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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHAWN CONLEY,
Appellant No. 1917 WDA 2014
Appeal from the PCRA Order September 22, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004013-1994
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 26, 2016
Shawn Conley appeals from the September 22, 2014 order denying
him PCRA relief. We affirm.
On November 6, 1995, Appellant was convicted by a jury of robbery,
aggravated assault, a firearms violation, and conspiracy in connection with a
crime that occurred on October 21, 1993, in which John Napper was the
victim. Appellant and Carlos Colton were tried together while a third co-
conspirator, Sedrick Boyd received a separate trial. Mr. Napper reported
that Appellant, Colton, and Boyd forced him into a car at gunpoint and stole
items from him. Mr. Napper started to climb through an open window to
escape when the three assailants shot him in the stomach and legs as his
*
Retired Senior Judge assigned to the Superior Court.
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body was hanging over the window. Mr. Napper fell to the ground, and the
cohorts ran over him with the car at least twice before speeding away.
Garreth Davis, a constable, testified that he saw Mr. Napper
attempting to exit the car through the window and that Appellant, whom Mr.
Davis was able to identify, was pulling the victim back into the vehicle. Mr.
Davis heard the gunshots, saw Mr. Napper fall to the ground, and witnessed
the car driving over him. Mr. Davis pursued Appellant and his fellow
cohorts. Their car came to stop due to a collision with another vehicle, and
Appellant exited it, pointed a gun at Mr. Davis, and fled.
The case proceeded to sentencing immediately after the jury returned
its verdict. The court had the benefit of a presentence report, which
indicated that Appellant was affiliated with the Crips gang. Based partially
on this gang connection, the trial court elected to “sentence [Appellant]
outside of the guidelines” and imposed consecutive sentences on each
offense. Appellant was imprisoned for twenty-seven and one-half to fifty-
four years. After Appellant’s appellate rights were reinstated, we affirmed
on January 26, 1998, Commonwealth v. Conley, 711 A.2d 1038
(Pa.Super. 1998) (unpublished memorandum), and no further direct review
was sought.
Appellant filed a timely PCRA petition, and, after counsel was
appointed, counsel filed an amended petition. The court denied relief
without a hearing, and on appeal, we remanded for the court to more
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thoroughly review Appellant’s claims. Commonwealth v. Conley, 809 A.2d
954 (Pa.Super. 2002) (unpublished memorandum). After the court prepared
another opinion, we affirmed. Commonwealth v. Conley, 875 A.2d 384
(Pa.Super. 2005) (unpublished memorandum), appeal denied, 885 A.2d 532
(Pa. 2005). Appellant filed a second PCRA petition, which was dismissed,
and his appeal from that ruling also was dismissed due to Appellant’s failure
to provide this Court with a docketing statement.
In the meantime, at a different action number, 13631-1998, Appellant
pled guilty to third-degree murder on January 31, 2000, based upon his
involvement in the November 5, 1993 murder of Troy Miller. Appellant
received a term of imprisonment of ten to twenty years imprisonment, which
was imposed consecutively to the sentence that Appellant received herein.
Appellant did not appeal that judgment of sentence. On July 27, 2012,
Appellant filed a joint PCRA petition at both action numbers. Counsel was
appointed, but successfully moved to withdraw. On February 20, 2014, we
affirmed the dismissal of that joint PCRA petition. Commonwealth v.
Conley, 97 A.3d 808 (Pa.Super. 2014) (unpublished memorandum).
The PCRA petition at issue in this appeal was filed on July 15, 2014
and dismissed on September 22, 2014. Appellant raises two averments: “I.
Whether the defendant’s sentence is unconstitutional? II. Whether the
defendant deserves new proceedings to present his duress defense? (This
argument has been waived by the defendant).” Appellant concedes that the
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second issue is waived; his first contention pertains to Alleyne v. United
States, 133 S.Ct. 2151 (2013). In Alleyne, the Supreme Court held that
any fact, other than a prior conviction, that results in the application of a
mandatory minimum sentence must be submitted to the jury and found
beyond a reasonable doubt.
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
we proceed to the merits of Appellant’s contention that his sentence was
rendered illegal under Alleyne, we must determine whether Appellant’s July
15, 2014 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 Commonwealth v.
Chester, 895 A.2d 520 (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 determine when Appellant’s judgment of sentence
became final. “A judgment becomes final at the conclusion of direct review,
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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, his sentence became final on February
25, 1998, thirty days after our January 26, 1998 affirmance on direct
appeal. Appellant had until February 25, 1999, to file a timely PCRA
petition, and the present July 15, 2014 petition is patently untimely. There
are three exceptions to the one-year time bar of § 9545:
(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 invokes the after recognized constitutional right
exception. He acknowledges that in Commonwealth v. Miller, supra, we
held specifically that, since Alleyne has not been held to be retroactive by
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either our Supreme Court or the United States Supreme Court, it does not
fall within the parameters of the recently-recognized constitutional right
exception to § 9545(b)(1). Miller, supra. Appellant asks that we hold his
case in abeyance until Miller is re-visited by the Pennsylvania Supreme
Court or the United States Supreme Court. Miller is controlling case
authority, and this panel is bound to follow it. Allowance of appeal was
denied in the Miller case, Commonwealth v. Miller, 947 A.2d 736 (Pa.
2008), and there is no basis upon which to delay resolution of this matter.1
As the present PCRA petition was untimely filed, relief was properly denied.
Order affirmed.
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1
We also note that there is a problem with Appellant’s reliance upon
Alleyne. Appellant was not sentenced under a mandatory minimum
sentencing provision. Appellant suggests that the fact that he was a
member of the Crips gang, impacted on the trial court’s decision to sentence
him to the statutory maximum; had to be submitted to a jury and proven
beyond a reasonable doubt under Alleyne. Appellant’s position in this
respect is misguided. We have ruled, “The parameters of Alleyne are
limited to the imposition of mandatory minimum sentences, i.e., where a
legislature has prescribed a mandatory baseline sentence that a trial court
must apply if certain conditions are met.” Commonwealth v. Ali, 112 A.3d
1210, 1226 (Pa.Super. 2015), appeal granted on other grounds, 2015 WL
7763727 (Pa. Dec. 2, 2015). Appellant was not sentenced based upon
application of a mandatory minimum sentencing provision and cannot invoke
Alleyne in the first instance.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2016
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