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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
' PENNSYLVANIA
v.
QUINTANT PATRICK ELLIS, : No. 771 WDA 2015
Appellant

Appeal from the PCRA Order, April 29, 2015,
in the Court of Common Pleas of A||egheny County
Criminal Division at No. CP-O2-CR-0009622-2008

BEFORE: FORD ELLIO`|_|', P.J.E., LAZARUS AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIO'|'|', P.J.E.: FILED NOVEMBER 08, 2016

Quintant Patricl< Ellis appeals from the order of April 29, 2015,
dismissing his second PCRA1 petition as untimely. We affirm.

On January 7, 2009, following a non-jury trial, appellant was found
guilty of two counts of robbery, and one count each of criminal conspiracy
and carrying a firearm without a license.2 The Commonwealth filed notice of
its intention to seek the mandatory minimum sentence of 5 years'
imprisonment for the robbery offenses pursuant to 42 Pa.C.S.A. § 9712
(crimes committed with firearms). On April 6, 2009, appellant received

concurrent sentences of 61/2 to 13 years' imprisonment for each count of

 

1 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A. §§ 3701(a)(1)(i) or (ii), 903(a)(1), and 6106, respectively.

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robbery, and a consecutive sentence of 21/2 to 5 years for carrying a firearm
without a license, for an aggregate sentence of 9 to 18 years' imprisonment.
No further penalty was imposed for criminal conspiracy.

Appellant did not file post-sentence motions or a direct appeal;
however, on June 1, 2011, appellant filed a pro se PCRA petition, seeking
reinstatement of his appellate rights nunc pro tunc. Counsel was
appointed, and filed a petition to withdraw and Turner/Finley “no merit”
letter.3 On September 14, 2011, the PCRA court granted counsel permission
to withdraw and issued a Rule 9074 20-day notice. By order filed January
11, 2012, appellant's petition was dismissed. Appellant did not file an
appeal from that order.

On November 24, 2014, appellant filed a second pro se PCRA petition.
Therein, appellant alleged that the after-recognized constitutional right
exception to the PCRA's one-year jurisdictional time limitation applied. See
42 Pa.C.S.A. § 9545(b)(1)(iii). According to appellant, his sentence was
illegal under Alleyne v. United States, _ U.S. _, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013) (holding that facts that increase mandatory minimum
sentences must be submitted to the jury and must be found beyond a

reasonable doubt). See also, e.g., Commonwealth v. Newman, 99 A.3d

 

3 commonwealth v. rurner, 544 A.2d 927 (Pa. 1988); commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

4 Pa.R.crim.P. 907.

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86 (Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015)
(42 Pa.C.S.A. § 9712.1 (relating to drug offenses committed with firearms),
does not pass constitutional muster under Alleyne).

On December 4, 2014, counsel was appointed and filed an amended
petition on appellant's behalf on December 23, 2014, raising the identical
issue. The PCRA court issued Rule 907 notice on January 13, 2015, and by
order filed April 29, 2015, appellant's petition was dismissed. A timely
notice of appeal was filed on May 15, 2015, together with a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On
May 18, 2016, the PCRA court filed a Rule 1925(a) opinion.

Appellant has raised the following issue for this court's review:

1. Did the trial court err in denying appellant's
PCRA petition since appellant's two five year
mandatory minimum sentences for robbery
were unconstitutional, pursuant to Alleyne []
and [] Newman [], the aforementioned
holdings should be retroactively applied, but,
arguendo, even if those holdings are not
retroactive, Newman and other recent cases
have held that 42 Pa.C.S. § 9712(a) is facially
unconstitutional, from the date of its
enactment, and therefore appellant must be
re-sentenced?

Appellant's brief at 3 (capitalization omitted; reformatted).

Our standard of review of a PCRA court's dismissal of
a PCRA petition is limited to examining whether the
PCRA court's determination is supported by the
record evidence and free of legal error.
Commonwealth v. Wilson, 824 A.2d 331, 333
(Pa.Super. 2003) (en banc). Before addressing the
merits of Appellant's claims, we must first determine

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whether we have jurisdiction to entertain the
underlying PCRA petition. See Commonwealth v.
Hackett, 598 Pa. 350, 956 A.2d 978, 983 (2008)
(explaining that the timeliness of a PCRA petition is a
jurisdictional requisite).

