J-S47004-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMEEN MCNAIR : : Appellant : No. 810 EDA 2024
Appeal from the PCRA Order Entered March 1, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006577-2009
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 18, 2025
Ameen McNair (“McNair”) appeals the denial of his petition under the
Post Conviction Relief Act (“PCRA”).1 We affirm.
In December 2009, the Honorable Glenn B. Bronson convicted McNair
of robbery and criminal conspiracy relating to an incident in which he and a
conspirator committed a gunpoint robbery of his grandmother’s boyfriend in
the man’s home in February 2009. In February 2010, Judge Bronson imposed
an aggregate sentence of three to six years of imprisonment followed by two
years of reporting probation for McNair’s offenses. Judge Bronson denied
McNair’s post-sentence motion. In March 2011, this Court affirmed McNair’s
judgment of sentence. See Commonwealth v. McNair, 26 A.3d 1212 (Pa.
Super. 2011) (unpublished memorandum). The Pennsylvania Supreme Court
____________________________________________
1 See 42 Pa.C.S.A. § 9541-9546. J-S47004-24
denied allowance of appeal. See Commonwealth v. McNair, 32 A.3d 1276
(Pa. 2011).
On November 5, 2014, while on parole for the above-referenced case,
McNair committed a new robbery and was convicted and sentenced to ten to
twenty years of incarceration. Because that robbery constituted a violation of
parole in this case, in February 2016, Judge Bronson revoked McNair’s parole
and anticipatorily revoked probation and resentenced him to a total of five to
ten years of incarceration. Judge Bronson denied McNair’s reconsideration
motion. McNair filed an untimely notice of appeal but was granted
reinstatement of his appellate rights. On February 7, 2018, this Court affirmed
McNair’s judgment of sentence. See Commonwealth v. McNair, 2018 WL
770475 (Pa. Super. 2018) (unpublished memorandum). McNair did not seek
allowance of appeal.
In July 2018, McNair filed a pro se PCRA petition. The PCRA court
appointed counsel but later permitted him to withdraw. The court appointed
new counsel, who filed a letter in March 2019 pursuant to Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), averring McNair’s
petition lacked merit and seeking permission to withdraw. The PCRA court
dismissed McNair’s petition on July 11, 2019, and permitted counsel to
withdraw. McNair did not appeal the court’s decision.
In December 2022, instant counsel entered his appearance and in July
2023, filed a PCRA petition. In January 2024, the PCRA court issued a notice
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of intent to dismiss pursuant to Pa.R.Crim.P. 907, and in March 2024,
dismissed the petition. McNair appealed and instant counsel and the trial court
complied with Pa.R.A.P. 1925.
McNair raises two issues for our review:
1. Did the [PCRA] court improperly dismiss [McNair’s PCRA] petition as untimely when he met the requirements of the “newly recognized constitutional right exception to the PCRA’s time-bar?
2. Did the [PCRA] court err by refusing to analyze whether Commonwealth v. Rosario, 294 A.3d 338 (Pa. 2023)[,] applies retroactively under the test laid out in Teague v. Lane, 489 U.S. 288 (1989)?
McNair’s Brief at 4.
McNair’s claims implicate the newly recognized constitutional right
exception to the PCRA’s jurisdictional time-bar. See 42 Pa.C.S.A.
§ 9545(b)(1)(iii).
Our standard of review of an order dismissing a PCRA petition is well-
settled:
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).2
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner explicitly pleads and proves one of three exceptions set forth under
section 9545(b)(1), which provides:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner 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 ____________________________________________
2 A judgment of sentence becomes 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. See 42 Pa.C.S.A. § 9545(b)(3).
McNair’s judgment of sentence became final on March 9, 2018, thirty days after the February 7, 2018, denial of his direct appeal when his time for filing a petition for allowance of appeal in the Pennsylvania Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). McNair had until March 11, 2019, to file the instant PCRA petition. See 1 Pa.C.S.A. § 1908. He filed the instant petition in July 2023. Thus, McNair’s petition is facially untimely under the PCRA, which precludes review of the merits of the issues raised in the petition, absent a time-bar exception. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
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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) (emphasis added). See Commonwealth v.
Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (holding to establish the new
constitutional right exception, a petitioner must show a constitutional right
recognized by the United States or Pennsylvania Supreme Courts and deemed
retroactively applicable to cases on collateral review at the time the PCRA
petition was filed).
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J-S47004-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMEEN MCNAIR : : Appellant : No. 810 EDA 2024
Appeal from the PCRA Order Entered March 1, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006577-2009
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 18, 2025
Ameen McNair (“McNair”) appeals the denial of his petition under the
Post Conviction Relief Act (“PCRA”).1 We affirm.
