J-S47020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

KENDRICK JERMANE HOLLOWAY

                            Appellant                    No. 217 MDA 2015


                 Appeal from the PCRA Order December 8, 2014
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0000662-2010


BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                       FILED JULY 28, 2015

        Kendrick Jermane Holloway appeals, pro se, from the order entered

December 8, 2014, in the Cumberland County Court of Common Pleas,

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq. Holloway seeks relief from the judgment

of sentence of an aggregate seven years, three months to 16 years’

imprisonment, following his jury conviction of possession with intent to

deliver heroin, unlawful possession of heroin, and possession of drug

paraphernalia.1 On appeal, he contends the PCRA court erred in permitting

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*
    Retired Senior Judge assigned to the Superior Court.
1
   35 P.S. §§        780-113(a)(30),       780-113(a)(16),   and   781-113(a)(32),
respectively.
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appointed counsel to withdraw pursuant to Turner/Finley2 when there

existed an issue of arguable merit, namely the legality of his sentence in

light of the United States Supreme Court’s decision in Alleyne v. United

States, 133 S.Ct. 2151 (U.S. 2013).              Because we agree with the PCRA

court’s conclusion that Holloway’s petition was untimely filed, and Holloway

is, therefore, entitled to no relief, we affirm the order on appeal.

       The facts and procedural history are aptly summarized by the trial

court as follows:

             [Holloway’s] vehicle was stopped by Sergeant Anthony
       DeLuca on February 23, 2010, for speeding (going 74 mph in a
       65 mph zone) and the lack of a visible registration expiration
       sticker.    After issuing [Holloway] a warning card for the
       registration expiration sticker, Sergeant DeLuca asked if he could
       search the vehicle and [Holloway] gave his consent. During the
       search, 18,548 packets of heroin, weighing 460 grams, were
       found in a concealed trap compartment of the vehicle.

            [Holloway] filed a Motion to Suppress on June 25, 2010. A
       suppression hearing was held on August 23, 2010. [Holloway’s]
       Motion to Suppress Evidence was denied by Order of Court on
       October 27, 2010. Thereafter, a jury trial was held on November
       15-19, 2010. [Holloway] was found guilty of Counts 1, 3, and 4,
       and was found not guilty of Count 2.

             [Holloway] was sentenced on December 21, 2010. At
       Count 1, [possession with intent to deliver,] he was sentenced to
       7 to 15 years imprisonment in a state correctional institution.
       This was an aggravated range sentence. The reasons given by
       the Court for the aggravated range sentence were: (1) a lesser
       sentence would depreciate the seriousness of the crime and (2)
____________________________________________


2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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       the sheer quantity of drugs involved established the offense as a
       major drug trafficking crime. Count 3 [possession of heroin]
       merged with Count 1 for sentencing purposes. At Count 4,
       [possession of paraphernalia, Holloway] was sentenced to 3
       months to 1 year in a state correctional institute to run
       consecutive with Count 1. [Holloway’s] aggregate sentence was
       7 years, 3 months to 16 years.

            [Holloway] thereafter filed a direct appeal, arguing that the
       Court erred in denying his Motion to Suppress for several
       reasons. The Superior Court affirmed [Holloway’s] judgment of
       sentence, and [his] Petition for Allowance of Appeal to the
       Supreme Court was denied on March 7, 2012.                   [See
       Commonwealth v. Holloway, 37 A.3d 1222 (Pa. Super. 2011)
       (unpublished memorandum), appeal denied, 40 A.3d 120 (Pa.
       2012).]

             [Holloway] filed the instant PCRA on July 3, 2014. This
       Court appointed PCRA counsel, who filed a no-merit letter and a
       Motion for Leave to Withdraw as Counsel on October 22, 2014.
       After conducting an independent review and finding no merit to
       [Holloway’s] allegations, on October 24, 2014, this Court allowed
       PCRA counsel to withdraw and notified [Holloway] that it
       intended to dismiss the PCRA Motion within 20 days. [Holloway]
       filed an Objection to Appointed Counsel Motion to Withdraw
       Pursuant to Rule 907 on December 5, 2014. Thereafter, this
       Court dismissed [Holloway’s] PCRA [petition] on December 8,
       2014. The instant appeal followed.