The most recent amendments to the PCRA, effective
January 19, 1996, provide that a PCRA petition,
including a second or subsequent petition, shall be
filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1).
A judgment is deemed final “at the conclusion of
direct review, including discretionary review in the
Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration
of the time for seeking review." 42 Pa.C.S.A.
§ 9545(b)(3).

The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and
the petitioner must prove:

(i) the failure to raise a claim previously was
the result of interference by government
officials with the presentation of the
claim in violation of the Constitution or
the law of this Commonwealth or the
Constitution or law 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 Pennsylvania after the time
period provide[d] in this section and has
been held by that court to apply
retroactively.

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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “We emphasize

that it is the petitioner who bears the burden to

allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Marshall,

596 Pa. 587, 596, 947 A.2d 714, 719 (2008)

(citations omitted).
Commonwealth v. Whitehawk, _ A.3d _, 2016 WL 4473779 at *2
(Pa.Super. 2016).

Instantly, appellant was sentenced on April 6, 2009, and he did not file
post-sentence motions or a timely appeal with this court. Therefore,
appellant's judgment of sentence became final 30 days thereafter on May 6,
2009. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment becomes final
at the conclusion of direct review, 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[]”). As such, appellant
had until May 6, 2010, to file a timely first petition for post-conviction relief.
Appellant filed the instant PCRA petition on November 24, 2014; therefore, it

is patently untimely, and the PCRA court could not address the merits of

appellant's petition unless a timeliness exception applies.5

 

5 According to appellant, because issues relating to Alleyne implicate the
legality of the sentence, they can be brought at any time and “cannot be
defeated pursuant to the PCRA time-bar.” (Appellant's brief at 11.) See
Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal
denied, 121 A.3d 494 (Pa. 2015) (issues pertaining to Alleyne go directly
to the legality of the sentence and may be entertained as long as the
reviewing court has jurisdiction) (citations omitted). However, a legality of
sentencing issue must be raised in a timely filed PCRA petition. See
42 Pa.C.S.A. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214, 223

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As stated above, appellant argues that Subsection 9545(b)(1)(iii), the
newly recognized constitutional right exception, applies, based on Alleyne
and Newman. However, recently our supreme court decided that Alleyne
does not apply retroactively to cases pending on collateral review.
Commonwealth v. Washington, _ A.3d _, 2016 WL 3909088 (Pa.
July 19, 2016). See also Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014) (Alleyne does not satisfy the new retroactive
constitutional right exception to the PCRA's one-year time-bar, 42 Pa.C.S.A.
§ 9545(b)(1)(iii)). Cf. Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super.
2015) (defendant was entitled to the benefit of Alleyne where he raised the
claim in a My PCRA petition w his judgment of sentence was still
pending on direct review when Alleyne was handed down).

Appellant contends that the rule announced in Alleyne is substantive
in character and should be applied retroactively. (Appellant's brief at 12.)
To the contrary, our supreme court in Washington decided that Alleyne
was not a groundbreaking, “watershed" rule of criminal procedure that
applies retroactively on collateral review. See Teague v. Lane, 489 U.S.
288 (1989) (plurality) (a new constitutional rule of criminal procedure does

not generally apply to convictions that were final when the new rule was

 

(Pa. 1999) (holding that “[a]lthough a 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").

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announced); see also Commonwealth v. Riggle, 119 A.3d 1058
(Pa.Super. 2015) (declining to give Alleyne retroactive effect to cases on
timely collateral review when the defendant's judgment of sentence was
finalized before Alleyne was decided). Therefore, appellant is not entitled
to the benefit of Alleyne.6

For these reasons, appellant's serial PCRA petition was untimely, no
exception to the jurisdictional one-year time-bar applied, and the PCRA court
did not err in dismissing it without a hearing.

Order affirmed.

Judgment Entered.

 

Joseph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

 

6 Furthermore, appellant did not file his petition within 60 days of Alleyne
(June 17, 2013) or this court's decision in Newman (August 20, 2014),
invalidating Section 9712.1. See 42 Pa.C.S.A. § 9545(b)(2) (a petition
invoking one of the statutory exceptions must be filed within 60 days of the
date the claim could have been presented); Commonwealth v. Brandon,
51 A.3d 231, 235 (Pa.Super. 2012) (“[T]he sixty-day period begins to run
upon the date of the underlying judicial decision."), quoting
Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.Super. 2007).

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