J-S37013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARNELL TOLLIVER
Appellant No. 879 WDA 2015
Appeal from the PCRA Order May 18, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001679-2006
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED APRIL 28, 2016
Appellant, Darnell Tolliver, appeals pro se from the order entered in
the Allegheny County Court of Common Pleas, which denied his untimely
second petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On October 4, 2007, the court convicted Appellant
of one count of voluntary manslaughter and three counts of aggravated
assault. The court sentenced Appellant on December 18, 2007, to an
aggregate term of 10-20 years’ imprisonment. Appellant’s sentence
included the mandatory minimum per 42 Pa.C.S.A. § 9712 (requiring
mandatory minimum 5-year sentence for defendant convicted of crime of
violence where defendant visibly possessed firearm that placed victim in
reasonable fear of death or serious bodily injury). This Court affirmed the
judgment of sentence on December 22, 2009, and our Supreme Court
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denied allowance of appeal on September 28, 2010. See Commonwealth
v. Tolliver, 990 A.2d 56 (Pa.Super. 2009), appeal denied, 608 Pa. 640, 9
A.3d 630 (2010). On February 8, 2011, Appellant timely filed a pro se PCRA
petition. The court appointed counsel, who subsequently filed a motion to
withdraw due to a conflict of interest. After the court appointed new PCRA
counsel, counsel filed a petition to withdraw and accompanying “no-merit”
letter on July 5, 2011.1 On July 12, 2011, the court permitted counsel to
withdraw. Appellant filed an amended pro se PCRA petition on January 24,
2012. The court issued appropriate notice per Pa.R.Crim.P. 907 on January
18, 2013, and denied the petition on February 19, 2013. On April 6, 2015,
Appellant filed the current PCRA petition seeking relief under Alleyne v.
United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)
(holding any fact increasing mandatory minimum sentence for crime is
considered element of crime to be submitted to fact-finder and found beyond
reasonable doubt). The court issued Rule 907 notice on April 13, 2015, and
Appellant filed a pro se response on April 28, 2015. On May 18, 2015, the
court denied Appellant’s petition as untimely. Appellant timely filed a notice
of appeal on June 3, 2015, and a voluntary Pa.R.A.P. 1925(b) statement.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,
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1
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
The statutory exceptions to the timeliness provisions of the PCRA allow for
very limited circumstances under which the late filing of a petition will be
excused; a petitioner asserting a timeliness exception must file a petition
within 60 days of the date the claim could have been presented. See 42
Pa.C.S.A. § 9545(b)(1-2). Instantly, Appellant’s judgment of sentence
became final on December 27, 2010, upon expiration of the time to file a
petition for writ of certiorari with the United States Supreme Court. See
U.S.Sup.Ct.R. 13. Appellant filed the current PCRA petition on April 6, 2015,
which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now
attempts to invoke the “new constitutional right” exception to the statutory
time bar per Section 9545(b)(1)(iii), insisting Alleyne and its progeny
declared unconstitutional the mandatory minimum sentencing statute under
which Appellant was sentenced. Nevertheless, the law on which Appellant
relies affords him no relief, where Appellant’s current PCRA petition is
untimely. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014)
(holding that even if Alleyne announced new constitutional right, neither
our Supreme Court nor United States Supreme Court has held that Alleyne
applies retroactively, which is fatal to appellant’s attempt to satisfy “new
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constitutional right” exception to timeliness requirements of PCRA). See
also Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (explaining
Alleyne does not invalidate illegal mandatory minimum sentence when
claim was presented in untimely PCRA petition). Thus, we affirm the denial
of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2016
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