In December 2009, the Honorable Glenn B. Bronson convicted McNair
of robbery and criminal conspiracy relating to an incident in which he and a
conspirator committed a gunpoint robbery of his grandmother’s boyfriend in
the man’s home in February 2009. In February 2010, Judge Bronson imposed
an aggregate sentence of three to six years of imprisonment followed by two
years of reporting probation for McNair’s offenses. Judge Bronson denied
McNair’s post-sentence motion. In March 2011, this Court affirmed McNair’s
judgment of sentence. See Commonwealth v. McNair, 26 A.3d 1212 (Pa.
Super. 2011) (unpublished memorandum). The Pennsylvania Supreme Court
____________________________________________
1 See 42 Pa.C.S.A. § 9541-9546. J-S47004-24
denied allowance of appeal. See Commonwealth v. McNair, 32 A.3d 1276
(Pa. 2011).
On November 5, 2014, while on parole for the above-referenced case,
McNair committed a new robbery and was convicted and sentenced to ten to
twenty years of incarceration. Because that robbery constituted a violation of
parole in this case, in February 2016, Judge Bronson revoked McNair’s parole
and anticipatorily revoked probation and resentenced him to a total of five to
ten years of incarceration. Judge Bronson denied McNair’s reconsideration
motion. McNair filed an untimely notice of appeal but was granted
reinstatement of his appellate rights. On February 7, 2018, this Court affirmed
McNair’s judgment of sentence. See Commonwealth v. McNair, 2018 WL
770475 (Pa. Super. 2018) (unpublished memorandum). McNair did not seek
allowance of appeal.
In July 2018, McNair filed a pro se PCRA petition. The PCRA court
appointed counsel but later permitted him to withdraw. The court appointed
new counsel, who filed a letter in March 2019 pursuant to Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), averring McNair’s
petition lacked merit and seeking permission to withdraw. The PCRA court
dismissed McNair’s petition on July 11, 2019, and permitted counsel to
withdraw. McNair did not appeal the court’s decision.
In December 2022, instant counsel entered his appearance and in July
2023, filed a PCRA petition. In January 2024, the PCRA court issued a notice
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of intent to dismiss pursuant to Pa.R.Crim.P. 907, and in March 2024,
dismissed the petition. McNair appealed and instant counsel and the trial court
complied with Pa.R.A.P. 1925.
McNair raises two issues for our review:
1. Did the [PCRA] court improperly dismiss [McNair’s PCRA] petition as untimely when he met the requirements of the “newly recognized constitutional right exception to the PCRA’s time-bar?
2. Did the [PCRA] court err by refusing to analyze whether Commonwealth v. Rosario, 294 A.3d 338 (Pa. 2023)[,] applies retroactively under the test laid out in Teague v. Lane, 489 U.S. 288 (1989)?
McNair’s Brief at 4.
McNair’s claims implicate the newly recognized constitutional right
exception to the PCRA’s jurisdictional time-bar. See 42 Pa.C.S.A.
§ 9545(b)(1)(iii).
Our standard of review of an order dismissing a PCRA petition is well-
settled:
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).2
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner explicitly pleads and proves one of three exceptions set forth under
section 9545(b)(1), which provides:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner 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 ____________________________________________
2 A judgment of sentence becomes 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. See 42 Pa.C.S.A. § 9545(b)(3).
McNair’s judgment of sentence became final on March 9, 2018, thirty days after the February 7, 2018, denial of his direct appeal when his time for filing a petition for allowance of appeal in the Pennsylvania Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). McNair had until March 11, 2019, to file the instant PCRA petition. See 1 Pa.C.S.A. § 1908. He filed the instant petition in July 2023. Thus, McNair’s petition is facially untimely under the PCRA, which precludes review of the merits of the issues raised in the petition, absent a time-bar exception. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
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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) (emphasis added). See Commonwealth v.
Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (holding to establish the new
constitutional right exception, a petitioner must show a constitutional right
recognized by the United States or Pennsylvania Supreme Courts and deemed
retroactively applicable to cases on collateral review at the time the PCRA
petition was filed). A PCRA court lacks jurisdiction to entertain an untimely
PCRA petition unless a petitioner can plead and prove a time-bar exception
and the exercise of due diligence in discovering his claim. See
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 784 (Pa. 2000); 42
Pa.C.S.A. § 9545(b)(2).
McNair combines his two issues, asserting the PCRA court erroneously
found he failed to establish the new constitutional right time-bar exception.
Although he concedes no Court has held Rosario applies retroactively, McNair
asserts under the Teague framework giving retroactive effect to watershed
rules of criminal procedure, he is due relief and resentencing. See McNair’s
Brief at 10-11, citing Commonwealth v. Washington, 142 A.3d 810, 813
(Pa. 2016). McNair further asserts when a new rule of substantive
constitutional law controls the outcome of a case, the state court must apply
the rule retroactively. See McNair’s Brief at 11-12, citing Montgomery v.
