Opinion
J-S72015-16 No. 858 MDA 2016
10-06-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL DAVID FERNSLER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 11, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0002434-2007 BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Michael David Fernsler, appeals from the order entered in the Lebanon County Court of Common Pleas, which denied his third petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinions, the PCRA court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Nothing in the certified record on appeal indicates that the court ordered a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b), or that Appellant filed one.
Appellant raises the following issues for our review:
WHETHER THE [PCRA] COURT ERRED IN FINDING [APPELLANT'S] PCRA AS UNTIMELY WHERE THE UNITED STATES SUPREME COURT IN MONTGOMERY V. LOUISIANA HELD THAT ANY CASES OUT OF THEIR COURT THAT WERE SUBSTANTIVE IN NATURE WERE RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN DOING SO CAUSED ALLEYNE V. U.S. TO BECOME RETROACTIVELY APPLICABLE TO [APPELLANT].(Appellant's Brief at vi).
WHETHER THE [PCRA] COURT ERRED IN FINDING [APPELLANT'S] PCRA AS UNTIMELY WHERE THE UNITED STATES SUPREME COURT IN MONTGOMERY V. LOUISIANA HELD THAT ANY CASES OUT OF THEIR COURT THAT WERE SUBSTANTIVE IN NATURE WERE RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN DOING SO CAUSED LAFLER V. COOPER , MISSOURI V. FRYE , FERRI V. ACKERMAN , AND STRICKLAND V. WASHINGTON TO BECOME RETROACTIVELY APPLICABLE TO [APPELLANT].
WHETHER THE [PCRA] COURT ERRED IN FINDING [APPELLANT'S] PCRA AS UNTIMELY WHERE THE UNITED STATES SUPREME COURT IN MONTGOMERY V. LOUISIANA HELD THAT ANY CASES OUT OF THEIR COURT THAT WERE SUBSTANTIVE IN NATURE WERE RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN DOING SO CAUSED MIRANDA V. ARIZONA , MICHIGAN V. MOSLEY , ARIZONA V. ROBERSON , MINNICK V. MISSISSIPPI , EDWARDS V. ARIZONA TO BECOME RETROACTIVELY APPLICABLE TO [APPELLANT].
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will not be disturbed unless the certified record provides no support for the findings. Commonwealth v. Taylor , 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court can determine from the record that there are no genuine issues of material fact. Commonwealth v. Jones , 942 A.2d 903, 906 (Pa.Super. 2008), appeal denied, 598 Pa. 764, 956 A.2d 433 (2008). The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Hackett , 598 Pa. 350, 956 A.2d 978 (2008).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Robert J. Eby, we conclude Appellant's issues merit no relief. The trial court opinions comprehensively discuss and properly dispose of the questions presented. ( See PCRA Court Opinions, filed April 4, 2016 and May 11, 2016) (finding: Appellant's third PCRA petition was untimely and no timeliness exception applied; all cases Appellant cited in attempt to invoke "new constitutional right" exception were either inapplicable to his case, did not announce "new" constitutional right, announced new right years before Appellant's deadline to file timely PCRA petition expired, and/or related to claims Appellant already litigated in previous PCRA petitions). We agree with the court's assessment.
Furthermore, neither the U.S. Supreme Court nor the Pennsylvania Supreme Court has held that Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), or its state progeny apply retroactively. See Commonwealth v. Miller , 102 A.3d 988 (Pa.Super. 2014) (holding that even if Alleyne announced new constitutional right, neither our Supreme Court nor United States Supreme Court has held that Alleyne applies retroactively, which is fatal to appellant's attempt to satisfy "new constitutional right" exception to timeliness requirements of PCRA). See also Commonwealth v. Washington , ___ A.3d ___, 2016 WL 3909088 (Pa. filed July 19, 2016) (holding Alleyne does not apply retroactively on collateral review to challenge mandatory minimum sentence as "illegal"). Additionally, the certified record makes clear Appellant was not subjected to any mandatory minimum sentences. Therefore, Appellant's petition remains time barred; and the PCRA court lacked jurisdiction to review it. See Hackett , supra. Accordingly, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/6/2016
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