J-S41012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

WENDELL F. JOHNSON,

                            Appellant                  No. 3227 EDA 2015


           Appeal from the PCRA Order Entered September 18, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1238161-1990


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JULY 14, 2016

        Appellant, Wendell F. Johnson, appeals pro se from the September 18,

2015 order denying, as untimely, his petition under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The facts of Appellant’s underlying convictions are not necessary to

our disposition of his appeal.          The PCRA court briefly summarized the

pertinent procedural history of Appellant’s case, as follows:

               On September 17, 1992, [Appellant] was sentenced to 65
        to 130 years’ incarceration for five counts of robbery as a felony
        [of] the first degree, two counts of conspiracy and two counts of
        possession of an instrument of crime by the Honorable Marvin
        Halbert. After [Appellant] filed an appeal, the Superior Court
        remanded the case for re-sentencing on the grounds that the
        trial court had not referenced the applicable guidelines for the
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*
    Former Justice specially assigned to the Superior Court.
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      crimes for which [Appellant] was convicted.1          Thereafter,
      [Appellant] filed another appeal which was dismissed due to the
      failure of his lawyer to file a brief. [Appellant] then filed a
      petition under the [PCRA] and his appellate rights were
      reinstated, but the Superior Court declined to consider the issue
      of the appropriateness of [Appellant’s] sentence, and the
      Pennsylvania Supreme Court denied allocatur on February 1,
      2000. [See Commonwealth v. Johnson, 742 A.2d 205 (Pa.
      Super. 1999) (unpublished memorandum), appeal denied, 751
      A.2d 186 (Pa. 2000).] [Appellant’s] judgment became final
      ninety days thereafter when his ability to file for discretionary
      review in the United States Supreme Court had expired.
         1
           [Appellant] was subsequently re-sentenced on May 29,
         1996, and received the same 65 to 130 years’
         incarceration.

            [Appellant’s] next [PCRA] petition was filed on February
      26, 2001, wherein counsel was appointed to represent [him].
      Counsel then filed a letter pursuant to Commonwealth v.
      Finley, 550 A.2d 213 (Pa. Super. 1988), and this court
      dismissed the petition based on a lack of merit.

            The instant PCRA petition … was filed on June 24, 2015,
      and a [Pa.R.Crim.P.] 907 Notice of Intent to Dismiss was mailed
      to [Appellant] on August 18, 2015.

PCRA Court Opinion, 9/18/15, at 1-2 (one footnote omitted).

      Appellant did not respond to the PCRA court’s Rule 907 notice, and on

September 18, 2015, the court issued an order, and an accompanying

opinion, dismissing his petition as being untimely filed.   Appellant filed a

timely, pro se notice of appeal.     The court did not order him to file a

Pa.R.A.P. 1925(b) statement, nor did the court draft a Rule 1925(a) opinion,

presumably because it set forth its rationale for denying Appellant’s petition

in its September 18, 2015 opinion, quoted supra. Herein, Appellant presents

one question for our review: “Did the Honorable PCRA [c]ourt err when it

dismissed [Appellant’s] PCRA Petition without a hearing, and where …

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[Appellant] pled and would have been able to prove that the [c]ourt imposed

an illegal sentence[?]” Appellant’s Brief at 2.

      This Court’s standard of review regarding an order denying 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.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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


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            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)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on May 1, 2000,

ninety days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment

of sentence becomes final at the conclusion of direct review or the expiration

of the time for seeking the review); Commonwealth v. Owens, 718 A.2d

330, 331 (Pa. Super. 1998) (directing that under the PCRA, petitioner’s

judgment of sentence becomes final ninety days after our Supreme Court

rejects his or her petition for allowance of appeal since petitioner had ninety

additional days to seek review with the United States Supreme Court).

Consequently, Appellant’s current petition, filed in June of 2015, is patently

untimely, and for this Court to have jurisdiction to review the merits thereof,

Appellant must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

      In his petition, and on appeal, Appellant argues that several

mandatory minimum sentences imposed in his case are illegal under

Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the United

States Supreme Court held that “facts that increase mandatory minimum

sentences must be submitted to the jury” and found beyond a reasonable


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doubt.   Alleyne, 133 S.Ct. at 2163.      Presumably, Appellant’s reliance on

Alleyne is an effort to satisfy the ‘new constitutional right’ exception of

section 9545(b)(1)(iii). His attempt do so, however, fails outright because

Alleyne was decided on June 17, 2013, and Appellant’s petition was not

filed until June 24, 2015, over two years later. Consequently, Appellant has

not satisfied the 60-day requirement of section 9545(b)(2).