Louisiana, 577 U.S. 190, 200 (2016). Finally, McNair analogizes this case to
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Commonwealth v. McIntyre, 232 A.3d 609 (Pa. 2020), in which the
Supreme Court found a sentence void ab initio because it found the applicable
sentencing statute unconstitutional. See McNair’s Brief at 14.
The PCRA court found McNair’s PCRA petition untimely filed, requiring
McNair to establish a time-bar exception to obtain review of his petition. The
PCRA court held Rosario did not recognize a new constitutional right but
based its ruling on a “plain language” interpretation of the sentencing code.
See PCRA Court Opinion, 5/14/24, at 7, citing Rosario, 294 A.3d at 346-
56. Additionally, the PCRA court noted neither the United States Supreme
Court nor the Pennsylvania Supreme Court has held the right announced in
Rosario applies retroactively. See PCRA Court Opinion, 5/24/24, at 7.
Because neither Court has so ruled and because Rosario does not recognize
a new constitutional right, the PCRA court held McNair failed to establish the
new constitutional rule exception. See id. at 8, citing Leggett, 16 A.3d at
1447-48.
The PCRA court additionally determined Teague’s retroactivity
analysis is irrelevant for the purposes of the newly recognized constitutional
right exception. It did so first because neither the United States Supreme
Court nor the Pennsylvania Supreme Court has found Rosario announces a
new constitutional right that applies retroactively, and second because
“when considering a facially untimely petition, it is not within [a PCRA
court’s] purview to conduct a retroactivity analysis.” See PCRA Court
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Opinion, 5/24/24, at 8, citing Commonwealth v. Reid, 235 A.3d 1124,
1154, n.18 (Pa. 2020). The PCRA court thus determined it lacked jurisdiction
to consider the merits of McNair’s substantive claim.
The PCRA court correctly ruled. Neither the United States Supreme
Court nor the Pennsylvania Supreme Court had held at the time of McNair’s
petition Rosario announced a new constitutional right that applied
retroactively. For that reason alone, McNair failed to establish the
application of the newly recognized constitutional right exception, 42
Pa.C.S.A. § 9545(b)(1)(iii). See Commonwealth v. Taylor, 283 A.3d 178,
187 (Pa. 2022) (stating that the “has been held” language of 42 Pa.C.S.A. §
9545(b)(1)(iii) “means the action has already occurred, i.e., [the U.S.
Supreme Court or Pennsylvania Supreme Court] has already held the new
constitutional right to be retroactive to cases on collateral review”). In
addition, as the PCRA court and panels of this Court have stated, the
Pennsylvania Supreme Court decided Rosario on statutory, not
constitutional, grounds. See PCRA Court Opinion, 5/14/24, at 7, citing
Rosario, 294 A.3d at 346-56. Accord Commonwealth v. Peiffer, 2024
WL 4589862 at *3, n.7 (Pa. Super., October 28, 2024) (unpublished
memorandum);3 Commonwealth v. Stains, 323 A.3d 234, at *4 (Pa.
3 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this
Court filed after May 1, 2019, for their persuasive value).
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Super. 2024) (unpublished memorandum). Moreover, this Court has
declined to give Rosario retroactive effect. See Commonwealth v. Diaz,
314 A.3d 852, 855 (Pa. Super. 2024). Thus, the PCRA court did not err by
finding McNair failed to establish the new constitutional right exception, and
that it lacked jurisdiction to conduct a retroactivity analysis on his untimely
PCRA petition. See Reid, 235 A.3d at 1154, n.18.4 Because the PCRA court
committed no legal error, we affirm the PCRA court’s order dismissing
McNair’s petition.
Order affirmed.
4 McNair’s authority for the proposition a retroactive decision may be applied
on PCRA review is inapposite. In Rivera-Figueroa, 174 A.3d 674 (Pa. Super. 2017), the Pennsylvania Supreme Court had declared unconstitutional the statute that was the basis of the PCRA petition and had also declared a new rule of substantive rule of constitutional law. See id., 174 A.3d at 677-78. No such declaration occurred here. Moreover, Rivera- Figueroa addressed a timely-filed PCRA petition, not an untimely one. See Commonwealth v. Knecht, 219 A.3d 689, 692 (Pa. Super. 2019) (holding Rivera-Figueroa addressed a timely filed PCRA petition and an untimely filed PCRA petition must prove the application of 42 Pa.C.S.A. § 9545(b)(1)(iii)). Accord Commonwealth v. Murphy, 180 A.3d 402, 406 (Pa. Super. 2018). McIntyre is similarly inapposite because the Supreme Court had declared the statute at issue unconstitutional and the appellant had filed a timely PCRA petition preserving the claim. See McIntyre, 232 A.3d at 619.
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Date: 2/18/2025
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