J-S04007-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

SHAWN CONLEY,

                          Appellant                 No. 1917 WDA 2014


              Appeal from the PCRA Order September 22, 2014
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0004013-1994


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 26, 2016

       Shawn Conley appeals from the September 22, 2014 order denying

him PCRA relief. We affirm.

       On November 6, 1995, Appellant was convicted by a jury of robbery,

aggravated assault, a firearms violation, and conspiracy in connection with a

crime that occurred on October 21, 1993, in which John Napper was the

victim.   Appellant and Carlos Colton were tried together while a third co-

conspirator, Sedrick Boyd received a separate trial.       Mr. Napper reported

that Appellant, Colton, and Boyd forced him into a car at gunpoint and stole

items from him.     Mr. Napper started to climb through an open window to

escape when the three assailants shot him in the stomach and legs as his




*
    Retired Senior Judge assigned to the Superior Court.
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body was hanging over the window. Mr. Napper fell to the ground, and the

cohorts ran over him with the car at least twice before speeding away.

      Garreth Davis, a constable, testified that he saw Mr. Napper

attempting to exit the car through the window and that Appellant, whom Mr.

Davis was able to identify, was pulling the victim back into the vehicle. Mr.

Davis heard the gunshots, saw Mr. Napper fall to the ground, and witnessed

the car driving over him.      Mr. Davis pursued Appellant and his fellow

cohorts. Their car came to stop due to a collision with another vehicle, and

Appellant exited it, pointed a gun at Mr. Davis, and fled.

      The case proceeded to sentencing immediately after the jury returned

its verdict. The court had the benefit of a presentence report, which

indicated that Appellant was affiliated with the Crips gang. Based partially

on this gang connection, the trial court elected to “sentence [Appellant]

outside of the guidelines” and imposed consecutive sentences on each

offense.   Appellant was imprisoned for twenty-seven and one-half to fifty-

four years. After Appellant’s appellate rights were reinstated, we affirmed

on January 26, 1998, Commonwealth v. Conley, 711 A.2d 1038

(Pa.Super. 1998) (unpublished memorandum), and no further direct review

was sought.

      Appellant filed a timely PCRA petition, and, after counsel was

appointed, counsel filed an amended petition.         The court denied relief

without a hearing, and on appeal, we remanded for the court to more

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thoroughly review Appellant’s claims. Commonwealth v. Conley, 809 A.2d

954 (Pa.Super. 2002) (unpublished memorandum). After the court prepared

another opinion, we affirmed.   Commonwealth v. Conley, 875 A.2d 384

(Pa.Super. 2005) (unpublished memorandum), appeal denied, 885 A.2d 532

(Pa. 2005).   Appellant filed a second PCRA petition, which was dismissed,

and his appeal from that ruling also was dismissed due to Appellant’s failure

to provide this Court with a docketing statement.

     In the meantime, at a different action number, 13631-1998, Appellant

pled guilty to third-degree murder on January 31, 2000, based upon his

involvement in the November 5, 1993 murder of Troy Miller.          Appellant

received a term of imprisonment of ten to twenty years imprisonment, which

was imposed consecutively to the sentence that Appellant received herein.

Appellant did not appeal that judgment of sentence.      On July 27, 2012,

Appellant filed a joint PCRA petition at both action numbers. Counsel was

appointed, but successfully moved to withdraw. On February 20, 2014, we

affirmed the dismissal of that joint PCRA petition.     Commonwealth v.

Conley, 97 A.3d 808 (Pa.Super. 2014) (unpublished memorandum).

     The PCRA petition at issue in this appeal was filed on July 15, 2014

and dismissed on September 22, 2014. Appellant raises two averments: “I.

Whether the defendant’s sentence is unconstitutional?      II.   Whether the

defendant deserves new proceedings to present his duress defense? (This

argument has been waived by the defendant).” Appellant concedes that the

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second issue is waived; his first contention pertains to Alleyne v. United

States, 133 S.Ct. 2151 (2013). 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.

     Initially, we note that our “standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before

we proceed to the merits of Appellant’s contention that his sentence was

rendered illegal under Alleyne, we must determine whether Appellant’s July

15, 2014 PCRA petition was timely filed as that issue implicates our

jurisdiction. Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). If

a PCRA petition is untimely, “neither this Court nor the trial court has

jurisdiction over the petition.” Id. at 992 (quoting Commonwealth v.

Seskey, 86 A.3d 237, 241 (Pa.Super. 2014)); see Commonwealth v.

Chester, 895 A.2d 520 (Pa. 2006).

     Any PCRA petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final” unless an

exception to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1).

Accordingly, we must determine when Appellant’s judgment of sentence

became final. “A judgment becomes final at the conclusion of direct review,

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including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not

file a petition for allowance of appeal, his sentence became final on February

25, 1998, thirty days after our January 26, 1998 affirmance on direct

appeal.   Appellant had until February 25, 1999, to file a timely PCRA

petition, and the present July 15, 2014 petition is patently untimely. There

are three exceptions to the one-year time bar of § 9545:

       (i) the failure to raise the claim previously was the result of
      interference by 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. § 9545(b)(1)(i-iii). “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Herein, Appellant invokes the after recognized constitutional right

exception. He acknowledges that in Commonwealth v. Miller, supra, we

held specifically that, since Alleyne has not been held to be retroactive by



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either our Supreme Court or the United States Supreme Court, it does not

fall within the parameters of the recently-recognized constitutional right

exception to § 9545(b)(1). Miller, supra. Appellant asks that we hold his

case in abeyance until Miller is re-visited by the Pennsylvania Supreme

Court or the United States Supreme Court.          Miller is controlling case

authority, and this panel is bound to follow it.    Allowance of appeal was

denied in the Miller case, Commonwealth v. Miller, 947 A.2d 736 (Pa.

2008), and there is no basis upon which to delay resolution of this matter.1

As the present PCRA petition was untimely filed, relief was properly denied.

       Order affirmed.




____________________________________________


1
   We also note that there is a problem with Appellant’s reliance upon
Alleyne.     Appellant was not sentenced under a mandatory minimum
sentencing provision. Appellant suggests that the fact that he was a
member of the Crips gang, impacted on the trial court’s decision to sentence
him to the statutory maximum; had to be submitted to a jury and proven
beyond a reasonable doubt under Alleyne. Appellant’s position in this
respect is misguided. We have ruled, “The parameters of Alleyne are
limited to the imposition of mandatory minimum sentences, i.e., where a
legislature has prescribed a mandatory baseline sentence that a trial court
must apply if certain conditions are met.” Commonwealth v. Ali, 112 A.3d
1210, 1226 (Pa.Super. 2015), appeal granted on other grounds, 2015 WL
7763727 (Pa. Dec. 2, 2015). Appellant was not sentenced based upon
application of a mandatory minimum sentencing provision and cannot invoke
Alleyne in the first instance.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2016




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