J-S51025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVON JERMAINE COLLINS

                            Appellant                No. 3267 EDA 2015


               Appeal from the PCRA Order September 30, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001205-2000


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 22, 2016

        Davon Jermaine Collins appeals from the order entered in the Court of

Common Pleas of Monroe County, dismissing his petition filed pursuant to

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Upon

careful review, we affirm.1



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  This Court’s standard of review regarding an order dismissing a PCRA
petition is whether the determination of the PCRA court is supported by
evidence of record and is free of legal error. Commonwealth v. Burkett, 5
A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). In evaluating a
PCRA court’s decision, our 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. Id.
J-S51025-16


      On November 29, 2001, Collins was convicted in a non-jury trial of

first-degree murder and other offenses.            On January 24, 2002, the court

sentenced Collins to a term of life imprisonment for first-degree murder, ten

to twenty years’ imprisonment for kidnapping, and one to two years’

imprisonment for abuse of a corpse, the latter two sentences to run

consecutively to each other, but concurrently with Collins’ life sentence.

      On   appeal,    this   Court      affirmed    his    judgment   of   sentence.

Commonwealth v. Collins, 817 A.2d 1174 (Pa. Super. 2002) (unpublished

memorandum). The Pennsylvania Supreme Court denied Collins’ petition for

allowance of appeal on July 10, 2003.          Commonwealth v. Collins, 827

A.2d 429 (Pa. 2003). Collins did not file a petition for writ of certiorari to the

United States Supreme Court. Therefore, his judgment of sentence became

final on or about October 8, 2003, after the ninety-day time period for filing

such a petition expired. See U.S.Sup.Ct.R. 13. Collins had one year from

that date, or until October 8, 2004, to file a timely PCRA petition. See 42

Pa.C.S.A. § 9545(b)(1). The instant petition was filed on August 6, 2015,

nearly   twelve   years   after   his   judgment      of   sentence   became   final.

Accordingly, the PCRA court had no jurisdiction to entertain Collins’ petition

unless he pleaded and offered to prove one of the three statutory exceptions

to the time bar. See 42 Pa.C.S.A. § 9545(b).




                                         -2-
J-S51025-16


       Here,    Collins     invokes     the    newly-recognized-constitutional-right

exception under section 9545(b)(1)(iii),2 claiming that the decision of the

Pennsylvania Supreme Court in Commonwealth v. Hopkins, 117 A.3d 247

(Pa. 2014), in which it applied the U.S. Supreme Court’s decision in Alleyne

v. U.S., 133 S.Ct. 2151 (2013), renders his life sentence illegal.               In

Alleyne, the Supreme Court held that any fact, other than a prior

conviction, that results in the application of a mandatory minimum sentence

must be submitted to the jury and found beyond a reasonable doubt.               In

Hopkins, the Pennsylvania high court applied Alleyne to section 6317 of

the Crimes Code, which imposed mandatory minimum sentences for drug

crimes occurring in drug-free school zones, and concluded that the statute

was constitutionally infirm. Collins is entitled to no relief.

       Here, Collins was convicted of first-degree murder. The sentence for

that crime is prescribed by 18 Pa.C.S.A. § 1102(a), which provides as

follows:

       (1) Except as provided under section 1102.1 (relating to
       sentence of persons under the age of 18 for murder, murder of
____________________________________________


2
  Section 9545(b)(1)(iii) excepts an untimely filed petition from the one-year
jurisdictional time bar where a petitioner pleads and proves that:

       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.A. § 9545(b)(1)(iii).



                                           -3-
J-S51025-16


      an unborn child and murder of a law enforcement officer), a
      person who has been convicted of a murder of the first degree or
      of murder of a law enforcement officer of the first degree shall
      be sentenced to death or to a term of life imprisonment in
      accordance with 42 Pa.C.S. § 9711 (relating to sentencing
      procedure for murder of the first degree).

18 Pa.C.S.A. § 1102(a)(1) (emphasis added).

      Notably, section 1102 does not impose a mandatory minimum

sentence   triggered    by   a   “sentencing   factor”   of   the     type   deemed

unconstitutional in Alleyne and Hopkins.         Rather, where a defendant is

convicted of first-degree murder, no finding other than the verdict itself,

which is the product of a finding beyond a reasonable doubt, is necessary to

impose the sentence Collins received.        Accordingly, Alleyne and Hopkins

are inapplicable to Collins’ claim and he is entitled to no relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2016




                                       -4-
