J-S50012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

ESAU BURROUGHS

                          Appellant                No. 2128 EDA 2016


                 Appeal from the PCRA Order June 13, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0820511-1985


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

JUDGMENT ORDER BY PANELLA, J.                   FILED OCTOBER 13, 2017

      Appellant, Esau Burroughs, was sentenced to life imprisonment after a

jury convicted him of first-degree murder in 1985. In 2012, Burroughs filed

the instant Post Conviction Relief Act (“PCRA”) petition and amended it twice

thereafter. The PCRA court dismissed the petition as untimely. On appeal,

Burroughs contends that his amended petition was timely, as he claims

Alleyne v. United States, 133 S.Ct. 2151 (2013), renders his sentence

illegal. After careful review, we affirm.

      Burroughs filed the instant petition, his third, on August 12, 2012. In

it, he claimed that he was entitled to re-sentencing pursuant to Miller v.

Alabama, 567 U.S. 460 (2012) (ruling imposition of mandatory life without
J-S50012-17


parole sentences on juvenile offenders is unconstitutional).1 He subsequently

filed two writs of habeas corpus, one on July 7, 2015 and one on February

16, 2016, which the PCRA court treated as amendments to the August 12,

2012 petition.2 In these two amendments, Burroughs argued that the trial

court had imposed a mandatory minimum sentence for his first-degree

murder conviction, and this mandatory sentence was illegal under Alleyne.

        On appeal, Burroughs does not argue that he was entitled to relief

pursuant to Miller. Any such claim is therefore waived. Burroughs now

focuses his claim upon Alleyne. He argues his claim cannot be waived as he

is alleging the existence of an illegal sentence. This argument has been

repeatedly rejected. See, e.g., Commonwealth v. Miller, 102 A.3d 988,

995 (Pa. Super. 2014).

        Even assuming that Burroughs is attempting to argue that Alleyne

satisfies the newly recognized constitutional right exception enshrined in 42

Pa.C.S.A. § 9545(b)(1)(iii), he is due no relief. Our Supreme Court has held

that “Alleyne does not apply retroactively to cases pending on collateral

review….” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).



____________________________________________


1 Burroughs does not dispute that he was over the age of 18 at the time he
committed the murder for which he was convicted. See PCRA Petition,
8/12/12, at 3.

2   Burroughs does not challenge this treatment on appeal.



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     Finally, the record belies Burroughs’s contention that he received a

mandatory minimum sentence based upon facts not presented to the jury.

He received a sentence of life imprisonment without the possibility of parole

based upon the jury’s verdict that he committed first-degree murder. This

sentence was a mandatory minimum sentence, but it did not require any

judicial fact-finding. As such, even if we addressed Burrough’s claim on the

merits, he would be due no relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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