J-S72013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUDAH O. O. JAMISON,

                            Appellant                 No. 3427 EDA 2016


             Appeal from the PCRA Order Entered October 11, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0305821-2006


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 20, 2018

        Appellant, Judah O. O. Jamison, appeals from the post-conviction

court’s October 11, 2016 order denying, as untimely, his second petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We

affirm.

        We need not reproduce the facts and procedural history of this case,

which are summarized by the PCRA court in its Pa.R.A.P. 1925(a) opinion.

See PCRA Court Opinion (PCO), 3/21/17, at 1-3. We only note that, in this

timely appeal, Appellant argues that a mandatory minimum sentence applied

in his case is illegal under Alleyne v. United States, 133 S.Ct. 2151, 2163

(2013) (holding that “facts that increase mandatory minimum sentences

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S72013-17



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

its opinion, the PCRA court cogently discusses why Appellant cannot rely on

Alleyne, or its progeny, to overcome the one-year time-bar of the PCRA.

See PCO at 3-9. Therefore, we adopt the trial court’s opinion as our own,

and affirm the order denying Appellant’s PCRA petition for the reasons set

forth therein.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




                                   -2-
                                                                                         Circulated 02/05/2018 02:05 PM




                COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                           CRIMINAL TRIAL DIVISION                                                 Received
                                                                                                  MAR 21 2017
COMMONWEALTH OF PENNSYLV Al\11A
                                                                                                Office of Judicial Records
                                                                                                    Appeals/Post Trial
v.

JUDAH JAMISON                                                                  CP-Sl-CR-0305821-2006
                                            I\ I\ 1111\I I\I 11111\ I\ 1111    3427 EDA 2016
                                              .    7921_784791           ...

                                                   OPINION


LEON W. TUCKER, S.J.                                                           DATE: March 21, 2017


          This matter comes before the Superior Court following the dismissal of a Post-Conviction
                                        I
Relief Act ("PCRA")1 petition filed by Judah Jamison (hereafter "Petitioner").

     I.      Facts and Procedural History

     On March 5, 2007, the Petitioner entered an open guilty plea on the charges of involuntary

deviate sexual intercourse by forcible compulsion/ unlawful contact with minor;' statutory sexual

assault," and corruption of minors before this court.5 On June 13, 2007, this court sentenced

Petitioner to an aggregate sentence of six (6) to twelve (12) years of incarceration followed by ten

(10) yea.rs of probation. The Petitioner was subject to a mandatory minimum sentence for the

conviction of involuntary deviate sexual intercourse with a victim that was less than sixteen (16)

years of age, pursuant to 42 Pa. Cons. Stat. § 9718 (held unconstitutional by Commonwealth v.

Wolfe, 140 A.3d 651 (Pa. 2016)). Petitioner filed a post-sentence motion for reconsideration of



1 42 Pa. Cons. Stat. §§ 9541-9546.
2
  18 Pa. Cons. Stat.§ 3123(a)(l).
3 18 Pa. Cons. Stat. § 63 l 8(a)(l ).
4 18 Pa. Cons. Stat. § 3122. l.
5 18 Pa. Cons. Stat. § 6301.
sentence, which was denied as an operation of law on October 22, 2007. The Petitioner did not

appeal his judgment of sentence nor the denial of his post-sentence motion. On February 22, 2012,

Petitioner filed his first PCRA petition, which raised a number of ineffective assistance claims

regarding his trial counsel. The court dismissed the petition as untimely on December 17, 2012.

The Superior Court affirmed the dismissal on November 20, 2013.6 On June S, 2014, the

Pennsylvania Supreme Court denied a petition for allowance of appeal."

      The Petitioner filed the instant PCRA petition, his second, on June 30, 2014. Petitioner

subsequently filed two amended PCRA petitions on February 9, 2015, and August 3, 2015,

reiterating the same claim of an unconstitutional sentence raised in his June, 2014 petition. The

court issued a notice of intent to dismiss the petition C'907 notice"), pursuant to Pa.R.Crim.P. 907,

on July 7, 2016. On July 25, 2016, prior to the dismissal of the PCRA petition, Barnaby Wittels,

Esquire entered his appearance. Attorney Wittels filed a motion for extension of time to file

objections to the 907 notice. The court granted the extension and Attorney Wittels filed a response

to the 907 notice on August 23, 2016. On October 11, 2016, the court formally dismissed the

PCRA petition as untimely. The Petitioner filed a notice of appeal on October 26, 2016. The

Petitioner filed a statement of matters complained on appeal (" I 925(b) statement") on November

14, 2016, in response to the court's November 4, 2016 order requesting the statement in accordance

with Pa.RA. P. l 925(b). Due to its lengthiness, the court will not reproduce the 1925(b) statement

verbatim, as is custom. The Petitioner's 1925(b) statement centered on one alleged error - a claim

that the PCRA court erred in dismissing the petition because Commonwealth v. Ciccone, No. 3114

EDA 2014, 2016 \VL 7217269 (Pa. Super. 2016) entitled the Petitioner to relief.



6   Commonwealth v. Jamison, No. 13 8 EDA 2013 (Pa. Super. Nov. 20, 20 l 3) (unpublished
memorandum).
7   Commonwealth v. Jamison, No. 635 EAL 2013 (Pa. June 5, 2014) (per curiam).
                                                 2
    II.     Legal Analysis

    Under 42 Pa. Cons. Stat. §§ 9541 M9546> commonly known as the Post Conviction Relief Act,

a petitioner is required to plead and prove by a preponderance of the evidence that he was

convicted or sentenced as a result of one of the grounds enumerated in subsection (a)(2) to obtain

post-conviction relief. 42 Pa. Cons. Stat. § 9543(a)(2). He must also prove the claimed errors

were not previously litigated or waived and "the failure to litigate the issue prior to or during

trial, ... or on direct appeal could not have been the result of any rational, strategic or tactical

decision by counsel." Id. § 9543(a)(4). An issue is considered previously litigated if "the highest

appellate court in which the petitioner could have had review as a matter of right has ruled on the

merits of the issue." Id. § 9544(a)(2). An issue is considered waived "if the petitioner could have

raised it but failed to do so before trial> at trial, during unitary review, on appeal or in a prior

state postconviction proceeding." Id. § 9544(b).

    a. The PCRA court was without jurisdiction to make a determination on the merits of
       the PCRA petition as it was untimely filed and did not qualify for any of the three
       statutory exceptions for untimeliness.

    Petitioner's sole claim is that the PCRA court erred in not granting relief to Petitioner

because the entirety of Pennsylvania's mandatory sentencing scheme was rendered

unconstitutional and illegal by the Commonwealth v. Ciccone> No. 3114 EDA 2014, 2016 WL

3902841 (Pa. Super. July 12, 2016) and Alleyne v. United States, 133 S.Ct. 2151 (2013)

decisions. In Alleyne, the Supreme Court of the United States held any fact that increases a

mandatory minimum sentence is an element of the crime and must be proven to a jury beyond a

reasonable doubt. Alleyne   v. United States> 133 S. Ct. 2151 (2013). As a result of the Alleyne

decision, Pennsylvania courts had to rule upon the impact of Alleyne on various mandatory

minimum sentencing statutes and the proper channel for seeking relief under Alleyne. In one



                                                   3
particular case, Commonwealth v. Ciccone, the Superior Court had to determine whether a

petitioner was entitled to seek relief under Alleyne via a timely PCRA petition. No. 3114 EDA

2014, 2016 WL 3902841 (Pa. Super. July 12, 2016). In contrast to the petitioner in Ciccone,

Petitioner has failed to establish the PCRA court has jurisdiction to review the merits of his

untimely petition.

   A petitioner must file a PCRA petition, including second and subsequent petitions, within

one year of the date when the judgment becomes final. 42 Pa. Cons. "Stat. § 9545(b). A judgment

is considered final at the close of direct review or when the time to seek review expires. Id. §

9545(b)(3). There are three exceptions to the one-year time limitation:

         (i)               to
                 the failure raise the claim previously was the result of interferenceby
                 govenunent officials with the presentation of the claim in violation of the
                 Constitution or laws of this Commonwealth or the Constitution or Jaws 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 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.


Id. § 9545(b)(1 ). Pennsylvania courts have no jurisdiction to address the substantive merits of

PCRA petitions that are untimely without exception. See e.g. Commonwealth. v. Robinson, 837

A.2d 1157, 1163 (Pa. 2003); Commonwealth v. Hall, 771 A.2d 1232, 1234 (Pa. 2001)

("Pennsylvania courts lack jurisdiction to entertain untimely PCRA petitions."). Even if the

petitioner is serving an illegal sentence, which is reviewable under the PCRA, his claim is still

subject to the time limitations under the PCRA. Commonwealth v. Fahy, 73 7 A.2d 214, 223 (Pa.

1999).


                                                  4
    In the instant matter, the Petitioner's judgment of sentence became final on or about

November 21, 2007, thirty (30) days after the order denying Petitioner's post-sentence motion

for reconsideration by operation oflaw was entered. See 42 Pa. Cons. Stat. § 954S(b)(3);

Pa.R.Crim.P. 720(A)(2)(b). The instant matter was not filed until June 30, 2014 - almost seven

(7) years after Petitioner's judgment of sentence became final. As his claim was filed well

beyond the one-year timeline, Petitioner was required to properly plead and prove one of the

timeliness exceptions for the court to consider the substantive merits of his petition. As discussed

below, Petitioner failed to establish any exception for his untimely petition. Although claims of

an illegal sentence are generally reviewable under the PCRA, Petitioner's claim is still subject to

the time limitations of the PCRA. Without any exception for his untimeliness, the PCRA court

was without jurisdiction to review the merits of his claim and accordingly dismissed his petition.

    b. Petitioner's reliance on Commonwealth v. Ciccone, No. 3114 EDA 2014, 2016 WL
       3902841 (Pa. Super. ·July 12, 2016) is misplaced and fails to establish an exception for
       the untimeliness of his petition.

   Petitioner attempts to establish an exception for his untimely petition under the after-

recognized constitutional right exception. If a petitioner pleads and proves "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," the PCRA court may consider the merits of the otherwise untimely petition.

42 Pa. Cons. Stat. § 9545(b)(l)(iii) (emphasis added). Petitioner makes a convoluted attempt to

circumvent the PCRA's mandate that the after-recognized constitutional right must be held to

apply retroactively by relying on the Superior Court's decision in Commonwealth v. Ciccone, No.

3114 EDA 2014, 2016 WL 3902841 (Pa. Super. July 12, 2016). According to Petitioner, "the

Ciccone Court ruled that the change wrought by Alleyne, Newman and the subsequent cases



                                                 5
 rendered any mandatory sentence illegal and unconstitutional and thus subject to review regardless

 of whether one conducted a retroactivity analysis under Teague v. Lane ... or not." Pet. 1925(b)

 Statement at 2 (unpaginated). In essence> the Petitioner argued the court did not need to consider

 the retroactivity of the Alleyne holding because the Ciccone court rendered all mandatory

 minimum sentences illegal and thereby, always subject to review regardless of the timeliness of

 the PCRA petition. However, Pennsylvania courts have squarely addressed the retroactivity of

Alleyne and unequivocally held that Alleyne does not apply retroactively to petitioners seeking

 relief via untimely PCRA petitions. See Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).

The Petitioner is not entitled to relief because ·he untimely filed his PCRA petition and failed to

establish an exception for his untimeliness.

    First, the Superior Court's holding in Commonwealth v. Ciccone, No. 3114 EDA 2014, 2016

 WL 3902841 (Pa. Super. July 12, 2016) does not establish an exception to timeliness that would

allow the PCRA court to review the merits of the petition. The after-recognized constitutional right

exception requires the constitutional right to be recognized by either the Supreme Court of the

United States· or the Supreme Court of Pennsylvania. 42 Pa. Cons. Stat. § 9545(b)(l)(iii).

Petitioner's claim that the Ciccone holding renders the entirety of Pennsylvania's mandatory

· sentencing regime unconstitutional is inaccurate> but moreover it is of no matter as Ciccone was

decided by the Pennsylvania Superior Court - not the Supreme Court of the United States or the

Pennsylvania Supreme Court as required for the after-recognized constitutional right. See id. To

clarify, the Ciccone holding centered on the propriety of a petitioner challenging an illegal sentence

via a timely PCRA petition; "[a]ccordingly, we hold that when an unconstitutional mandatory

minimum sentencing statute results in an illegal sentence, that illegal sentence can be corrected via

a timely PCRA petition, irrespective of whether retroactive application of the underlying



                                                  6
constitutional ruling is required under the [Teague v. Lane, 109 S.Ct. 1060 (1989)] framework."

Ciccone, 2016 WL 3902841, at *11 (emphasis in original). The Petitioner has erroneously relied

upon the Superior Court's holding in Ciccone to establish an after-recognized constitutional right

that would excuse his untimely petition. See Commonwealth v. Copenhefer, 94 l A.2d 646, 649-

650 (Pa. 2007) (highlighting subsection 9545(b)(1 )(iii)'s requirement that the constitutional right

asserted was recognized by the Supreme Court of the United States or the Supreme Court of

Pennsylvania). As Ciccone was decided by the Pennsylvania Superior Court, it does not meet the

mandates of subsection 9545(b )(1 )(iii) nor excuse Petitioner's untimeliness.

      Second, the Pennsylvania Supreme Court was unambiguous in its holding regarding

retroactivity of Alleyne. In Commonwealth v. Washington, the court held Alleyne did not apply

retroactively to petitioners seeking to collaterally attack mandatory minimum sentences. 142

A.3d 810 (Pa. 2016). In Washington, the court considered the retroactivity of the Alleyne

decision in its review of the dismissal of a PCRA petition filed by an appellant who was subject

to a mandatory minimum sentence. The court concluded "that Alleyne does not apply

retroactively to cases pending on collateral review." Id. at 820. Although the Petitioner argues

that Ciccone provides relief for unconstitutional mandatory minimum sentences regardless of a

Teague analysis8 on retroactivity, that argument directly contradicts the Supreme Court of

Pennsylvania - the highest court in the Commonwealth of Pennsylvania - and its application of

Teague to determine retroactivity of Alleyne. As the Pennsylvania Supreme Court has established



8   In Teague v. Lane, the Supreme Court of the United States set forth a framework to
determine the applicability and retroactivity of new rules, 109 S.Ct. 1060 (1989). When a
new rule is established, the old rule will apply to cases on direct or collateral review. Id.
at 1070-75. The new rule will only ap1,ty to cases still on direct review and will apply
retroactively if (1) the rule is substantive, or (2) the rule is a "watershed rule[J of criminal
procedure." Id at 1075-76.

                                                   7
 that Alleyne is not to be applied retroactively, Petitioner has failed to establish an exception for

 his untimeliness under subsection 9545(b)(l)(iii) of the PCRA. See 42 Pa. Cons. Stat. §

 9545(b)(1 )(iii).

     Lastly, Petitioner's argument that he is still entitled to relief under Ciccone regardless of the

 Washington decision neglects to address the important and dispositive differences in the facts of

 the Ciccone case in contrast to Petitioner's case. In Ciccone, the petitioner, Sean Ciccone, pled

 guilty to felony drug charges and related conspiracy and possession charges. Ciccone, 2016 WL

 3902841, at * 1. Ciccone was sentenced to a mandatory minimum sentence under 18 Pa. Cons.

Stat.§ 7508(a)(l)(ii), the applicable statute for possession of a certain amount of marijuana

plants. Id Cicconc's judgment of sentence became final on October 10, 2011 and he timely filed

his PCRA petition on April 9, 2012- well within the one year deadline mandated under the

PCRA. Id On appeal from the denial of his PCRA petition, the Superior Court addressed one

specific question: "whether the PCRA petitioner is entitled to relief when he raises, in a timely

PCRA petition, a claim that his sentence is illegal pursuant to Alleyne v. United States ... , and

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)T' Id. at *2 (emphasis

added). Although the Ciccone decision discusses the Alleyne decision and its progeny, it does not

recognize a constitutional right in the same manner as Alleyne. More importantly, the Ciccone

court is explicit that its holding relies upon the timeliness of Ciccone's PCRA petition and

addresses the correction of illegal sentences when "jurisdiction is not in doubt." Id. at * 8.

   In the instant matter, the Petitioner has failed to establish jurisdiction for his untimely

petition. Petitioner cannot seek to have the holding of a case based on a timely PCRA petition

apply to his untimely matter. The Petitioner filed his petition well beyond the one-year deadline

mandated by the PCRA. See 42 Pa. Cons. Stat. § 9545(b). It was necessary for him to establish



                                                  8
an exception to his untimeliness for jurisdiction to remain with the PCRA court to review the

substantive merits of his petition. See e.g. Commonwealth v. Hall) 771 A.2d 1232 (Pa. 200 I). As

discussed above, Petitioner failed to prove the after-recognized constitutional right, which would

excuse his untimeliness. He cannot now attempt to evade the mandates of the PCRA by relying

upon a case, which was predicated on a timely PCRA petition. Petitioner is not entitled to relief

on his untimely PCRA petition and cannot rely upon Ciccone to excuse his untimeliness.


   III.    Conclusion

   Petitioner failed to establish an exception for his untimely petition. Regardless of his claim of

an illegal sentence based on Alleyne v. United States) 133 S.Ct. 2151 (2013), Petitioner is still

subject to the time limitations of the PCRA. Without any exception for his untimeliness, the

PCRA court was without jurisdiction to review the substantive merits of his petition and

accordingly dismissed the Petitioner's PCRA petition. This court's ruling should stand.




                                                                             CKER,S.J.




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              COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                         CRfMINAL TRIAL DIVISION

COMMONWEAL TH V. JUDAH JAlVIISON                                  CP-51-CR-0305821-2006

OPINION

                                    PROOF OF SERVICE

        I hereby certify that I am this day serving the foregoing Court Order upon the person(s)
and in the manner indicated below, which service satisfies the requirements of PA.R.CRIM.P. 114:

Counsel for Petitioner:      Barnaby Wittels, Esquire
                             LaCheen & Wittels, LLP
                             1429 Walnut Street
                             Suite 1301
                             Philadelphia, PA 19102

Type of Service:             ( ) Personal ( X ) First Class Mail ( ) Other


District Attorney:           Hugh Burns Jr., Esquire
                             Appeals Unit, District Attorney's Office
                             Widener Building
                             3 South Penn Square
                             Philadelphia, PA 19107

Type of Service:             ( ) Personal   ( X ) First Class Mail ( ) Other




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