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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DONTAY RAYSHAW BREWER,
Appellant No. 3084 EDA 2015
Appeal from the PCRA Order October 2, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009340-2009
BEFORE: BOWES, MUNDY AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 21, 2016
Dontay Rayshaw Brewer appeals from the October 2, 2015 order
dismissing his second PCRA petition as untimely filed. We affirm.
In January 2011, a jury convicted Appellant of corrupt organizations,
conspiracy to commit corrupt organizations, six counts of delivery of a
controlled substance, four counts of possession of a controlled substance,
conspiracy to violate the Controlled Substance, Drug, Device, and Cosmetic
Act, five counts of criminal use of a communications facility, and possession
of drug paraphernalia. Appellant was the head of a cocaine trafficking
operation in Norristown. The evidence against Appellant and his cohorts
included wiretaps, videotapes, and surveillance. Appellant was arrested in
possession of 12.38 grams of cocaine, $2,500 in cash, and two cell phones.
* Retired Senior Judge assigned to the Superior Court.
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Appellant was sentenced to twenty-one to sixty years imprisonment. On
May 24, 2012, we affirmed Appellant’s judgment of sentence,
Commonwealth v. Brewer, 50 A.3d 250 (Pa.Super. 2012) (unpublished
memorandum), and, on January 10, 2013, our Supreme Court denied
review. Commonwealth v. Brewer, 62 A.3d 377 (Pa. 2013).
Appellant filed a timely PCRA petition; counsel was appointed and filed
an amended petition. Relief was denied. Appellant appealed, claiming that
his trial attorney was ineffective for failing to file a suppression motion and
that his sentence, which involved application of five mandatory minimum
sentences under 18 Pa.C.S. § 7508, was unconstitutional under Alleyne v.
United States, 133 S.Ct. 2151 (2013).1 Commonwealth v. Brewer, 121
A.3d 1143 (Pa.Super. 2015) (unpublished memorandum). The Alleyne
claim had not been included in either of Appellant’s PCRA petitions.
The panel concluded that counsel was not ineffective and that the
Alleyne contention, which pertains to the legality of a sentence, was not
waived. We nevertheless ruled that it was not raised in a timely manner
under 42 Pa.C.S. § 9545 because Appellant raised the Alleyne claim more
than one year after his judgment of sentence became final. This Court
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1
In Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015), § 7508
was ruled unconstitutional under Alleyne. See also Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015) (invalidating a procedurally identical
mandatory minimum statute pursuant to Alleyne).
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observed that § 9545 requires all PCRA claims to be raised within one year
of when a defendant’s judgment of sentence becomes final. We noted that
Appellant’s judgment of sentence became final under the PCRA on April 15,
2013, and concluded that Appellant had until April 15, 2014 to raise Alleyne
under the PCRA. Since the Alleyne issue was not raised until September
16, 2014, it was held untimely. The Brewer Court also noted that in
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014), this Court held
that an Alleyne issue does not fall within an exception to the PCRA’s one-
year time bar.
On September 14, 2015, Appellant filed a second, counseled petition
again raising the position that his sentence was unconstitutional and had to
be vacated under Alleyne and its progeny as well as presenting an assertion
that trial counsel was ineffective for failing to call a defense witness. The
petition was dismissed as untimely, and this appeal followed. Appellant
raises these issues on appeal:
I. Whether the second PCRA petition was timely as a result
of the application of the tolling provisions identified in
Breakiron[, 781 A.2d 94 (Pa. 2001)]?
II. Whether the five mandatory minimum sentences
imposed under 18 PA.C.S. [§] 7508 must be vacated because
the sentences were imposed under a statute ruled
unconstitutional in Hopkins[, 117 A.3d 247 (Pa. 2015)]?
III. Whether trial counsel was constitutionally ineffective
for failing to interview Craig Cole who would have claimed
responsibility for the 700 grams of cocaine found at Cole's
residence?
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IV. Whether the court of common pleas has inherent
jurisdiction to correct an illegal sentence based on an
unconstitutional statute?
Appellant’s brief at 6.
