Com. v. Johnson, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELWOOD JOHNSON
Appellant No. 1102 EDA 2016
Appeal from the PCRA Order March 29, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009065-2006
BEFORE: FORD ELLIOT, P. J. E., STEVENS, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J. FILED OCTOBER 11, 2016
Appellant, Elwood Johnson, appeals from the March 16, 2016 order
denying, as untimely, his sixth petition filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On November 21, 2008, a jury convicted Appellant of one count of
possession of with intent to deliver at least 100 grams of cocaine, two
counts of possession of a controlled substance, two counts of criminal use of
a communications facility, one count of criminal conspiracy, one count of
dealing in proceeds of unlawful activities, and two counts of corrupt
organizations.1
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1
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 7512, §
903, § 5111(a), and § 911(b), respectively.
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On February 5, 2009, the trial court sentenced Appellant to an
aggregate term of sixteen and one-half to thirty-three years’ imprisonment,
which included a seven year mandatory minimum sentence pursuant to
statute. See PCRA Court Opinion, 4/25/16, at 1-2; see also 18 Pa.C.S. §
7508(3)(iii) (directing a mandatory minimum sentence of at least seven
years’ incarceration where the weight of the substance possessed is at least
100 grams and defendant was previously convicted of another drug
trafficking offense).
Appellant timely filed a notice of appeal with this Court, challenging
the weight and sufficiency of the evidence, and the trial court’s denial of his
motion to suppress evidence. On August 6, 2010, this Court affirmed
Appellant’s judgment of sentence, and the Pennsylvania Supreme Court
denied his subsequent petition for allowance of appeal on March 9, 2011.
See Commonwealth v. Johnson, 11 A.3d 1014 (Pa. Super. 2010)
(unpublished memorandum), appeal denied, 20 A.3d 485 (Pa. 2011)
(unpublished memorandum).
Appellant has since filed numerous petitions, including several while
review was still outstanding, seeking collateral relief. He filed his first
petition on April 29, 2011. Appointed counsel submitted a Turney/Finley “no
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merit” letter.2 The PCRA court granted counsel’s petition to withdraw and
sent Appellant notice that his petition would be dismissed without a hearing.
The PCRA court then dismissed his petition. Appellant appealed to this Court,
which remanded for reappointment of PCRA counsel and an evidentiary
hearing. The petition was ultimately dismissed by the PCRA court on May
31, 2013. Appellant did not file an appeal.
Appellant’s second and third petitions, filed during the pendency of the
litigation of his first PCRA, were dismissed as premature. His fourth petition
was filed July 18, 2013 and dismissed by the PCRA court, after proper
notice, without a hearing. This Court denied his subsequent appeal on
October 22, 2014. See Commonwealth v. Johnson, 108 A.3d 120 (Pa.
Super. 2014) (unpublished memorandum). Appellant’s fifth PCRA was
dismissed, after proper notice, on September 9, 2015. This Court dismissed
his appeal per curiam on January 8, 2016, for failure to file an appellate
brief.
On February 19, 2016, Appellant filed the instant petition, contending
his sentence was illegal pursuant to Alleyne v. United States, 133 S. Ct.
2151 (2013). On March 3, 2016, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition without a hearing.
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2
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998);
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
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Appellant filed a response, but on March 29, 2016, the court dismissed
Appellant’s petition as untimely.
Appellant timely filed a notice of appeal and submitted a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA
court issued a responsive opinion April 25, 2016.
Herein, Appellant presents one issue for our review:
1. Did the United States Supreme Court decision in
Montgomery v. Louisiana, 136 S. Ct. 718 (2016) establish all
substantive constitution [sic] new rule a constitutional right to
retroactivity and gives state courts jurisdiction to hear
Appellant’s Alleyne challenge on collateral review under 42
Pa.C.S. § 9545(b)(1)(iii) and did Appellant file in a timely
manner under the time requirement of 42 Pa.C.S. § 9545(b)(2)?
Appellant’s Brief at 1 (unnecessary capitalization and emphasis omitted).
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:
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(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 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).
Appellant acknowledges that his 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 8 (citing 42
Pa.C.S. § 9545(b)(1)(iii)).
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3
Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on June 7, 2011, at the expiration of the ninety-day time
period for seeking review with the United States Supreme Court. See 42
Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)
(noting that Sup.Ct.R. 13 grants an Appellant ninety days to seek review
with the United States Supreme Court). Thus, Appellant had until June 6,
2012, to timely file a petition. Appellant filed his current petition on February
19, 2016.
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According to Appellant, the sentence imposed upon him is illegal
pursuant to a newly-recognized constitutional rule. See Appellant’s Brief at
8, 10 (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 new rule must be applied retroactively, thus entitling
him to collateral relief. Id. at 10-11 (citing in support Montgomery v.
Louisiana, 136 S. Ct. 718 (2016)).
Appellant’s reliance upon Montgomery to establish the retroactive
applicability of Alleyne is misplaced. In Montgomery, the United States
Supreme Court recognized that state collateral review courts must give
retroactive effect to a new, substantive rule of constitutional law.
Montgomery, 136 S. Ct. at 729. However, the Pennsylvania Supreme
Court has recently determined that the rule announced in Alleyne was
neither a substantive nor a “watershed” procedural rule and, therefore, did
not apply retroactively to cases pending on collateral review.
Commonwealth v. Washington, --- A.3d ---, at *8 (Pa. 2016), see also
Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015)
(same).
Appellant’s petition is untimely, and he has not satisfied a timeliness
exception to the requirements of the PCRA. Consequently, the PCRA court
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was without jurisdiction to review the merits of Appellant’s claim, and
properly dismissed his petition. See Ragan, 932 A.2d at 1170.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2016
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