J-S26013-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

DEWAYNE LAMONT ELLERBY

                        Appellant                   No. 1884 MDA 2016


               Appeal from the PCRA Order October 31, 2016
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0003728-1996
                          CP-06-CR-0003729-1996


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

JUDGMENT ORDER BY BOWES, J.:                          FILED JULY 14, 2017

      Dewayne Ellerby appeals from the order denying his PCRA petition as

untimely. We affirm.

      We previously set forth the factual history in our memorandum

denying Appellant’s pursuit of direct appeal relief. Briefly stated, Appellant

and his male co-defendant engaged in a crime spree on the evening of

August 28, 1996, in which the two men attempted to abduct a German

tourist, kidnapped another woman, shot at the woman when she was able to

flee, and engaged in a high speed pursuit with a police officer who had

spotted their vehicle. See Commonwealth v. Ellerby, 718 A.2d 856 (Pa.

Super. 1998) (unpublished memorandum). As a result, Appellant was

charged with dozens of crimes.       Following a jury trial, Appellant was

* Former Justice specially assigned to the Superior Court.
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convicted of multiple crimes and was sentenced to an aggregate period of

fifteen to thirty years incarceration, which included some mandatory

minimum sentences.

      Appellant sought relief with this Court on direct appeal, which we

denied by unpublished memorandum filed May 22, 1998. Id. Appellant did

not seek further review with our Supreme Court. He sought PCRA relief on

four prior occasions, one of which was dismissed on appeal for failing to file

a brief.    The other three were denied for various reasons.               See

Commonwealth v. Ellerby, 817 A.2d 1176 (Pa. Super. 2002) (unpublished

memorandum); Commonwealth v. Ellerby, 855 A.2d 130 (Pa.Super.

2004) (unpublished memorandum); Commonwealth v. Ellerby, 880 A.2d

5 (Pa.Super. 2005) (unpublished memorandum).

      The instant petition seeking PCRA relief was docketed on March 16,

2016. The PCRA court issued a notice of intent to dismiss, and, on October

31, 2016, dismissed the petition as untimely. Appellant and the PCRA court

complied with Pa.R.A.P. 1925 and the matter is ready for our review.

Appellant presents two issues for our consideration.

      I.    Whether the United States Supreme Court case
            Montgomery v. Louisiana . . . has rendered a new
            executive decision that applies to all cases of substantive
            rules of constitutional law.         Thereby, making it
            “constitutionally” permissible, by due process of law, for a
            defendant to raise said claim where application applies
            under U.S.C.A. 5th, 8th, and 14th.




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      II.     Whether the ruling within Montgomery . . . gives
              retroactive effect to [Alleyne], when involving new
              watershed procedural rules and substantive rules of
              constitutional law of which applies to a defendant.

Appellant’s brief at 3.

      It is well-settled that all PCRA petitions must be filed within one year

of the date a defendant’s judgment of sentence becomes final, unless an

exception applies. 42 Pa.C.S. § 9545(b)(1). The time-bar is jurisdictional in

nature; therefore, “when a PCRA petition is untimely, neither this Court nor

the trial court has jurisdiction over the petition.”        Commonwealth v.

Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation and quotation marks

omitted). Timeliness presents a question of law, which we review de novo

and our scope of review is plenary. Commonwealth v. Hudson, 156 A.3d

1194, 1197 (Pa.Super. 2017).

      Appellant’s attempt to circumvent the time bar relied upon §

9545(b)(1)(iii), which confers jurisdiction when the Supreme Court of the

United States or Pennsylvania have recognized the retroactive application of

a   new     constitutional   right.   Appellant   relies   upon   Louisiana   v.

Montgomery, 136 S.Ct. 718 (2016), as satisfying that statute.

      That case did indeed announce a new retroactive right, but its holding

is limited to Miller v. Alabama, 567 U.S. 460 (2012), which determined

that it is unconstitutional to impose a mandatory             sentence of life

imprisonment without the possibility of parole for crimes committed while



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the defendant was a juvenile. Miller has no applicability to Appellant, as he

was not sentenced to a mandatory sentence of life imprisonment without

parole nor was he a juvenile when he committed his crimes. Instead, his

PCRA claim pertains to Alleyne v. United States, 133 S.Ct. 2151 (2013),

which held that a jury must find beyond a reasonable doubt any facts that

increase a mandatory minimum sentence.

      There is no doubt that Alleyne is not to be applied retroactively in the

PCRA setting and it fails to trigger the § 9545(b)(1)(iii) exception.

Commonwealth        v.   Washington,   142   A.3d   810,   818   (Pa.   2016).

Therefore, the PCRA court correctly determined that it lacked jurisdiction to

address Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




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