J-S31023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

STERLING J. ELLIS,

                          Appellant                  No. 1898 MDA 2014


         Appeal from the PCRA Order entered November 10, 2014,
              in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0001991-2004


BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.:                                FILED MAY 18, 2015

      Sterling J. Ellis (“Appellant”) appeals pro se from the order denying his

latest petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history are as follows: On July 8,

2004, a jury convicted Appellant of burglary and criminal conspiracy.        On

August 16, 2004, the trial court sentenced Appellant to an aggregate term of

ten to twenty years of imprisonment. Appellant filed a timely appeal. In an

unpublished memorandum filed on August 4, 2005, we affirmed Appellant’s

judgment of sentence. Commonwealth v. Ellis, 885 A.2d 574 (Pa. Super.

2005).   On December 13, 2005, our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Ellis, 890 A.2d 1056
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(Pa. 2005).   Appellant did not file a petition for certiorari to the United

States Supreme Court.

      Over the ensuing years, Appellant filed serial petitions seeking post-

conviction relief. All of these attempts were unsuccessful. The PCRA court,

the Honorable Richard K. Renn, summarized the most recent procedural

history as follows:

             The PCRA petition that is the subject of this appeal was
         filed on August 18, 2014. In that petition [Appellant]
         argued that the application of 42 Pa.C.S.A. § 9714
         mandatory minimum sentence violated the United States
         Supreme Court’s decision in Alleyne v. United States.
         We disagreed and filed our [Pa.R.Crim.P. 907] Notice of
         Intent to Dismiss without a Hearing on August 28, 2014.
         In that letter we explained that [Appellant’s] petition would
         be dismissed for two reasons: (1) the arguments made in
         the petition challenged the discretionary aspects of
         sentencing, which could have been raised on direct appeal;
         and (2) the petition was not timely filed and [Appellant]
         failed to raise an exception under 42 Pa.C.S.A. §
         9545(b)(1).

            On October 17, 2014, [Appellant] responded by
         essentially arguing that although the United States
         Supreme Court did not make Alleyne retroactive, the
         Pennsylvania Supreme Court may still make that
         determination, citing Commonwealth v. Johnson, 93
         A.3d 806 (Pa. 2014).        We denied [Appellant’s] PCRA
         petition on October 21, 2014. We amended the Order on
         November 10, 2014, only to include notice of [Appellant’s]
         right to appeal our decision.

PCRA Court Opinion, 1/6/15, at 2.        This timely appeal followed.    Both

Appellant and Judge Renn have complied with Pa.R.A.P. 1925.

      Within his pro se brief, Appellant raises the following issue:



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            WHETHER THE [PCRA] COURT ERRED IN DENYING
         [APPELLANT’S] PCRA PETITION BECAUSE THE UNITED
         STATES SUPREME [COURT’S] DECISION IN [Alleyne v.
         United States], 133 S.Ct. 2151 (2013), CREATED A NEW
         CONSTITUTIONAL RIGHT THAT APPLIES RETROACTIVELY.

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order dismissing 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).        Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      We initially examine whether the PCRA court correctly concluded that

Appellant’s serial PCRA petition was untimely.           The timeliness of a post-

conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010) (citation omitted).            Thus, if a PCRA petition is

untimely, neither an appellate court nor the PCRA court has jurisdiction over

the petition.    Id.    “Without jurisdiction, we simply do not have the legal

authority to address the substantive claims” raised in an untimely petition.

Id.

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      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Appellant’s judgment of sentence became final on March 13, 2006,

after the expiration of time for filing a petition for certiorari to the United

States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.

In order to be timely, Appellant had to file his petition by March 13, 2007.


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Appellant did not file his latest PCRA petition until August 18, 2014, over

seven years later.   Thus, Appellant’s petition is untimely, unless he has

satisfied his burden of pleading and proving that one of the enumerated

time-bar exceptions applies.   See Commonwealth v. Beasley, 741 A.2d

1258, 1261 (Pa. 1999).

     Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions.   The Honorable Richard K. Renn astutely

discussed the multiple reasons why Appellant failed to meet this burden:

            [Appellant] argues that the United States Supreme
        Court created a new constitutional right when it held that
        “[m]andatory minimum sentences increase the penalty for
        a crime . . . . [so] any fact that increases the mandatory
        minimum is an ‘element’ [of the crime] that must be
        submitted to a jury.” Alleyne, 133 S.Ct. at 2155. To
        date, our Superior Court has determined that Alleyne
        renders numerous mandatory minimum sentences
        unconstitutional because “[i]t permits the trial court, as
        opposed to the jury, to increase a defendant’s minimum
        sentence based upon a preponderance of the evidence,”
        rather than beyond a reasonable doubt as required by
        Alleyne. Commonwealth v. Newman, 99 A.2d 86, 89
        [(Pa. Super. 2014)]. Assuming that the United States
        Supreme Court’s decision in Alleyne does create a new
        constitutional right, [Appellant’s] argument fails for the
        following reasons.

                                   ***

           In order to satisfy the time-bar exception in 42
        Pa.C.S.A. § 9545(b)(1)(iii), a new constitutional right must
        have been created and either the United States Supreme
        Court or the Pennsylvania Supreme Court has to have held
        that right to be retroactive. In Newman, the Superior
        Court determined that Alleyne applied retroactively to the
        defendant in that case because his judgment of sentence
        was not yet final. Newman, 99 A.3d at 90-91. However,
        a little over a month later, that same court refused to

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       apply Alleyne retroactively to a defendant’s judgment of
       sentence that had become final.      Commonwealth v.
       Miller, 102 A.3d 988, 995-96 [(Pa. Super. 2014)]. The
       court noted, “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 has become final.” Id. at 995.

          While we agree with [Appellant] that our Supreme
       Court may find that Alleyne applies retroactively [to cases
       where a defendant’s judgement of sentence became final
       prior to the Alleyne decision], it has not yet done so.
       Consequently, we are bound by existing case law.
       [Appellant’s] judgment of sentence became final on March
       13, 2006, which was 90 days after the Pennsylvania
       Supreme Court denied his petition for allowance of appeal.
       Therefore, because neither the Pennsylvania Supreme
       Court nor the United States Supreme Court have declared
       that Alleyne applies retroactively to judgments of
       sentence that are final, [Appellant’s] argument for
       exception under § 9545(b)(1)(iii) fails.

                                  ***

          Although a challenge based on Alleyne does implicate
       the legality of a sentence, “a legality of sentence claim
       may nevertheless be lost should it be raised . . . in an
       untimely PCRA petition for which no time-bar exception
       applies.” Miller, 102 A.3d at 995-96. As stated above,
       [Appellant] has failed to prove his case fits into any of the
       enumerated exceptions contained in § 9545(b)(1).
       Therefore, even though his challenge implicates the
       legality of his sentence, this Court does not have
       jurisdiction over the claim. See id.

                                  ***

          [Appellant] argues that he was subjected to the
       mandatory minimum sentencing structure laid out in 42
       Pa.C.S.A. § 9714; however, we cannot agree that he was.
       A review of the transcript from [Appellant’s] sentencing
       shows that the [trial court] took numerous factors into
       account when structuring [Appellant’s] sentence.      The
       factors the Court considered included [Appellant’s] prior
       record dating back more than 10 years, the violent nature
       of those prior offenses, the fact that the commission of

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       most of his offenses occurred while he was on supervision,
       the nature of the current offense being that he and his co-
       defendant’s [sic] targeted an elderly couple, and
       [Appellant’s] role in the conspiracy. See N.T., 8/16/2004
       at 3-5. The Court further determined that there were
       many aggravating circumstances and no mitigating
       circumstances. Id. at 3. At no point in the sentencing
       transcript does the [trial court] or the Assistant District
       Attorney mention a mandatory sentence under § 9714.

