J-S44024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GREGORY WILLIAM DEYOUNG,

                         Appellant                  No. 3490 EDA 2016


                Appeal from the PCRA Order August 18, 2016
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0001158-2003


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                             Filed August 4, 2017

      Appellant, Gregory William DeYoung, appeals pro se from the order

denying his second petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. On appeal, Appellant argues that the

recent holding by the United States Supreme Court in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), causes Alleyne v. U.S., 133 S. Ct. 2151

(2013), to be retroactively applicable to his case. We affirm.

      The facts and procedural history are as follows: On December 16,

2002, Detective Victor J. Tunis of the Bristol Township Police Department

responded to a call from the Villager Lodge in Bristol Township, Pennsylvania

regarding a potential homicide in Motel Room 124. N.T., 11/8/04, at 54–55.

Detective Tunis observed a white male, later identified as John George (“the

decedent”), lying on his back with severe trauma to his face.     Id. at 55.
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Detective Tunis noticed blood on the bed, curtains, carpet, ceiling, and walls,

and down the outdoor hallway leading to the First Spanish Assembly of God

Church.   Id.    Surveillance video from the Villager Lodge recorded on

December 15, 2002, revealed that at or around 5:02 a.m., two individuals

exited Motel Room 124 and walked towards the First Spanish Assembly of

God Church. Id. at 55, 198–199.

      Also on December 15, 2002, Appellant went to the emergency room at

Capital Health System, Mercer Campus in Trenton, New Jersey.              N.T.,

11/10/04, at 198.    He was admitted with a traumatic injury to the right

forearm and was taken to the operating room for reconstructive surgery.

Id. at 199.     The treating doctor noted that Appellant’s wounds were

consistent with knife and gunshot wounds. Id. at 201.

      Forensic pathologist Ian Hood, M.D., performed an autopsy of the

decedent that revealed over fifty blunt-force and stab wounds.            N.T.,

11/9/04, at 53. The cause of death was hemorrhagic shock due to the lack

of blood volume from all of the decedent’s injuries. Id. at 74. The manner

of death was ruled a homicide. Id. at 86–87.

      On December 18, 2002, police executed a search warrant at 924 Olsen

Avenue in Yardley, Pennsylvania, where Appellant and co-defendant, Edward

Boback, were residing. N.T., 11/8/04, at 207, 220. The police recovered a

semi-automatic weapon, which was later identified as the firearm that

discharged a bullet found by Detective Tunis in the motel room. Id. at 111,


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123. On the corner diagonal from the Olsen Avenue house, police officers

discovered a red Ford Ranger pickup truck, in which they observed blood

stains on the steering wheel and front seats.    N.T., 11/8/04, at 201–202.

Tire tracks and bloody leaves found at the First Spanish Assembly of God

Church were consistent with the tires of the Ford Ranger and the blood

found therein.     Id. at 139–140.     The blood from inside the truck was

consistent with a mixture of DNA, and the blood sample from Appellant could

not be excluded as a contributor. N.T., 11/12/04, at 21, 24.     Appellant’s

DNA matched the blood sample from the sidewalk at the motel and a sample

from the motel bedspread. Id. at 24, 26.

     On December 19, 2002, Appellant was arrested and interviewed by

Detective Timothy Fuhrmann and Detective Timothy Carroll. N.T., 11/10/04,

at 184; N.T., 11/12/04, at 64.       Appellant admitted to selling drugs and

stated that the decedent was a regular customer who purchased $100–$200

worth of drugs daily.     N.T., 11/10/04, at 184; N.T., 11/12/04, at 64.

Appellant alleged that the decedent wanted to invest in Appellant’s drug

dealing business, so the decedent gave Appellant $4,000 to purchase and

sell powdered cocaine. N.T., 11/10/04, at 175. Appellant stated that the

decedent then took one-half of that cocaine but still expected repayment of

the full $4,000.    N.T., 11/12/04, at 70.     On December 12, 2002, the

decedent ordered Appellant to pay at least $1,000 of the money owed or he




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would kill Appellant and everyone at the Olsen Avenue house. Id. at 104,

125.

        Appellant admitted to striking the decedent but claimed that he never

stabbed the decedent. N.T., 11/12/04, at 116, 127. According to Appellant,

co-defendant Boback possessed the gun, brass knuckles, and knife used to

kill the decedent. Id. at 113, 126. Appellant stated that when he tried to

separate Boback and the decedent, he was accidentally cut and shot in the

finger by Boback.       N.T., 11/10/04, at 114. Appellant admitted that after

leaving the motel, he “hoped [the decedent] was dead.” Id. at 153.

        Appellant was charged with first-degree murder, second-degree

murder, burglary, conspiracy, and weapons violations in relation to the

killing of the decedent. A jury trial commenced on October 29, 2004, and on

November 15, 2004, the jury convicted Appellant of first-degree murder,

burglary, possession of an instrument of a crime, and conspiracy.1        On

November 16, 2004, the trial court found Appellant guilty of person (former

convict) not to possess a firearm and conspiracy to commit that offense. 2

On November 17, 2004, following a penalty-phase hearing, the jury entered

a verdict of life imprisonment.



