J-S18015-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                     v.

CALVIN J. CRAWFORD,

                           Appellant                   No. 1039 MDA 2015


                   Appeal from the PCRA Order May 14, 2015
               In the Court of Common Pleas of Dauphin County
                           Criminal Division at No(s):
                            CP-22-CR-0003323-2000
                            CP-22-CR-0003771-2000


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 16, 2016

       Calvin J. Crawford appeals from the May 14, 2015 order denying his

second PCRA petition. We affirm.

       On June 6, 2001, a jury convicted Appellant of four counts of unlawful

delivery of a controlled substance and one count of possession with intent to

deliver   a   controlled   substance.   Pennsylvania   State   Trooper   Timothy

Longenecker, while engaged in an undercover operation with the Dauphin

County Drug Task Force and the Swatara Township Police Department,

purchased cocaine from Appellant on four occasions. Appellant was arrested

while engaged in a fifth sale of the drug to the officer. The aggregate weight

of the drugs in question was 28.9 grams of cocaine. On October 18, 2001,

*
    Retired Senior Judge assigned to the Superior Court.
J-S18015-16



Appellant was sentenced to fourteen to sixty years imprisonment followed by

twenty years probation. His sentence was based, in part, upon application

of the mandatory minimum sentencing provision of 18 Pa.C.S. § 7508 due to

the weight of the drugs involved in each sale.               On August 12, 2002, we

affirmed, Commonwealth v. Crawford, 809 A.2d 954 (Pa.Super. 2002)

(unpublished memorandum), and Appellant did not seek further review.

       On December 11, 2002, Appellant filed a pro se PCRA petition, and

counsel    was    appointed.        Counsel     moved   to    withdraw   pursuant   to

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

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).                         Counsel was

permitted to withdraw, and PCRA relief was denied. On appeal, we affirmed.

Commonwealth           v.    Crawford,         883   A.2d    686   (Pa.Super.   2004)

(unpublished memorandum).

       On December 31, 2014, Appellant filed his second PCRA petition

claiming his sentence was invalid pursuant to Alleyne v. United States,

133 S.Ct. 2151 (2013).1 After issuing notice of its intent to do so, the PCRA

____________________________________________


1
  In Alleyne, the United States Supreme Court held that any fact, other
than a prior conviction, that triggers application of a mandatory minimum
sentence must be proven beyond a reasonable doubt before the factfinder.
Section   7508    was    held    unconstitutional  based   upon   Alleyne.
Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015); see also
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014) (striking down
mandatory minimums imposed by 42 Pa.C.S. § 9718 on sexual offenses
based on age of victim), appeal granted, 121 A.3d 433 (Pa. 2015);
(Footnote Continued Next Page)


                                           -2-
J-S18015-16



court dismissed Appellant’s petition based on its unitimeliness. This pro se

appeal followed. Appellant raises these issues on appeal:

      1.     Did the Trial Court error [sic] in imposing the Mandatory
      Minimum because it incorrectly found that 18 PA C.S.A. §7508
      which permitted the Trial Court to find the Elements by a
      Preponderance of the evidence was severable from the rest of
      the statute deeming it unconstitutional. There was no meaningful
      difference between submitting the elements to the Jury and
      accepting a stipulation from the defendant since they both have
      a purpose of finding a method to impose a Mandatory Minimum
      sentence outside the Statutory framework, but consistent with
      Alleyne.

      2.   Did the Trial Court err in not sentencing Petitioner to the
      Aggregate Amount of Drugs involved in his case instead of the 5
      sentences he was sentenced to consecutively and should the
      Compulsory Joinder Rule be used to sentence the Petitioner.

      3.    Did the Trial Court err in giving the Defendant an
      Excessive Sentence and fine for the amount of drugs involved in
      his case.

Appellant’s brief at 6.

      Initially, we note that our “standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before

                       _______________________
(Footnote Continued)

Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014) (holding
mandatory minimum imposed when defendant visibly possesses a firearm,
42 Pa.C.S. § 9712, invalid under Alleyne); Commonwealth v. Newman,
99 A.3d 86 (Pa.Super. 2014) (ruling mandatory minimum sentences for
certain drug offenses committed with a firearm imposed by 42 Pa.C.S. §
9712.1 unconstitutional).



                                            -3-
J-S18015-16



we proceed to the merits of Appellant’s contentions, we must determine

whether Appellant’s March 2, 2015 PCRA petition was timely filed as that

issue implicates our jurisdiction. Commonwealth v. Miller, 102 A.3d 988

(Pa.Super. 2014). If a PCRA petition is untimely, “neither this Court nor the

trial court has jurisdiction over    the   petition.”   Id.   at 992   (quoting

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014)); see also

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006).

     Any PCRA petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final” unless an

exception to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1).

Accordingly, we must ascertain when Appellant’s judgment of sentence

became final. “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.” 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not

file a petition for allowance of appeal, Appellant’s sentence became final on

September 11, 2002, thirty days after our August 12, 2002 affirmance on

direct appeal. Appellant had until September 11, 2003, to file a timely PCRA

petition, and the present December 31, 2014 petition is untimely by over

eleven years.

     There are three exceptions to the one-year time bar of § 9545:




                                    -4-
J-S18015-16



      (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 invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

     Herein Appellant claims that his PCRA petition is timely based on

“Newly Discovered Evidence based on the Constitutionality of his Mandatory

Sentences.” Appellant’s brief at 8. He then attempts to gain review of his

remaining two sentencing claims by bootstrapping them onto the supposed

timeliness of his Alleyne position.    However, “Our Courts have expressly

rejected the notion that judicial decisions can be considered newly-

discovered facts which would invoke the protections afforded by section

9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.Super.

2013) (citing Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011)

(“section 9545(b)(1)(ii) applies only if the petitioner has uncovered facts

that could not have been ascertained through due diligence, and judicial



                                      -5-
J-S18015-16



determinations are not facts”); Commonwealth v. Brandon, 51 A.3d 231,

235 (Pa.Super. 2012) (same)).       Thus, Alleyne and the new Pennsylvania

case law examining the constitutionality of various mandatory minimum

sentencing provisions in this Commonwealth do not constitute newly-

discovered facts so as to fall within the parameters of § 9545(b)(1)(i).

      We further observe that we have held specifically that, since Alleyne

has not been held to be retroactive by either our Supreme Court or the

United States Supreme Court, it does not fall within the newly-recognized

constitutional right exception to § 9545(b)(1). Miller, supra.

      Having determined that the present PCRA petition was untimely, we

affirm the denial of PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




                                     -6-
