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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN DANTZLER
Appellant No. 1961 WDA 2015
Appeal from the PCRA Order October 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006538-1990 CP-02-CR-0006540-
1990 CP-02-CR-0014485-1990 CP-02-CR-0016210-1990
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 10, 2016
John Dantzler appeals from the order, entered in the Court of Common
Pleas of Allegheny County, dismissing his third petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 After careful
review, we affirm.
On December 20, 1990, Dantzler entered a guilty plea to various drug
offenses. On May 15, 1991, the court sentenced Dantzler to an aggregate
term of 16 to 32 years’ incarceration. A mandatory 3-year minimum
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1
The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal
error. The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
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sentence pursuant to 18 Pa.C.S. § 7508 (drug trafficking
sentencing/penalties) was applied to his sentence. Dantzler filed a motion to
withdraw his guilty plea averring that the plea was not knowing, voluntary or
intelligent. After an evidentiary hearing, the court denied his motion.
Dantzler filed a timely direct appeal; our Court affirmed his judgment
of sentence on March 6, 1992. Dantzler filed a petition for allowance of
appeal to our Supreme Court that was denied on December 8, 1992.
Dantzler filed his first PCRA petition on May 25, 1994. On March 2, 1995,
the court dismissed Dantzler’s petition. On January 16, 1997, Dantzler filed
his second PCRA petition which the court dismissed on April 9, 1997, for
failure to state a claim upon which relief could be granted. Dantzler filed his
third PCRA petition on April 16, 2015, alleging that he is eligible for relief
due to a constitutional violation “that so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” PCRA Petition, 4/16/15, at ¶ 4(I). Specifically, Dantzler alleged that
his sentence is illegal as a result of the court’s application of an
unconstitutional mandatory minimum statute. On October 30, 2015, the
court dismissed Dantzler’s petition. This timely appeal followed.
On appeal, Dantzler presents the following issue for our review: As
the Pennsylvania Superior and Supreme Courts have found section 97122 to
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2
See 42 Pa.C.S. § 9712 (sentences for offenses committed with firearms).
Although Dantzler cites section 9712 in his appellate brief, he was actually
(Footnote Continued Next Page)
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be facially unconstitutional in its entirety, is the Appellant entitled to relief
from his illegal sentence as the statute has been unconstitutional from the
date of its passage and ineffective for any purpose? Appellant’s Brief, at 7.
Generally, a petition for PCRA relief, including a second or subsequent
petition, must be filed within one year of the date the judgment becomes
final. See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn,
703 A.2d 1054 (Pa. Super. 1997). Instantly, Dantzler’s judgment of
sentence became final, for purposes of the PCRA, on March 8, 1993, when
the time expired for him to file a petition for writ of certiorari with the United
States Supreme Court. See Sup. Ct. R. 13. Thus, in order for Dantzler’s
petition to be considered timely filed, it must have been filed by March 8,
2004. Dantzler, however, did not file his third petition until April 16, 2015 –
more than eleven years late under the PCRA. See 42 Pa.C.S.A. § 9545
(b)(3). Therefore, Dantzler’s petition is facially untimely.
However, when a petition alleges, and a petitioner proves that an
exception to the time for filing the petition is met, the petition will be
considered timely. These exceptions include interference by government
officials in the presentation of the claim, after-discovered facts or evidence,
and an after-recognized constitutional right. See Commonwealth v.
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(Footnote Continued)
sentenced under section 7508’s mandatory minimum statute, which is cited
in his Pa.R.A.P. 1925(b) statement of error complained of on appeal as well
as argued throughout his brief and amended petition.
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Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). A PCRA petition invoking
one of these exceptions must “be filed within 60 days of the date the claims
could have been presented.” Id; see also 42 Pa.C.S.A. § 9545(b)(2). The
timeliness requirements of the PCRA are jurisdictional in nature and,
accordingly, a PCRA court cannot hear untimely petitions. Commonwealth
v. Robinson, 837 A.2d 1157 (Pa. 2003).
Dantzler does not allege or prove any section 9545(b)(1) exception to
the PCRA time bar. Rather he alleges his sentence is illegal based on the
holding of Alleyne v. United States, 133 S. Ct. 2151 (2013),3 and the
application of an unconstitutional mandatory minimum statute, section
7508(a)(3)(ii). Dantzler is correct that the mandatory minimum statute
under which he was sentenced has been held unconstitutional. See
Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014). However, in
order for this Court to review a legality of sentence claim, there must be a
basis for our jurisdiction to engage in such review. See Commonwealth v.
Borovichka, 2011 PA Super 88, 18 A.3d 1242, 1254 (Pa. Super. 2011)
(stating, “[a] challenge to the legality of a sentence . . . may be entertained
as long as the reviewing court has jurisdiction[.]”) (citation omitted)). As
this Court recently noted, “[t]hough not technically waivable, a legality [of
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3
In Alleyne, the Supreme Court held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and must be found
beyond a reasonable doubt. Id. 133 S. Ct. at 2163.
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sentence] claim may nevertheless be lost should it be raised . . . in an
untimely PCRA petition for which no time-bar exception applies, thus
depriving the court of jurisdiction over the claim.” