J. S15044/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                 v.                   :
                                      :
DARRYL H. DICKSON,                    :         No. 1826 EDA 2017
                                      :
                      Appellant       :


                Appeal from the PCRA Order, May 16, 2017,
           in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-020501-1983


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED APRIL 24, 2018

     Appellant, Darryl Dickson, appeals pro se, from the May 16, 2017

order dismissing his second petition under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.

     The PCRA court provided the following procedural history:

           On September 8, 1983, [appellant] pled guilty to
           murder generally, criminal conspiracy, robbery, and
           possessing an instrument of crime before the
           Honorable Juanita Kidd Stout. Judge Stout found
           [appellant] guilty of second degree murder and
           sentenced him to life imprisonment.         He was
           sentenced to an aggregate sentence of twelve and
           [one-]half (12½) to thirty (30) years for the lesser
           offenses. No direct appeal was filed.

           On February 24, 2004, [appellant] filed his first
           pro se [PCRA] petition. Counsel was appointed, and
           subsequently filed a Turner/[Finley] no-merit letter
           to the court.[Footnote 2] On November 30, 2004,
           the PCRA petition was dismissed. The Pennsylvania
J. S15044/18


            Superior Court affirmed the PCRA court’s decision on
            November 10, 2005.[Footnote 3] [Appellant] did not
            file a petition for allowance of appeal to the
            Pennsylvania Supreme Court.

                  [Footnote   2]   Commonwealth   v.
                  Turner, 544 A.2d 927 (Pa. 1988);
                  Commonwealth v. Finley, 550 A.2d
                  213 (Pa.Super. 1988) (en banc).

                  [Footnote  3]    Commonwealth   v.
                  Dickson, 890 A.2d 1097 (Pa.Super.
                  2005) (unpublished memorandum).

            The instant petition was filed on August 13, 2012,
            followed by several amended petitions dated
            March 11, 2016, March 22, 2016, and August 17,
            2016. Pursuant to Pa.R.Crim.P. 907, [the PCRA]
            court sent a notice of intent to dismiss the petition as
            untimely without exception on March 7, 2017.
            [Appellant] did not file a response to the 907 notice.
            [The PCRA] court formally dismissed the petition on
            May 16, 2017. [Appellant] timely filed a notice of
            appeal to the Pennsylvania Superior Court on June 6,
            2017.

PCRA court opinion, 7/25/17 at 1-2 (footnote 4 omitted). The PCRA court

did not order appellant to file a concise statement of errors pursuant to

Pa.R.A.P.   1925(b).    The   PCRA    court   filed   an   opinion   pursuant   to

Pa.R.A.P. 1925(a) on July 25, 2017.

      Appellant challenges the constitutionality of his sentence of life

imprisonment. (Appellant’s brief at 1.) Specifically, appellant maintains that

his sentence is unconstitutional pursuant to the Supreme Court of the United

States’ holdings in Miller v. Alabama, 567 U.S. 460 (2012); Alleyne v.




                                      -2-
J. S15044/18

United States, 570 U.S. 99 (2013); and Montgomery v. Louisiana, 136

S.Ct. 718 (2016). (See appellant’s brief in passim.)

      Having determined, after careful review, that the Honorable Tracy

Brandeis-Roman, in her Rule 1925(a) opinion of July 25, 2017, ably and

comprehensively disposes of appellant’s issues on appeal, with appropriate

references to the record and without legal error, we will affirm on the basis

of that opinion dismissing appellant’s serial PCRA petition as untimely.

Additionally, appellant was 21 years of age at the time of the offense.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/24/18




                                     -3-
0014_Opinion
                                                                                                                    Circulated 03/28/2018 03:11 PM




                       COURT OF COMMON PLEAS OF PHILADLEPHIA COUNTY
                            FIRST JUDICIAL DISTRICT OF PENNSYL VA.NIA
                                    CRIMINAL TRIAL DIVISION
               COMMONWEALTH OF
               PENNSYLVANIA

               v.
                                                                                                          CP-51-CR-0205701-1983
               DARRYL DICKSON                                                                                 1826 EDA 2017

                                                                      OPINION
               TRACY BRANDEIS-ROMAN, J.                                                                    Date: July 25, 2017

                      This appeal comes before the Superior Court following the dismissal of a Post Conviction

               Relief Act ("PCRA")1 petition filed on August 13, 2012. On May 16, 2017, the lower court

               dismissed the PCRA petition and supplemental filings for the reasons set forth below.

               I.     PROCEDURAL HISTORY

                      On September 8, 1983, Petitioner pied guilty to murder generally, criminal conspiracy,

               robbery, and possessing an instrument of crime before the Honorable Juanita Kidd Stout. Judge

               Stout found Petitioner guilty of second degree murder and sentenced him to life imprisonment. He

               was sentenced to an aggregate sentence of twelve and half ( 12 Y2 ) to thirty (30) years for the lesser

               offenses. No direct appeal was filed.

                      On February 24, 2004, Petitioner filed his first pro se Post Conviction Relief Act petition.

