J-S67017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ELWOOD JOHNSON

                            Appellant                No. 1102 EDA 2016


                  Appeal from the PCRA Order March 29, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0009065-2006


BEFORE: FORD ELLIOT, P. J. E., STEVENS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.                          FILED OCTOBER 11, 2016

       Appellant, Elwood Johnson, appeals from the March 16, 2016 order

denying, as untimely, his sixth petition filed under the Post Conviction Relief

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

       On November 21, 2008, a jury convicted Appellant of one count of

possession of with intent to deliver at least 100 grams of cocaine, two

counts of possession of a controlled substance, two counts of criminal use of

a communications facility, one count of criminal conspiracy, one count of

dealing in proceeds of unlawful activities, and two counts of corrupt

organizations.1


____________________________________________


1
 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 7512, §
903, § 5111(a), and § 911(b), respectively.
J-S67017-16


      On February 5, 2009, the trial court sentenced Appellant to an

aggregate term of sixteen and one-half to thirty-three years’ imprisonment,

which included a seven year mandatory minimum sentence pursuant to

statute. See PCRA Court Opinion, 4/25/16, at 1-2; see also 18 Pa.C.S. §

7508(3)(iii) (directing a mandatory minimum sentence of at least seven

years’ incarceration where the weight of the substance possessed is at least

100 grams and defendant was previously convicted of another drug

trafficking offense).

      Appellant timely filed a notice of appeal with this Court, challenging

the weight and sufficiency of the evidence, and the trial court’s denial of his

motion to suppress evidence.      On August 6, 2010, this Court affirmed

Appellant’s judgment of sentence, and the Pennsylvania Supreme Court

denied his subsequent petition for allowance of appeal on March 9, 2011.

See Commonwealth v. Johnson, 11 A.3d 1014 (Pa. Super. 2010)

(unpublished memorandum), appeal denied, 20 A.3d 485 (Pa. 2011)

(unpublished memorandum).

      Appellant has since filed numerous petitions, including several while

review was still outstanding, seeking collateral relief.    He filed his first

petition on April 29, 2011. Appointed counsel submitted a Turney/Finley “no




                                     -2-
J-S67017-16


merit” letter.2 The PCRA court granted counsel’s petition to withdraw and

sent Appellant notice that his petition would be dismissed without a hearing.

The PCRA court then dismissed his petition. Appellant appealed to this Court,

which remanded for reappointment of PCRA counsel and an evidentiary

hearing. The petition was ultimately dismissed by the PCRA court on May

31, 2013. Appellant did not file an appeal.

         Appellant’s second and third petitions, filed during the pendency of the

litigation of his first PCRA, were dismissed as premature. His fourth petition

was filed July 18, 2013 and dismissed by the PCRA court, after proper

notice, without a hearing.         This Court denied his subsequent appeal on

October 22, 2014.       See Commonwealth v. Johnson, 108 A.3d 120 (Pa.

Super. 2014) (unpublished memorandum).              Appellant’s fifth PCRA was

dismissed, after proper notice, on September 9, 2015. This Court dismissed

his appeal per curiam on January 8, 2016, for failure to file an appellate

brief.

         On February 19, 2016, Appellant filed the instant petition, contending

his sentence was illegal pursuant to Alleyne v. United States, 133 S. Ct.

2151 (2013). On March 3, 2016, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition without a hearing.


____________________________________________


2
 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998);
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).



                                           -3-
J-S67017-16


Appellant filed a response, but on March 29, 2016, the court dismissed

Appellant’s petition as untimely.

      Appellant timely filed a notice of appeal and submitted a statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).            The PCRA

court issued a responsive opinion April 25, 2016.

      Herein, Appellant presents one issue for our review:

      1. Did the United States Supreme Court decision in
      Montgomery v. Louisiana, 136 S.Ct. 718 (2016) establish all
      substantive constitution [sic] new rule a constitutional right to
      retroactivity and gives state courts jurisdiction to hear
      Appellant’s Alleyne challenge on collateral review under 42
      Pa.C.S. § 9545(b)(1)(iii) and did Appellant file in a timely
      manner under the time requirement of 42 Pa.C.S. § 9545(b)(2)?

Appellant’s Brief at 1 (unnecessary capitalization and emphasis omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded   in   order   to   address   the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

                                      -4-
J-S67017-16


       (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 attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant acknowledges that his petition is untimely.3          Nevertheless,

Appellant asserts his claim is based upon a newly recognized constitutional

right held to apply retroactively.             See Appellant’s Brief at 8 (citing 42

Pa.C.S. § 9545(b)(1)(iii)).
____________________________________________


3
  Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on June 7, 2011, at the expiration of the ninety-day time
period for seeking review with the United States Supreme Court. See 42
Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)
(noting that Sup.Ct.R. 13 grants an Appellant ninety days to seek review
with the United States Supreme Court). Thus, Appellant had until June 6,
2012, to timely file a petition. Appellant filed his current petition on February
19, 2016.



                                           -5-
J-S67017-16


      According to Appellant, the sentence imposed upon him is illegal

pursuant to a newly-recognized constitutional rule. See Appellant’s Brief at

8, 10 (citing in support Alleyne, 133 S. Ct. at 2155 (concluding that “[a]ny

fact that … increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt”)). Moreover,

Appellant asserts, this new rule must be applied retroactively, thus entitling

him to collateral relief.       Id. at 10-11 (citing in support Montgomery v.

Louisiana, 136 S. Ct. 718 (2016)).

      Appellant’s reliance upon Montgomery to establish the retroactive

applicability of Alleyne is misplaced.          In Montgomery, the United States

Supreme Court recognized that state collateral review courts must give

retroactive   effect   to   a    new,   substantive   rule   of   constitutional   law.

Montgomery, 136 S. Ct. at 729.              However, the Pennsylvania Supreme

Court has recently determined that the rule announced in Alleyne was

neither a substantive nor a “watershed” procedural rule and, therefore, did

not   apply    retroactively      to    cases    pending     on   collateral   review.

Commonwealth v. Washington, --- A.3d ---, at *8 (Pa. 2016), see also

Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015)

(same).

      Appellant’s petition is untimely, and he has not satisfied a timeliness

exception to the requirements of the PCRA. Consequently, the PCRA court




                                          -6-
J-S67017-16


was without jurisdiction to review the merits of Appellant’s claim, and

properly dismissed his petition. See Ragan, 932 A.2d at 1170.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




                                  -7-