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 contentions, we must analyze
whether Appellant’s September 14, 2015 PCRA petition was timely filed as
that issue implicates our jurisdiction. Miller, supra. If a PCRA petition is
untimely, “neither this Court nor the trial court has jurisdiction over the
petition.” Id. at 992 (citation omitted); see Commonwealth v. Chester,
895 A.2d 520, 522 (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).
We specifically determined in Appellant’s prior PCRA appeal that his
judgment of sentence became final on April 15, 2013, and that he had until
April 15, 2014 to file a timely PCRA petition. The September 24, 2015
petition is therefore untimely.
There are three exceptions to the one-year time bar of § 9545:
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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 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 first claims that the time period for filing his second
PCRA petition was tolled during the pendency of his first PCRA petition under
Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001). Breakiron filed a
second PCRA petition which was dismissed as untimely. Our Supreme Court
affirmed that holding, and nothing in the Breakiron decision states or
implies that the time for filing a second PCRA petition is tolled by the filing of
a first one. The above-quoted language in the PCRA is directly to the
contrary.
The Supreme Court decision that does apply a form of tolling is
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000). Therein, the PCRA
court dismissed a second petition as untimely. Lark had invoked the newly
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discovered evidence exception to the one-year time bar. The evidence in
question was discovered while Lark’s first PCRA petition was pending and our
Supreme Court held that, since Lark could not file a second PCRA petition
until the first one was resolved, he had until sixty days after litigation of the
first PCRA petition to file the second petition invoking the newly discovered
evidence exception to the PCRA.
Herein, Appellant’s claims do not involve newly discovered evidence.
He was aware of his Alleyne claim in 2014, when it was presented in the
prior PCRA appeal. As to the position that Craig Cole should have been
presented as a defense witness, Appellant concedes that he told counsel
about Cole at trial and counsel should have placed him on the stand.
Appellant’s brief at 21. Appellant therefore was aware of the witness as well
as counsel’s failure to present Cole during his January 2011 jury trial
proceedings. The existence of Cole and of counsel’s default thus are not
newly discovered.
Indeed, Appellant’s actual position as to Cole is that trial counsel was
ineffective for failing to present him as a witness because he would have
claimed ownership of drugs found in a stash house used by Appellant but
owned by Cole. Claims of ineffective assistance of counsel do not overcome
the one-year time bar of the PCRA. Commonwealth v. Wharton, 886
A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of ineffective
assistance of counsel will not overcome the jurisdictional timeliness
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requirements of the PCRA.”); see also Commonwealth v. Gamboa-
Taylor, 753 A.2d 780 (Pa. 2000) (analyzing supposed newly discovered
evidence claim and recognizing that it actually was a position that prior
counsel was ineffective); Commonwealth v. Bronshtein, 752 A.2d 868
(Pa. 2000) (after-discovered evidence exception not satisfied by allegation
that facts which form basis of claim were not knowable until present counsel
advised defendant); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000)
(same). We therefore reject Appellant’s position that his claim as to Cole is
timely.
Appellant presents identical concepts in issues two and four. In
essence, his averment is that his mandatory minimum sentences were
imposed under an unconstitutional statute and must be vacated since courts
retain the inherent jurisdiction to correct illegal sentences and such claims
cannot be waived. Appellant is mistaken in his assertion that the courts
retain jurisdiction indefinitely to correct an illegal sentence. Our Supreme
Court has held specifically that, “Although legality of sentence is always
subject to review within the PCRA, claims must still first satisfy the PCRA's
time limits or one of the exceptions thereto.” Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999); see also Commonwealth v. Jackson, 30
A.3d 516 (Pa.Super. 2011).
In Miller, supra, which was applied in Appellant’s previous appeal, we
specifically held 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 newly-recognized-constitutional-right exception to §
9545(b)(1). Miller, supra. Miller ruled that the defendant’s sentence,
which was also unconstitutional under Alleyne, could not be corrected in an
untimely PCRA petition. Miller is controlling herein.2
Having determined that the present PCRA petition was untimely, we
affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2016
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2
Indeed, Alleyne has yet to be held applicable retroactively to defendants
whose sentences were final prior to its June 17, 2013 filing date. In
Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), we ruled that
Alleyne did not apply retroactively so as to afford relief in the post-
conviction setting. The question of Alleyne’s retroactively is now pending in
an en banc case involving a timely filed PCRA petition. Commonwealth v.
Ciccone, 3114 MDA 2014.
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