____________________________________________


1
    18 Pa.C.S. §§ 2502(a), 3502(a), 907(a), and 903(a), respectively.
2
    18 Pa.C.S. §§ 6105(a) and 903.



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      On December 8, 2004, the trial court formally sentenced Appellant to

life imprisonment and a concurrent aggregate sentence of not less than four

years nor more than eight years of incarceration on the remaining

convictions.   On December 20, 2004, Appellant filed timely post-sentence

motions, alleging various claims of trial court error and ineffective assistance

of counsel.    At the conclusion of evidentiary hearings on September 16,

2005, and September 23, 2005, the trial court denied Appellant’s post-

sentence motions.

      Appellant then filed a direct appeal to this Court.         We affirmed

Appellant’s judgment of sentence. Commonwealth v. DeYoung, 918 A.2d

784, 2699 EDA 2005 (Pa. Super. filed December 13, 2006) (unpublished

memorandum).      Appellant did not file a timely petition for allowance of

appeal to the Pennsylvania Supreme Court. Appellant’s subsequent request

to file such a petition nunc pro tunc on January 25, 2007, was denied by the

Supreme Court.      Commonwealth v. DeYoung, 10 MM 2007 (Pa. filed

March 8, 2007).

      On November 30, 2007, Appellant filed his first PCRA petition.

Counsel was appointed to represent him, and hearings were held on March

2, 2011, May 2, 2011, and June 13, 2011.         On December 16, 2011, the

PCRA court denied Appellant’s first PCRA petition. On September 17, 2013,

this Court affirmed the denial of PCRA relief. Commonwealth v. DeYoung,




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87 A.3d 383, 320 EDA 2012 (Pa. Super. filed September 17, 2013)

(unpublished memorandum).

        On March 25, 2016, Appellant filed the instant second PCRA petition

(“Petition”) asserting that imposition of his mandatory minimum life

sentence was illegal and unconstitutional pursuant to Alleyne.       Further,

Appellant claimed that Alleyne should be applied retroactively because of

the holding in Montgomery. The PCRA court issued a Notice of Intent to

Dismiss Appellant’s Petition pursuant to Pa.R.Crim.P. 907. Notice of Intent

to Dismiss, 7/27/16.

        The PCRA court dismissed the Petition on August 18, 2016, as

untimely.    Appellant filed a notice of appeal to this Court on October 31,

2016.     Because the notice of appeal was dated August 25, 2016, and

postmarked September 7, 2016, the PCRA court treated the notice of appeal

as timely and attributed the delay to a breakdown of the court system.

PCRA Court Opinion, 2/28/17, at 6.        Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

        Appellant raises the following issue on appeal:

        I. Whether the lower court erred in finding [Appellant’s] PCRA
        [petition] as untimely where the United States Supreme Court in
        Montgomery v. Louisiana held that any cases out of their
        Court that were substantive in nature were retroactively
        applicable to all the States and in doing so caused Alleyne v.
        U.S. to become retroactively applicable to the [Appellant].




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Appellant’s Brief at 1.3

       In reviewing the denial of PCRA relief, this Court must examine

whether the PCRA court’s determination is “supported by the record and free

of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). If

a PCRA court’s credibility determinations are supported by the record, the

determinations are binding. Commonwealth v. Robinson, 139 A.3d 178,

185    (Pa.   2016).       This   Court    reviews   questions   of   law   de   novo.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

Timeliness is a question of law, and thus, it must be reviewed de novo. Id.

       Appellant first argues that his petition cannot be barred as untimely

because it would result in an illegal sentence.         Appellant’s Brief at 2.    He

contends that, because “Alleyne goes directly to the legality of the

sentence,” the issue cannot be waived. Id. We disagree.

       Under Pennsylvania law, neither this Court nor the PCRA court has

jurisdiction over an untimely PCRA petition.          Commonwealth v. Seskey,

86 A.3d 237, 241 (Pa. Super. 2014).              Although legality of sentence is

subject to PCRA review, claims must still first satisfy the PCRA time limits or

one of the exceptions in order for a court to have jurisdiction.             Pace v.

DiGuglielmo, 125 S.Ct. 1807, 1808 (2005).                  Any petition for post-

____________________________________________


3
  We remind Appellant that according to Pa.R.A.P. 124(a)(4), all papers filed
in an appellate court shall be “no smaller than 14 point in the text and 12
point in the footnotes. . . .”



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conviction relief “shall be filed within one year of the date the judgment

becomes final,” unless one of the exceptions applies.4            Any petition

attempting to invoke one of the exceptions “shall be filed within 60 days of

the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

To be entitled to the exceptions to the one-year filing requirement, “the

petitioner must plead and prove specific facts that demonstrate his claim

was raised within the sixty-day time frame” pursuant to § 9545(b)(2).

