J-S35019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

DAMAR LAMONT JORDAN

                            Appellant                      No. 1574 WDA 2016


               Appeal from the PCRA Order September 15, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0003348-2012


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                                        FILED JULY 6, 2017

        Appellant, Damar Lamont Jordan, appeals from the order entered

September 15, 2016, denying as untimely his second petition for collateral

relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

        In April 2013, Appellant pleaded guilty to third degree murder of

Kendall Bryant and the aggravated assault of Ramone Lemon.1 See PCRA

Court Opinion, 11/15/16, at 1. On June 20, 2013, Appellant was sentenced

to serve an aggregate sentence of twenty and one-half to forty-one years of

incarceration.    Appellant’s judgment of sentence was affirmed on appeal.

See     Commonwealth          v.   Jordan,     97   A.3d   802    (Pa.   Super.   2014)
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c) and 18 Pa.C.S. § 2702.
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(unpublished memorandum).            He did not pursue allowance of appeal with

the Pennsylvania Supreme Court.

       In June 2014, Appellant timely filed a first PCRA petition, challenging

the validity of his plea.      Counsel was appointed and filed a supplemental

petition on his behalf. The PCRA court issued an opinion and notice of intent

to dismiss pursuant to Pa.R.Crim.P. 907(1), also amending its sentencing

order so that restitution was assigned to count one only.       The PCRA court

then denied collateral relief.        Appellant timely appealed, and this Court

affirmed the dismissal. See Commonwealth v. Jordan, 122 A.3d 456 (Pa.

Super. 2015), appeal denied, 128 A.3d 1205 (Pa. 2015).

       On May 24, 2016, Appellant untimely filed pro se a second PCRA

petition, arguing that his mandatory minimum sentence was illegal pursuant

to Alleyne v. United States2 and that his prior counsel had provided

ineffective assistance of counsel. See PCRA Petition, 5/24/16, at 1-6. The

PCRA court sent Appellant notice of intent to dismiss his petition as untimely

pursuant to Pa.R.Crim.P. 907. The court then dismissed his petition.

       Appellant timely appealed and filed a court-ordered statement of

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

court issued a responsive opinion relying on its previous order.


____________________________________________


2
  Alleyne v. United States, 133 S. Ct. 1251 (2013) (holding that any fact
that increases the sentence for a given crime must be submitted to the jury
and found beyond a reasonable doubt).



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     We have rephrased Appellant’s issues for clarity. On appeal, Appellant

contends that:

     1. The PCRA court erred in dismissing Appellant’s petition as
     untimely, as Appellant had been sentenced to an illegal
     mandatory minimum sentence under Alleyne, and Alleyne
     should apply retroactively to his case;

     2. Prior direct appeal and PCRA counsel were ineffective for
     failure to raise Appellant’s Alleyne claim;

     3. The PCRA court erred in dismissing Appellant’s petition as
     untimely, as Appellant’s sentences for aggravated assault and
     third degree murder should have merged for sentencing
     purposes.

See Appellant’s Brief at 10-17.

     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:

     (i) the failure to raise the claim previously was the result of
     interference by government officials with the presentation of the



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       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).

       We will address Appellant’s first two issues together, as they are

intertwined.     Appellant’s 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 17 (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

____________________________________________


3
 Appellant’s judgment of sentence became final on March 13, 2014, at the
expiration of his thirty days to petition for allowance of appeal to the
Pennsylvania Supreme Court.        See Pa.R.A.P. 1113(a); see also
Commonwealth v. McMaster, 730 A.2d 524, 527 (Pa. Super. 1999).
Accordingly, Appellant had until March 13, 2015, to timely file a PCRA
petition.



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new rule must be applied retroactively, thus entitling him to collateral relief.

Id. (citing in support Montgomery v. Louisiana, 136 S. Ct. 718 (2016)).

      While the PCRA court correctly points out that in general, Alleyne

claims are not cognizable on post collateral review, citing in support

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), this Court has

recognized narrow exceptions to this rule. We have held that a petitioner is

entitled to application of Alleyne where an appellant raises the claim in a

timely PCRA petition and his judgment of sentence was not final prior to the

date of the Alleyne decision. See Commonwealth v. Ruiz, 131 A.3d 54,

59-60 (Pa. Super. 2015).

      Alleyne was decided June 17, 2013. Appellant was sentenced on June

20, 2013, three days later.    Accordingly, because Appellant’s judgment of

sentence was not final prior to the date of the Alleyne decision, he had the

one-year PCRA period to raise a challenge to the legality of his sentence.

Unfortunately for Appellant, he did not raise his claims on direct appeal or

within the one-year time period to file a PCRA.      Had PCRA counsel timely

raised and preserved this issue, Appellant could have retained a viable claim

of ineffective assistance of appellate counsel or a challenge to the legality of

his sentence.    See Ruiz, 131 A.3d at 60, citing Commonwealth v.

Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (recognizing that

Alleyne applies to all criminal cases pending on direct review), appeal

denied, 121 A.3d 946 (Pa. 2015).


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     However, Alleyne does not invalidate a mandatory minimum sentence

when presented in an untimely PCRA petition.         See Commonwealth v.

Miller, 102 A.3d 988 (Pa. Super. 2014); see also Washington, 142 A.3d

at 820.     With regard to his claims of ineffectiveness of PCRA counsel,

Appellant   has   not   pleaded   a   circumstance   that   would   allow   the

circumvention of the time bar. See, e.g., 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

     Finally, Appellant argues that his sentence is illegal because his

sentences for aggravated assault and third degree murder should have

merged for sentencing purposes. See Appellant’s Brief at 11-12. Appellant

has not pleaded a time bar exception with regard to this claim, and although

the legality of sentence may be reviewed within the PCRA, claims “must still

first satisfy the PCRA's time limits or one of the exceptions thereto.”     See

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2017




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