          Even if [Appellant] was subjected to the mandatory
       minimum under § 9714(a)(1), [he] is still out of luck. The
       United States Supreme Court’s decision in Alleyne did not
       overturn its earlier decision in Almendarez-Torres v.
       United States, 523 U.S. 224 (1998). See Alleyne, 133
       S.Ct. at 2160 n.1; see also Miller, 102 A.3d at 995 n.5.
       In Almendarez-Torres, the defendant was sentenced
       pursuant to 8 U.S.C. § 1326(b)(2), which defines criminal
       penalties for aliens who have been deported and attempt
       to illegally reenter the United States. The defendant, who
       had been deported due to three prior convictions for
       aggravated felonies, argued that his prior offender status
       was an element of the crime, and therefore needed to be
       included in the indictment. Id. at 227. Because it was
       not, according to the defendant, the sentencing judge
       could only sentence him to a maximum term of 2 years, as
       opposed to a maximum of 20 years. Id.; see also 8
       U.S.C. § 1326(b)(2).

          The Court disagreed. An indictment “need not set forth
       factors relevant only to the sentencing of an offender
       found guilty of the charged crime.” Almendarez-Torres,
       523 U.S. at 228. After stating that the issue was the
       defendant’s recidivism, the Court explained that recidivism
       “is a traditional, if not the most traditional, basis for a
       sentencing court’s increasing an offender’s sentence.” Id.
       at 230, 243. The very fact that a defendant is a reoffender
       does not go to establish the commission of a new offense,
       but rather it is taken into account for sentencing purposes
       only. Id. at 243-44. Thus, the Court held that recidivism
       was not an element of the crime and did not need to be
       included in the indictment.

         When deciding Alleyne, the Supreme Court referenced
       Almendarez-Torres. The Court noted the general rule

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        from Apprendi v. New Jersey, which stated “any ‘facts
        that increase the prescribed range of penalties to which a
        criminal defendant is exposed’ are elements of the crime.”
        Alleyne, 133 S.Ct. at 2160 (quoting Apprendi v. New
        Jersey, 530 U.S. 466, 490 (2000). However, the Alleyne
        Court also noted the narrow exception laid out in
        Almendarez-Torres, which deals with prior convictions.
        The Court stated, “[b]ecause the parties do not contest
        that decision’s vitality, we do not revisit it for purposes of
        our decision today.” Id. at 2160 n.1. Thus, the prior
        conviction exception from Almendarez-Torres was
        unaffected by Alleyne.

           Turning back to the present case, and assuming that
        [Appellant] was subjected to 42 Pa.C.S.A. § 9714(a)(1),
        his argument fails because Almendarez-Torres was not
        overturned by Alleyne. Looking at the version of § 9714
        that was in effect at the time [Appellant] was sentenced, it
        is clear that the statute’s only concern is with a
        defendant’s prior convictions; thus, it fits squarely [within]
        the narrow exception articulated in Almendarez-Torres.

                                   ***

           [Appellant’s] PCRA petition is untimely and he cannot
        prove the enumerated exception in 42 Pa.C.S.A. §
        9545(b)(1)(iii) because neither the United States Supreme
        Court nor the Pennsylvania Supreme Court have held that
        Alleyne applies retroactively [to petitioners whose
        judgment of sentence became final prior to the Alleyne
        decision.] Even if [Appellant’s] PCRA petition was timely,
        his argument fails for two reasons. First, there is no
        evidence [Appellant] was actually subjected to the
        sentencing structure laid out in § 9714. Second, even if he
        was, § 9714’s mandatory minimum sentencing structure is
        based solely on a defendant’s prior convictions, which is an
        exception under Almendarez v. Torres. Therefore, we
        respectfully submit that [Appellant’s] arguments are
        without merit.

PCRA Court Opinion, 1/6/15, at 3-7 (footnote omitted).




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      Our review of the record supports the PCRA court’s conclusion that it

lacked jurisdiction to consider Appellant’s latest PCRA petition.         See

generally, Miller, 102 A.3d 988 (Pa. Super. 2014); Commonwealth v.

Ali, 2015 PA Super 45, ___ A.3d ___ (Pa. Super. 2015). Accordingly, we

affirm the PCRA court’s order denying Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2015




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