Commonwealth v. Hernandez, 79 A.3d 649, 652 (Pa. Super 2013)

(quoting Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super.

2001)). A judgment becomes final at the conclusion of direct review or the

expiration of the time for seeking the review. 42 Pa.C.S. § 9545(b)(3).


____________________________________________


4
    The exceptions to the timeliness requirement are:

        (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), (ii), and (iii).



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      Here, Appellant’s judgment of sentence became final on January 12,

2007, the date by which he could have filed a timely petition to the

Pennsylvania Supreme Court. Appellant did not file the Petition until March

25, 2016, eight years after the jurisdictional time limit.          Therefore,

Appellant’s petition is untimely on its face.

      Appellant claims that the Petition falls within the third exception under

42 Pa.C.S. § 9545(b)(1)(iii), in that his conviction violated a new

constitutional right that should be applied retroactively. Appellant’s Brief at

2.   This exception requires a petitioner to prove two elements.     First, the

new constitutional right asserted must be “recognized by the Supreme Court

of the United States or the Supreme Court of Pennsylvania” after the time

provided in the PCRA. 42 Pa.C.S. § 9545(b)(1)(iii). Second, the right must

have “been held by that court to apply retroactively.” Id.

      Appellant asserts that a new constitutional right was recognized by the

United States Supreme Court in Alleyne and that it must be applied

retroactively to his case, pursuant to Montgomery. Appellant’s Brief at 2.

Montgomery was decided on January 25, 2016, and Appellant filed the

Petition on March 25, 2016.         Thus, Appellant’s Petition invoking this

exception was properly filed within sixty days of the Montgomery decision.

Nonetheless, the PCRA court concluded that the mandatory minimum

sentence “does not run afoul” of the rule created in Alleyne because the

facts that increased the mandatory minimum sentence were submitted to


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the jury and proven beyond a reasonable doubt; thus, it is not applicable to

Appellant’s case.      PCRA Court Opinion, 2/28/17, at 9.               The PCRA court

further concluded Appellant’s issue lacks merit because Alleyne is not be

applied retroactively on state collateral review. Id. We agree.

       In Alleyne, the United States Supreme Court held that any fact that

increases a mandatory minimum criminal penalty must be proven beyond a

reasonable doubt as an element of the offense, and it must be submitted to

the jury.     Alleyne, 133 S.Ct. at 2155; see, e.g., Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015) (affirming the unconstitutionality of 18

Pa.C.S. § 6317, which imposes mandatory minimum sentencing for

controlled substance crimes occurring near a school zone, as determined by

Alleyne).5 In the case before us, the mandatory minimum sentence is not

in violation of the holding in Alleyne.              All facts required to prove a first-

degree murder conviction and its corresponding mandatory minimum

sentence of life imprisonment were presented to the jury. As the PCRA court

explained, the jury heard the evidence and determined that the prosecution

satisfied   the   necessary     elements       for    first-degree   murder   beyond   a

reasonable doubt. PCRA Court Opinion, 2/28/17, at 9.


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5
  The Alleyne ruling was an extension of the holding in Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), which held that a jury must find any fact
that imposes a penalty beyond the mandatory maximum.




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       Moreover, even if Alleyne was applicable, Appellant’s issue would lack

merit because our Supreme Court has explicitly held that Alleyne is not to

be given retroactive effect on collateral review.         Commonwealth v.

Washington, 142 A.3d 810, 819–820 (Pa. 2016). Montgomery does not

negate Washington. Montgomery’s holding that Miller v. Alabama, 132

S.Ct. 2455 (2012), i.e., that mandatory life sentences without parole for

juvenile offenders are unconstitutional, is to be applied retroactively to cases

on collateral review is limited to juvenile offenders.     Montgomery, 136

S.Ct. at 724. Appellant was not a minor at the time of the crime.6

       In conclusion, Appellant’s PCRA petition is untimely, and the third

exception asserted by Appellant does not apply.         Thus, the PCRA court

properly dismissed the Petition and denied relief based on its lack of

jurisdiction.     See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.

Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely

petition).      Likewise, we lack the authority to address the merits of any
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6
  Appellant additionally relies on Welch v. United States, 136 S.Ct. 1257
(2016), wherein the United States Supreme Court announced that its
holding in Johnson v. United States, 135 S.Ct. 1221 (2016), is retroactive
on collateral review. In Johnson, the Court held that imposing an increased
sentence under the Armed Career Criminal Act (“the Act”) violated due
process principles because the definition of prior “violent felony” in the
residual clause of the Act was unconstitutionally vague. Johnson, 135 S.Ct.
at 2557. Appellant’s reliance on Welch is also misplaced. The Welch Court
did not assess the retroactively of Alleyne, and Appellant’s claim does not
involve an increased sentence under the Act. As such, Welch does not
trigger the third timeliness exception pursuant to 42 Pa.C.S. §
9545(b)(1)(iii).



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substantive claims raised in the Petition. See Commonwealth v. Bennett,

930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s

right or competency to adjudicate a controversy.”).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2017




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