J-S32005-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                   v.

DONTAY RAYSHAW BREWER,

                         Appellant                 No. 3084 EDA 2015


                Appeal from the PCRA Order October 2, 2015
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0009340-2009


BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 21, 2016

     Dontay Rayshaw Brewer appeals from the October 2, 2015 order

dismissing his second PCRA petition as untimely filed. We affirm.

     In January 2011, a jury convicted Appellant of corrupt organizations,

conspiracy to commit corrupt organizations, six counts of delivery of a

controlled substance, four counts of possession of a controlled substance,

conspiracy to violate the Controlled Substance, Drug, Device, and Cosmetic

Act, five counts of criminal use of a communications facility, and possession

of drug paraphernalia.     Appellant was the head of a cocaine trafficking

operation in Norristown.    The evidence against Appellant and his cohorts

included wiretaps, videotapes, and surveillance. Appellant was arrested in

possession of 12.38 grams of cocaine, $2,500 in cash, and two cell phones.


* Retired Senior Judge assigned to the Superior Court.
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Appellant was sentenced to twenty-one to sixty years imprisonment.                  On

May    24,    2012,     we     affirmed        Appellant’s   judgment   of    sentence,

Commonwealth v. Brewer, 50 A.3d 250 (Pa.Super. 2012) (unpublished

memorandum), and, on January 10, 2013, our Supreme Court denied

review. Commonwealth v. Brewer, 62 A.3d 377 (Pa. 2013).

       Appellant filed a timely PCRA petition; counsel was appointed and filed

an amended petition. Relief was denied. Appellant appealed, claiming that

his trial attorney was ineffective for failing to file a suppression motion and

that his sentence, which involved application of five mandatory minimum

sentences under 18 Pa.C.S. § 7508, was unconstitutional under Alleyne v.

United States, 133 S.Ct. 2151 (2013).1 Commonwealth v. Brewer, 121

A.3d 1143 (Pa.Super. 2015) (unpublished memorandum).                    The Alleyne

claim had not been included in either of Appellant’s PCRA petitions.

       The panel concluded that counsel was not ineffective and that the

Alleyne contention, which pertains to the legality of a sentence, was not

waived.    We nevertheless ruled that it was not raised in a timely manner

under 42 Pa.C.S. § 9545 because Appellant raised the Alleyne claim more

than one year after his judgment of sentence became final.                   This Court

____________________________________________


1
 In Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015), § 7508
was ruled unconstitutional under Alleyne. See also Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015) (invalidating a procedurally identical
mandatory minimum statute pursuant to Alleyne).



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observed that § 9545 requires all PCRA claims to be raised within one year

of when a defendant’s judgment of sentence becomes final. We noted that

Appellant’s judgment of sentence became final under the PCRA on April 15,

2013, and concluded that Appellant had until April 15, 2014 to raise Alleyne

under the PCRA.    Since the Alleyne issue was not raised until September

16, 2014, it was held untimely.      The Brewer Court also noted that in

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

that an Alleyne issue does not fall within an exception to the PCRA’s one-

year time bar.

      On September 14, 2015, Appellant filed a second, counseled petition

again raising the position that his sentence was unconstitutional and had to

be vacated under Alleyne and its progeny as well as presenting an assertion

that trial counsel was ineffective for failing to call a defense witness.   The

petition was dismissed as untimely, and this appeal followed.        Appellant

raises these issues on appeal:

           I. Whether the second PCRA petition was timely as a result
      of the application of the tolling provisions identified in
      Breakiron[, 781 A.2d 94 (Pa. 2001)]?

           II. Whether the five mandatory minimum sentences
      imposed under 18 PA.C.S. [§] 7508 must be vacated because
      the sentences were imposed under a statute ruled
      unconstitutional in Hopkins[, 117 A.3d 247 (Pa. 2015)]?

            III. Whether trial counsel was constitutionally ineffective
      for failing to interview Craig Cole who would have claimed
      responsibility for the 700 grams of cocaine found at Cole's
      residence?

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             IV. Whether the court of common pleas has inherent
      jurisdiction to correct an illegal sentence based on an
      unconstitutional statute?

Appellant’s brief at 6.

