J-S10044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ERIC NIGEL TAULTON,

                            Appellant                   No. 2549 EDA 2015


                  Appeal from the PCRA Order August 4, 2015
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0004611-2003


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED FEBRUARY 19, 2016

        Appellant, Eric Nigel Taulton, appeals pro se from the order of August

4, 2015, denying his fourth petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On September 24, 2004, a jury convicted Appellant of corrupt

organizations, criminal conspiracy, multiple counts of criminal use of a

communications facility, and three counts of delivery of cocaine in an

amount of at least 100 grams.1             On December 8, 2004, the trial court

sentenced Appellant to an aggregate term of incarceration of not less than

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 911(b), 903, 7512, and 35 P.S. § 780-113(a)(30),
respectively.
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twenty-one nor more than forty-two years.              On May 2, 2006, this Court

affirmed the judgment of sentence, and the Pennsylvania Supreme Court

denied leave to appeal on December 13, 2006.              (See Commonwealth v.

Taulton, 903 A.2d 54 (Pa. Super. 2006) (unpublished memorandum),

appeal denied, 912 A.2d 1292 (Pa. 2006).

        Subsequently, Appellant filed three PCRA petitions.         The PCRA court

dismissed each petition, and this Court affirmed their dismissals on appeal.

        On October 16, 2014, Appellant filed the instant, pro se, fourth PCRA

petition.   On June 10, 2015, the PCRA court filed a Rule 907 notice of its

intention to dismiss Appellant’s PCRA petition. See Pa.R.Crim.P. 907(1). On

July 15, 2015, Appellant filed a response.            On August 4, 2015, the PCRA

court    dismissed    Appellant’s    fourth    PCRA    petition.   Appellant   timely

appealed.2

        Appellant raises one question for this Court’s review:

              I.    Is the Appellant’s sentence a nullity in light of this
              Court’s ruling in Commonwealth v. Newman[, 99 A.3d
              86, 103 (Pa. Super. 2014) (en banc), appeal denied, 121
              A.3d 496 (Pa. 2015),] in which the mandatory sentencing
              statutes have been found to be facially unconstitutional?

(Appellant’s Brief, at 7) (most capitalization omitted).

____________________________________________


2
  Appellant filed a timely concise statement of errors raised on appeal
pursuant to the court’s order on September 2, 2015.        See Pa.R.A.P.
1925(b). The PCRA court filed an opinion on September 15, 2015. See
Pa.R.A.P. 1925(a).




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      Our standard of review for an order denying PCRA relief is well-settled:

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

      Here, Appellant filed his fourth PCRA petition on October 16, 2014.

The PCRA provides that “[a]ny petition under this subchapter, including a

second or subsequent petition, shall be filed within one year of the date the

judgment becomes final[.]”        42 Pa.C.S.A. § 9545(b)(1).        Appellant’s

judgment of sentence became final on March 13, 2007, ninety days after the

Pennsylvania Supreme Court denied leave to appeal and Appellant did not

file a petition for a writ of certiorari with the United States Supreme Court.

See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had

one year, until March 13, 2008, to file a timely PCRA petition.        Because

Appellant did not file his current petition until October 16, 2014, the petition

is facially untimely. Thus, he must plead and prove that he falls under one

of the exceptions at Section 9545(b) of the PCRA.         See 42 Pa.C.S.A. §

9545(b)(1).




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      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

            (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.

Id. at § 9545(b)(1)(i)-(iii).   Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”            Id. at § 9545(b)(2).       The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).

      Here, however, Appellant contends that he does not need to

demonstrate timeliness because his sentence is a legal nullity.            (See

Appellant’s Brief, at 10-13). He further claims all arguments about whether

or not the United States Supreme Court’s decision in Alleyne v. United

States, 133 S.Ct. 2151 (2013), and this Court’s decision in Newman,

supra, apply retroactively to cases on collateral review are somehow

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irrelevant.   (See Appellant’s Brief, at 10-13).    In essence, he appears to

state that because the laws that he was sentenced under are void ab initio,

his sentence is unconstitutional because it is as if the offense for which the

jury convicted him never existed. (See id.). We disagree.

      Firstly, the fact that Appellant challenges the legality of sentence,

claiming his sentence is a legal nullity, does not allow him to evade the

PCRA’s timeliness requirements.      In Commonwealth v. Fahy, 737 A.2d

214 (Pa. 1999), the Pennsylvania Supreme Court rejected this contention.

The Fahy Court stated, “[a]lthough 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.” Fahy, supra at 223 (citation omitted).

Thus, Appellant cannot evade the PCRA timeliness requirements based on a

claim of an illegal sentence. See id.

      In any event, Appellant fails to point to a single case in which this

Court has applied either Alleyne or Newman to cases on collateral review.

(See Appellant’s Brief, at 10-13).      On the contrary, this Court has clearly

stated that Alleyne does not apply on collateral review:

            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 Appellant’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. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.

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      Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
      citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
      L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
      Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
      purposes of subsection (iii), the language ‘has been held by that
      court to apply retroactively’ means the court announcing the rule
      must have also ruled on the retroactivity of the new
      constitutional right, before the petitioner can assert retroactive
      application of the right in a PCRA petition[ ]”), appeal denied,
      597 Pa. 715, 951 A.2d 1163 (2008).

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).               Since

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

held that Alleyne applies retroactively. Appellant’s claim that his sentence

is a legal nullity and that upholding his sentence is in conflict with Newman,

is simply without any relevant legal support. See Miller, supra at 995; see

also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015)

(holding “Alleyne is not entitled to retroactive effect in th[e] PCRA

setting.”).

      Here, Appellant was sentenced in 2004.       His judgment of sentence

became final in early 2007. Thus, this matter is clearly on collateral review,

and his PCRA is facially untimely.         Because Alleyne does not apply

retroactively to cases on collateral review, it cannot afford Appellant relief.

See Riggle, supra at 1067; Miller, supra at 995. Thus, the PCRA court

properly found that Appellant’s PCRA petition was untimely with no statutory

exception applying. See Hutchins, supra at 53.

      Order affirmed.

      President Judge Gantman joins the Memorandum.

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     President Judge Emeritus Bender concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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