J-S38017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      v.

NICHOLAS ELLERBEE,

                           Appellant                      No. 3562 EDA 2014


            Appeal from the PCRA Order of November 20, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0504221-1995
                       and CP-51-CR-0907861-1996


BEFORE: FORD ELLIOTT, P.J.E., OLSON and JENKINS, JJ.

MEMORANDUM BY OLSON, J.:                                   FILED JUNE 29, 2016

      Appellant, Nicholas Ellerbee, appeals pro se from the order entered on

November 20, 2014 that dismissed as untimely his third petition filed

pursuant   to   the    Post   Conviction   Relief   Act   (PCRA),   42   Pa.C.S.A.

§§ 9541-9546. We affirm.

      The PCRA court summarized the factual and procedural history in this

case as follows:

      On February 27, 1997, [following a jury] trial, Appellant was
      convicted of aggravated assault and related charges. On March
      6, 1997, following a separate jury trial, Appellant was convicted
      of attempted murder and numerous lesser charges. On April 28,
      1997, Appellant was sentenced to an aggregate term of
      thirty-eight and one-half to seventy-seven years’ incarceration at
      a state institution. On March 28, 1998, following a direct appeal,
      this Court affirmed the judgments of sentence. On October 29,
      1999, Appellant filed an untimely pro se [PCRA p]etition. On
      April 23, 2001, the PCRA court dismissed the petition as
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      untimely. On January 9, 2002, this Court affirmed the [PCRA]
      court’s dismissal of Appellant’s PCRA petition.

      On December 22, 2004, Appellant filed a second pro se PCRA
      petition.  On January 6, 2006, the [PCRA] court dismissed
      Appellant’s PCRA petition without a hearing. On September 6,
      2006, the denial of relief was affirmed following a[n] appeal to
      this Court[. Commonwealth v. Ellerbee, 911 A.2d 179 (Pa.
      Super 2006) (unpublished memorandum).]

      On August 22, 2012, Appellant filed his third PCRA petition. On
      November 20, 2014, the [PCRA] court dismissed Appellant’s
      petition without a hearing. On December 1, 2014, the instant
      notices of appeal were filed to the Superior Court of
      Pennsylvania. A 1925(b) statement of matters complained of on
      appeal was filed on December 31, 2014. [The PCRA court issued
      its Rule 1925(a) opinion on February 23, 2015.]

PCRA Court Opinion, 2/23/15, at 1-2.

      Appellant presents the following questions for appellate review:

      Did the [PCRA] court [a]buse [i]t’s [d]iscretion, and commit [a]
      [r]eversible [e]rror where it failed to recognize new
      [c]onstitutional rights pursuant to the new rules announced in
      Miller v. Alabama, 132 S. Ct. 2455 (U.S. 2012) and Alleyne V.
      United States 133 S.Ct. 2151 (U.S. 2013) where an appellant
      [sic] decision over rules prior law, and announces a new
      principle, and have not specifically declared the ruling to be
      prospective only?

      Should [42 Pa.C.S.A. §] 9712 be deemed [v]oid [ab initio]
      following [the] ruling in [Alleyne V. United States 133 S.Ct.
      2151 (U.S. 2013)] and Commonwealth v. Newman, 99 A.3d
      86 (Pa. Super. 2014) in which [section] 9712 was ruled to be
      unconstitutional?

Appellant’s Brief at 2.

      Our scope and standard of review is well-settled:

        In PCRA appeals, our scope of review is limited to the
        findings of the PCRA court and the evidence on the record of
        the PCRA court's hearing, viewed in the light most favorable

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        to the prevailing party. Because most PCRA appeals involve
        questions of fact and law, we employ a mixed standard of
        review. We defer to the PCRA court's factual findings and
        credibility determinations supported by the record. In
        contrast, we review the PCRA court's legal conclusions de
        novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (internal citations and quotations omitted).

      In order to address Appellant’s issues, we must first determine

whether the PCRA court correctly determined that Appellant’s third PCRA

petition was untimely filed.       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).

      The   timeliness    of   a    post-conviction   petition   is   jurisdictional.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). 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 is final unless the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and




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(iii), is met.1 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

(Pa. 2000); 42 Pa.C.S.A. § 9545.               A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims

could have been presented.” Gamboa-Taylor, 753 A.2d at 783; see also

42 Pa.C.S.A. § 9545(b)(2).

        In this case, this Court affirmed Appellant’s judgment of sentence on

March 28, 1998 and Appellant did not seek further review.               Accordingly,

Appellant’s judgment of sentence became final on April 27, 1998, when the

period for seeking review in the Pennsylvania Supreme Court expired. See

42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a) (request for review by

Pennsylvania Supreme Court must be filed within 30 days of order entered

____________________________________________


1
    The exceptions to the timeliness requirement are:

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

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).




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by Superior Court).       As Appellant filed the instant petition on August 24,

2012, it is patently untimely unless he satisfied his burden of pleading and

proving    that    one    of    the    enumerated   exceptions   applies.   See

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

       Appellant’s first issue invokes the newly recognized constitutional right

exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii). Appellant argues that

his aggregate sentence of 38½ to 77 years’ imprisonment – imposed for two

separate homicide offenses committed when Appellant was under 18 years

of age – is illegal under the United States Supreme Court’s decision in Miller

v. Alabama. This claim lacks merit.

       In Miller v. Alabama, the United States Supreme Court barred the

imposition of mandatory life sentences without the possibility of parole

upon juveniles convicted of homicide offenses.          Appellant, however, was

never convicted of homicide, nor was he sentenced to life in prison. Thus,

Miller v. Alabama is inapplicable to this case.2

       Appellant’s fallback position that he received a “de facto” life sentence

is also unavailing. Appellant’s lengthy sentence allows for the possibility of

parole when Appellant enters his mid-fifties, thereby providing a meaningful

____________________________________________


2
  Before this Court, Appellant has not raised Graham v. Florida, 560 U.S.
48 (2010) as a basis for finding jurisdiction in this case. Although Appellant
cited Graham before the PCRA court, he presented this claim well outside
the 60-day requirement set forth at 42 Pa.C.S.A. § 9545(b)(2). In any
event, as we have explained, Appellant was not sentenced to life in prison.



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opportunity for release prior to death. We have previously rejected de facto

life sentence claims under far more compelling circumstances.               See

Commonwealth v. Dodge, 77 A.3d 1263, 1276 (Pa. Super. 2013)

(confinement extending into defendant’s eighties did not constitute life

sentence). Appellant’s first claim merits no relief.3

         Appellant next cites Alleyne, supra as a basis for finding jurisdiction

under § 9545(b)(iii).       Here, Appellant argues that because 42 Pa.C.S.A.

§ 9712 was declared unconstitutional by Alleyne and its Pennsylvania

progeny, there was no statutory authority for his sentence. This claim also

fails.

         In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this

Court held that the PCRA court lacked jurisdiction to consider an Alleyne

argument presented in an untimely PCRA petition. We stated:

           Subsection (iii) of Section 9545[(b)(1)] has two
           requirements. First, it provides 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 provided in this section.
           Second, it provides that the right “has been held” by “that
           court” to apply retroactively. Thus, a petitioner must
           prove that there is a “new” constitutional right and that the
           right “has been held” by that court to apply retroactively.
           The language “has been held” is in the past tense. These
           words mean that the action has already occurred, i.e.,
           “that court” has already held the new constitutional right
____________________________________________


3
   Appellant’s passing claim that the PCRA court’s familiarity with the
now-retired sentencing judge constituted grounds for recusal is unreviewable
since Appellant presented that claim for the first time on appeal.



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          to be retroactive to cases on collateral review.     By
          employing the past tense in writing this provision, the
          legislature clearly intended that the right was already
          recognized at the time the petition was filed.

                                          ***

          Even assuming that Alleyne did announce a new
          constitutional right, 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 had become final.

          This is fatal to [a]ppellant’s argument regarding the PCRA
          time-bar. This Court has recognized that a new rule of
          constitutional law is applied retroactively to cases on
          collateral review only if the United States Supreme Court
          or our Supreme Court specifically holds it to be
          retroactively applicable to those cases.           Therefore,
          [a]ppellant has failed to satisfy the new constitutional right
          exception to the time-bar.

Miller, 102 A.3d at 994-995. (citations omitted).

       Like the petitioner in Miller, Appellant raises his Alleyne claim long

after his judgment of sentence became final. Moreover, as stated above in

Miller, neither our Supreme Court nor the United States Supreme Court has

held that the constitutional right recognized in Alleyne applies retroactively.

See also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super.

2015) (holding that, “Alleyne is not entitled to retroactive effect in [the]

PCRA setting.”) Hence, Miller does not support jurisdiction over Appellant’s

untimely petition.4

____________________________________________


4
 Appellant’s reliance upon our decision in Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014) (en banc) is inapposite because that case
(Footnote Continued Next Page)


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      We are also unpersuaded by Appellant’s contention that § 9712 must

be deemed void ab initio since it has been held unconstitutional.        Here,

Appellant argues that, because this Court invalidated § 9712, it could never

have served as legislative authorization to impose a mandatory minimum

sentence.    The authorities cited by Appellant, however, stand only for the

proposition that legislative actions taken in violation of constitutional

provisions are, as a result, void ab initio.      See e.g., Norton v. Shelby

County, 6 S.Ct. 1121 (U.S. 1886). In this case, there is no showing that

the General Assembly passed § 9712 in violation of any provision of the

Constitutions of the United States or Pennsylvania.      Instead, the statutory

provision was lawfully passed and thereafter declared unconstitutional

following later interpretation of the United States Constitution.       Hence,

Appellant’s theory that § 9712 is void ab initio is contrary to law.5

      The PCRA court correctly concluded that Appellant’s petition was

untimely. Therefore, we affirm.

                       _______________________
(Footnote Continued)

involved a direct appeal rather than a post-conviction challenge to a final
judgment of sentence.
5
  For other reasons, we cannot adopt Appellant’s position that a lawfully
passed statute must be deemed void ab initio whenever it is subsequently
invalidated by later constitutional interpretation.      If we accept this
argument, which we do not, we would effectively overlook the clear
statutory requirement that a new constitutional rule invoked for purposes of
§ 9545(b)(1)(iii) must be held to apply retroactively by the Supreme Court
of Pennsylvania or the United States. We are not prepared to disregard such
an unambiguous legislative command.



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      Order affirmed.

      Judge Jenkins joins this memorandum. President Judge Emeritus Ford

Elliott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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