      Nevertheless, we also note that Appellant’s reliance on Alleyne cannot

satisfy the ‘new constitutional right’ exception of section 9545(b)(1)(iii). In

Commonwealth v. Abul-Salaam, 812 A.2d 487 (Pa. 2002), our Supreme

Court stated:

      Subsection (iii) of Section 9545 [(b)(1)] has two requirements.
      First, it provides that the right asserted is a constitutional right
      that was recognized by the Supreme Court of the United States
      or this court after the time provided in this section. Second, it
      provides that the right “has been held” by “that court” to apply
      retroactively. Thus, a petitioner must prove that there is a “new”
      constitutional right and that the right “has been held” by that
      court to apply retroactively. The language “has been held” is in
      the past tense. These words mean that the action has already
      occurred, i.e., “that court” has already held the new
      constitutional right to be retroactive to cases on collateral
      review. By employing the past tense in writing this provision, the
      legislature clearly intended that the right was already recognized
      at the time the petition was filed.

Id. at 501.

      In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this

Court held that Alleyne does not meet the second requirement of section

9545(b)(1)(iii), stating:




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       Even assuming that Alleyne did announce a new constitutional
       right, neither our Supreme Court, nor the United States
       Supreme Court has held that Alleyne is to be applied
       retroactively to cases in which the judgment of sentence had
       become final. This is fatal to Appellant's argument regarding the
       PCRA time-bar. This Court has recognized that a new rule of
       constitutional law is applied retroactively to cases on collateral
       review only if the United States Supreme Court or our Supreme
       Court specifically holds it to be retroactively applicable to those
       cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
       Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
       citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
       L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor,
       933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes
       of subsection (iii), the language ‘has been held by that court to
       apply retroactively’ means the court announcing the rule must
       have also ruled on the retroactivity of the new constitutional
       right, before the petitioner can assert retroactive application of
       the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715,
       951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy
       the new constitutional right exception to the time-bar.

Id. at 995. Since Miller, neither our Supreme Court, nor the United States

Supreme Court, has held that Alleyne applies retroactively. Thus, Alleyne

still cannot be the basis for application of the timeliness exception of section

9545(b)(1)(iii).1

       We acknowledge that since Alleyne, this Court has issued a line of

cases deeming mandatory minimum sentencing statutes unconstitutional.

Notably, in Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),

we held that the mandatory sentencing provision under which Appellant was

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1
  Obviously, if at some point our Supreme Court or the United States
Supreme Court expressly holds that Alleyne does apply retroactively,
Appellant will have 60 days from the date of that decision to file a PCRA
petition reasserting the exception set forth in section 9545(b)(1)(iii).



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sentenced, 42 Pa.C.S. § 9712 (Sentences for offenses committed with

firearms), is unconstitutional in its entirety in light of Alleyne and this

Court’s en banc decision in Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (en banc) (holding that one mandatory minimum sentencing

provision, 42 Pa.C.S. § 9712.1, is unconstitutional, in its entirety, in light of

Alleyne).   “It is also well-established that ‘[i]f no statutory authorization

exists for a particular sentence, that sentence is illegal and subject to

correction.’” Commonwealth v. Fennell, 105 A.3d 13, 16 (Pa. Super.

2014) Id. (quoting Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.

Super. 2014) (citation omitted)).      Arguably, then, Appellant’s sentence,

imposed under a now-unconstitutional sentencing statute, is illegal.

      However, because Appellant’s PCRA petition is untimely, and he has

not satisfied a timeliness exception, we do not have jurisdiction to correct

that illegal sentence.   See Commonwealth v. Fahy, 737 A.2d 214, 222

(Pa. 1999) (“[A]lthough a legality of sentence is always subject to review

within the PCRA, claims must first satisfy the PCRA’s time limits or one of

the exceptions thereto.”); Commonwealth v. Fowler, 930 A.2d 586, 592

(Pa. Super. 2007) (“[A] court may entertain a challenge to the legality of the

sentence so long as the court has jurisdiction to hear the claim. In the PCRA

context, jurisdiction is tied to the filing of a timely PCRA petition.”). Thus,

we affirm the PCRA court’s denial of Appellant’s untimely petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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