               Counsel was appointed, and subsequently filed a Turner/Finely no-merit letter to the court.2 On

               November 30, 2004, the PCRA petition was dismissed. The Pennsylvania Superior Court affirmed

               the PCRA court's decision on November 10, 2005.3 Petitioner did not file a petition for allowance

               of appeal to the Pennsylvania Supreme Court.



               1   42 Pa. Cons. Stat. §§ 9541-9546.
               2
                   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
               bane).                                                                                   ,..-
               3 Commonwealth v. Dickson, 890 A.2d I 097 (Pa. Super. 2005)(unpublis,?_e,d memorandum)-;    CP�51-CR-0205701·1�p�n�o�mm. v. Dickson, Darryl

                                                                                          :".
                                                                             1

                                                                                                                        111111 111111111
                                                                                                                            7979129671
.-


          The instant petition was filed on August 13, 2012, followed by several amended petitions

     dated March 11, 2016, March 22, 2016, and August 17, 2016. Pursuant to Pa.R.Crim.P. 907, this

     court sent a notice of intent to dismiss the petition as untimely without exception on March 7,

     2017. Petitioner did not filea response to the 907 notice. This court formally dismissed the petition

     on May 16, 2017.4 Petitioner timely filed a notice of appeal to the Pennsylvania Superior Court on

     June 6, 2017.

     II. DISCUSSION

          Petitioner's PCRA petition challenging the constitutionality of his sentence was facially

     untimely. As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional requisite.

     Commonwealth v. Robinson, 12 A.3d 4 77 (Pa. Super. 2011 ). A PCRA petition, including a second

     or subsequent petition, shall be filed within one year of the date the underlying judgment becomes

     final. 42 Pa. Cons. Stat. §9545(b )(I). A judgment is deemed 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." Id. § 9545(b)(3).

          Petitioner's judgment of sentence became final for PCRA purposes on or about October 8,

     1983, thirty (30) days after the time period for filing an appeal in the Pennsylvania Superior Court

     expired. Petitioner's prose petition, filed on August 13, 2012 was therefore untimely by over

     twenty-eight (28) years. See 42 Pa. Cons. Stat. § 9545(b )(1 ).

          The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited

     circumstances under which the late filing of a petition will be excused. Id. § 9545(b )(I ).To invoke

     an exception, a petition must allege and Petitioner must prove:




     4
      The order was issued more than twenty days after Petitioner was served with notice of the forthcoming dismissal of
     his Post-Conviction Relief Act petition. Pa.R.Crim.P. 907.

                                                             2
        (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.

Id § 9545(b)(1 )(i)-(iii).

     In an attempt to invoke the newly recognized constitutional right exception, Petitioner argued

that he was eligible for relief in accordance with the United States Supreme Court decision in

Miller v. Alabama, 132 S. Ct. 2455 (2012). In his amended petitions, he stated the United States

Supreme decision in Montgomery v. Louisiana, I 36 S. Ct. 7 I 8 (2016) afforded him relief because

it rendered the holding in Alleyne v. United States, I 33 S. Ct. 2 I 5 I (2013) retroactive. Petitioner

was incorrect in his assessments.

     The Supreme Court of the United States held that mandatory life sentences without parole for

juvenile offenders convicted of murder violated the      gth   Amendment's prohibition on cruel and

unusual punishment. See Miller, 132 S. Ct. at 2460(2012) ("We therefore hold that mandatory life

without parole for those under the age of 18 at the time of their crimes violates the Eighth

Amendment's prohibition on 'cruel and unusual punishments."). The United States later held in

Montgomery that this constitutional right was to be applied retroactively to cases on collateral

review. However, those petitioning for relief under either case must have been "under the age of

eighteen (18) at the time of their offense in order to be eligible for relief. Here, Petitioner fully

admits in his petition that he was twenty-one (21) years old at the time of his offense, thus making

him ineligible for relief. PCRA Petition, 3/22/16 at 19.

     Moreover, Petitioner was not eligible for relief under Alleyne. The United States Supreme
                                                  3
.. . .   .
             Court in Alleyne held "[M]andatory minimum sentences increase the penalty for a crime, any fact

             that increases the mandatory minimum is an 'element' that must be submitted to the jury." Alleyne,

             133 S. Ct. at 2153. While the United States Supreme Court was silent on the retroactivity of

             Alleyne, the Pennsylvania Supreme Court has unequivocally held that the decision in Alleyne did

             not apply retroactively to collateral attacks on mandatory minimum sentences advanced in post

             conviction relief proceedings. See Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016)

             (addressing the retroactivity of Alleyne).

                 With regard to Montgomery, its decision was carefully limited to only giving the Miller

             decision retroactive effect. The Montgomery holding specifically addressed juvenile offenders

             convicted of homicide, and sentenced to life imprisonment without parole. In this instance,

             Petitioner was not a juvenile at the time of his offense. Therefore, the decision in Montgomery

             neither applied to his case, nor was it applicable to the Alleyne decision.

             III. CONCLUSION

                 This court has evaluated Petitioner's untimely filings and determined them to be without

             exception. Petitioner failed to satisfy his burden of establishing an exception to the PCRA's

             statutory time bar. Accordingly, for the reasons stated herein, the decision of the court dismissing

             the PCRA petition should be affirmed.

                                                                   BY THE COURT:




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