      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 contentions, we must analyze

whether Appellant’s September 14, 2015 PCRA petition was timely filed as

that issue implicates our jurisdiction. Miller, supra. If a PCRA petition is

untimely, “neither this Court nor the trial court has jurisdiction over the

petition.” Id. at 992 (citation omitted); see Commonwealth v. Chester,

895 A.2d 520, 522 (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).

We specifically determined in Appellant’s prior PCRA appeal that his

judgment of sentence became final on April 15, 2013, and that he had until

April 15, 2014 to file a timely PCRA petition.    The September 24, 2015

petition is therefore untimely.

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



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       (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 first claims that the time period for filing his second

PCRA petition was tolled during the pendency of his first PCRA petition under

Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001). Breakiron filed a

second PCRA petition which was dismissed as untimely. Our Supreme Court

affirmed that holding, and nothing in the Breakiron decision states or

implies that the time for filing a second PCRA petition is tolled by the filing of

a first one.   The above-quoted language in the PCRA is directly to the

contrary.

      The Supreme Court decision that does apply a form of tolling is

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).               Therein, the PCRA

court dismissed a second petition as untimely. Lark had invoked the newly



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discovered evidence exception to the one-year time bar.        The evidence in

question was discovered while Lark’s first PCRA petition was pending and our

Supreme Court held that, since Lark could not file a second PCRA petition

until the first one was resolved, he had until sixty days after litigation of the

first PCRA petition to file the second petition invoking the newly discovered

evidence exception to the PCRA.

      Herein, Appellant’s claims do not involve newly discovered evidence.

He was aware of his Alleyne claim in 2014, when it was presented in the

prior PCRA appeal.    As to the position that Craig Cole should have been

presented as a defense witness, Appellant concedes that he told counsel

about Cole at trial and counsel should have placed him on the stand.

Appellant’s brief at 21. Appellant therefore was aware of the witness as well

as counsel’s failure to present Cole during his January 2011 jury trial

proceedings.   The existence of Cole and of counsel’s default thus are not

newly discovered.

      Indeed, Appellant’s actual position as to Cole is that trial counsel was

ineffective for failing to present him as a witness because he would have

claimed ownership of drugs found in a stash house used by Appellant but

owned by Cole. Claims of ineffective assistance of counsel do not overcome

the one-year time bar of the PCRA.        Commonwealth v. Wharton, 886

A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness

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requirements of the PCRA.”); see also Commonwealth v. Gamboa-

Taylor, 753 A.2d 780 (Pa. 2000) (analyzing supposed newly discovered

evidence claim and recognizing that it actually was a position that prior

counsel was ineffective); Commonwealth v. Bronshtein, 752 A.2d 868

(Pa. 2000) (after-discovered evidence exception not satisfied by allegation

that facts which form basis of claim were not knowable until present counsel

advised defendant); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000)

(same). We therefore reject Appellant’s position that his claim as to Cole is

timely.

      Appellant presents identical concepts in issues two and four.         In

essence, his averment is that his mandatory minimum sentences were

imposed under an unconstitutional statute and must be vacated since courts

retain the inherent jurisdiction to correct illegal sentences and such claims

cannot be waived.     Appellant is mistaken in his assertion that the courts

retain jurisdiction indefinitely to correct an illegal sentence.   Our Supreme

Court has held specifically that, “Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA's

time limits or one of the exceptions thereto.”     Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999); see also Commonwealth v. Jackson, 30

A.3d 516 (Pa.Super. 2011).

      In Miller, supra, which was applied in Appellant’s previous appeal, we

specifically held 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    newly-recognized-constitutional-right   exception   to   §

9545(b)(1).     Miller, supra.       Miller ruled that the defendant’s sentence,

which was also unconstitutional under Alleyne, could not be corrected in an

untimely PCRA petition. Miller is controlling herein.2

       Having determined that the present PCRA petition was untimely, we

affirm the denial of PCRA relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




____________________________________________


2
  Indeed, Alleyne has yet to be held applicable retroactively to defendants
whose sentences were final prior to its June 17, 2013 filing date. In
Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), we ruled that
Alleyne did not apply retroactively so as to afford relief in the post-
conviction setting. The question of Alleyne’s retroactively is now pending in
an en banc case involving a timely filed PCRA petition. Commonwealth v.
Ciccone, 3114 MDA 2014.




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