PCRA Court Opinion, 2/23/2015, at 2-3 (footnotes omitted).3

       On appeal, Holloway contends the PCRA court erred in permitting

counsel to withdraw because there is an issue of arguable merit in the

record.    Specifically, Holloway contends he was “sentenced to an illegally



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3
  On January 6, 2015, the PCRA court ordered Holloway to file a concise
statement of errors complained of on appeal. Holloway complied with the
court’s directive, and filed a concise statement on January 23, 2015.



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enhanced sentence” pursuant to Alleyne, supra.4                Holloway’s Brief at 2.

Furthermore,      he   asserts     this   claim   satisfies   the   newly   recognized

constitutional right exception to the PCRA’s timing requirements.              For the

reasons that follow, we disagree.

       Our standard of review is well-established:

       Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination and
       whether the PCRA court’s decision is free of legal error. The
       PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).

       In the present case, the PCRA court determined that Holloway’s

petition was untimely filed. The PCRA mandates that any request for relief,

“shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S. §9545(b)(1).

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4
  In Alleyne, supra, the United States Supreme Court expanded upon its
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and held that
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, supra, 133 S.Ct. at 2155. Since Alleyne was decided, this Court
has consistently invalidated our mandatory minimum sentencing statutes as
unconstitutional. See, e.g., Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc) (invalidating 42 Pa.C.S. § 9712.1);
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super 2014) (invalidating
42 Pa.C.S. §§ 9712 and 9713); Commonwealth v. Wolfe, 106 A.3d 800
(Pa. Super. 2014) (invalidating 42 Pa.C.S. § 9718); Commonwealth v.
Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc) (invalidating 18 Pa.C.S.
§ 7508).




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      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply
      to all PCRA petitions, regardless of the nature of the individual
      claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations

omitted).

      Here, Holloway’s judgment of sentence became final on June 5, 2012,

90 days after the Pennsylvania Supreme Court denied his petition for

allocatur, and Holloway failed to petition the United States Supreme Court

for review.   See 42 Pa.C.S. § 9545(b)(3); U.S. Supreme Court Rule 13.

Accordingly, Holloway had until June 5, 2013, to file a timely PCRA petition.

The present petition, filed over a year later on July 3, 2014, is facially

untimely.

      Nevertheless, pursuant to Section 9545(b), an otherwise untimely

petition is not time-barred if the petitioner pleads and proves that a time-

for-filing exception applies. See 42 Pa.C.S. § 9545(b). In the present case,

Holloway claims the “newly recognized constitutional right” exception, set

forth in Section 9545(b)(1)(iii) saves his petition from dismissal.    Section

9545 (b)(i)(iii) provides an exception to the timing requirements if a

peititoner pleads and proves 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 period provided in this section

and has been held by that court to apply retroactively.” 42 Pa.C.S. §

9545(b)(2)(iii) (emphasis supplied).


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       However, “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.”      Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014). Therefore, Alleyne does not provide

Holloway with an exception to the PCRA’s timing requirements.5 Id.

       Because we conclude (1) the only purported issue of “arguable merit”

asserted by Holloway is, in fact, meritless, (2) Holloway’s PCRA petition was

untimely filed, and (3) Holloway has failed to establish an exception to the

timing requirements, we detect no basis to conclude that the PCRA court

erred in granting counsel’s petition to withdraw and dismissing Holloway’s

PCRA petition.6

       Order affirmed.




____________________________________________


5
  Furthermore, we note that our review of the certified record confirms the
finding of the PCRA court that Holloway did not receive a mandatory
minimum sentence, and, therefore, Alleyne does not apply. See PCRA
Court Opinion, 2/23/2015, at 6-7. See also N.T., 12/21/2010, at 2, 5
(although Holloway asked the trial court to impose the five-year mandatory
minimum sentence on charge of possession with intent to deliver, the court
imposed aggravated range sentence of seven to 15 years).
6
  We also note PCRA counsel raised and rejected a possible Alleyne claim in
his “no merit” letter. See “No Merit” Letter, 10/22/2014, at 2-3.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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