J-S33013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYRIK FLOYD                                :
                                               :
                       Appellant               :   No. 2778 EDA 2017

                   Appeal from the PCRA Order August 1, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0302111-2003


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 13, 2018

        Tyrik Floyd appeals, pro se, from the order entered on August 1, 2017,

in the Court of Common Pleas of Philadelphia County, dismissing as untimely

his first petition filed pursuant to the Post Conviction Relief Act (PCRA). 1,2

Floyd seeks relief from the judgment of sentence of five to ten years’

imprisonment, imposed on May 31, 2006, upon revocation of probation. 3 In

____________________________________________


   Former Justice specially assigned to the Superior Court.

1   See 42 Pa.C.S. § 9541 et seq.

2 The PCRA court granted appointed counsel’s motion to withdraw from
representation. See Order, 8/1/2017.

3 The five to ten years sentence was imposed “consecutive to any sentence
currently serving.” Sentencing Order, 5/31/2006. There is no indication in
the record or suggestion by the parties that Floyd has finished serving his
revocation sentence. See 42 Pa.C.S. § 9543(a)(1)(i) (petitioner must be
J-S33013-18



his sole issue on appeal, Floyd avers he was sentenced pursuant to an

unconstitutional mandatory minimum statute.4 Based upon the following, we

affirm.

       The PCRA court summarized the relevant facts as follows:

       On May 8, 2003, [Floyd] pleaded guilty to the Honorable Rose
       Marie DeFino-Nastasi to Possession with the Intent to Deliver a
       Controlled Substance, 35 P.S. § 780-113(a)(30). The same day,
       he agreed to a negotiated sentence of three (3) years reporting
       probation. No appeal was taken.

       On May 31, 2006, [Floyd] was sentenced for a direct violation of
       his probation to five (5) to ten (10) years [of] incarceration. The
       basis for the direct violation was a conviction for Third Degree
       Murder[,] which occurred while [Floyd] was on probation. No
       appeal was taken from this sentence. Therefore, judgment of
       sentence became final on June 30, 2006.[5] Pursuant to 42
       Pa.C.S.A. § 9545(b)(1)[,] [Floyd] had until [Monday, July 2, 2007]
       to file a timely PCRA.

       On May 13, 2015, [Floyd] filed the instant, untimely PCRA petition.

       On March 27, 2017, PCRA counsel filed a [Turner/Finley6] letter
       of no merit and a Motion to Withdraw as Counsel.

____________________________________________


“currently serving a sentence of imprisonment, probation, or parole for the
crime” to be eligible for PCRA relief).

4 Floyd does not specify the mandatory minimum statute allegedly applied in
this case. The PCRA court states Floyd was not sentenced pursuant to a
mandatory minimum statute. See PCRA Court Opinion, 10/31/2017, at 2.

5Since Floyd had a 30-day period to file a direct appeal pursuant to Pa.R.A.P.
903(a), the judgment became final a month after the date of his sentencing.
See 42 Pa.C.S. § 9545(b)(3) (“a judgment becomes final … at the expiration
of the time for seeking the review”).

6 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

                                           -2-
J-S33013-18


      On June 15, 2017, the PCRA Court accepted counsel’s
      [Turner/Finley] letter of no merit and denied the PCRA petition.
      Thereafter, the Court sent a [Rule 907] notice informing [Floyd]
      of its intent to dismiss the PCRA [petition] if [Floyd] failed to
      respond.    [The Rule 907 notice explained the petition was
      untimely.] [Floyd] did not respond to the 907 notice.

PCRA Court Opinion, 10/31/2017, at 1-2.

      On August 1, 2017, the PCRA court dismissed Floyd’s petition. Floyd

filed this timely appeal and complied with the PCRA court’s order to file a

Pa.R.A.P. 1925(b) concise statement.

      Our standard of review for the denial of a PCRA petition is well-settled:

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination is supported by the record and free of
      legal error. The scope of review is limited to the findings of the
      PCRA court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the trial level. It is well-settled
      that a PCRA court’s credibility determinations are binding upon an
      appellate court so long as they are supported by the record.
      However, this Court reviews the PCRA court's legal conclusions de
      novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

      Floyd argues he was sentenced pursuant to a mandatory minimum

sentencing statute, rendered unconstitutional by Alleyne v. United States,

570 U.S. 99, 103 (2013) (“[a]ny fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found beyond a

reasonable doubt.”).

      At the outset, we conclude Floyd’s PCRA petition is time-barred. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality

                                       -3-
J-S33013-18


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.”).

      Relevant to this appeal, Section 9545 of the PCRA states:

      (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:
                                      ...

            (iii) 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). Here, Floyd’s petition was filed on May 13, 2015,

almost nine years after his sentence became final on June 30, 2006, far

exceeding the PCRA’s one-year time bar. Floyd, therefore, attempts to rely

on an exception to the time requirement, claiming his sentence was illegal

pursuant to the “new constitutional right” introduced in Alleyne, supra, which

he avers should apply retroactively. 42 Pa.C.S. § 9545(b)(1)(iii).

      Floyd’s claim fails, however, since petitions invoking an exception must

be filed “within 60 days of the date the claim could have been presented.” 42

Pa.C.S. § 9545(b)(2). As correctly noted by the PCRA Court, Alleyne was

decided on June 17, 2013, and Floyd’s PCRA petition was filed two years later,

well beyond the 60-day deadline.        Additionally, in Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016), our Supreme Court has held

that Alleyne does not apply retroactively on collateral review.              In


                                     -4-
J-S33013-18


Commonwealth v. Dimatteo, 177 A.3d 182 (Pa. 2018), our Supreme Court

reaffirmed its holding in Washington.        Therefore, Floyd cannot satisfy

§ 9545(b)(1)(iii).

       Finally, Floyd’s citation to Welch v. United States, 136 S.Ct. 1257

(2016) and Commonwealth v. Barnes, 157 A.3d 121 (Pa. 2016), does not

compel a different result.   Welch dealt with whether Johnson v. United

States, 135 S.Ct. 2551 (2015), applied retroactively to cases on collateral

review.    Welch, supra, 136 S.Ct. at 1268.     The Johnson Court held the

“residual clause” of 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague.

Id. at 1261. Welch’s holding that Johnson applies retroactively on collateral

review has no bearing on this case, as neither Welch nor Johnson addressed

Alleyne. Furthermore, in Barnes, in contrast to the procedural posture here,

the Alleyne claim was raised on direct appeal. Barnes, supra, 157 A.3d at

122.    Barnes held that an Alleyne challenge implicates the legality of

sentence for issue preservation purposes, and, therefore, is nonwaivable. Id.

at 126-127. Barnes did not hold Alleyne to apply retroactively in the PCRA

context.

       Accordingly, in light of the above, we conclude Floyd’s PCRA petition is

untimely and Floyd cannot satisfy an exception to the PCRA’s timeliness

requirement.

       Order affirmed.




                                     -5-
J-S33013-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/18




                          -6-
