is untimely; but rather, he asserts his petition has merit since his mandatory minimum sentence is illegal under Commonwealth v. Hopkins, 632 Pa. 36 , 117 A.3d 247 (2015), Commonwealth v. Wolfe, 636 Pa. 37 , 140 A.3d 651 (2016), and Commonwealth v. Blakney, 152 A.3d 1053 (Pa.Super. 2016). -5- J-S18038-19 However, as indicated supra, the courts have no jurisdiction to address the merits of an untimely PCRA petition.3 In any event, assuming, arguendo, Appellant intended to invoke the third timeliness exception, that the decisions cited

2022Fahy, 737 A.2d at 222 ; Watts, 23 A.3d at 983 .

2016See 42 Pa.C.S.A. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214 , 223 _5_ J. 573001/16 As stated above, appellant argues that Subsection 9545(b)(1)(iii), the newly recognized constitutional right exception, applies, based on Alleyne and Newman.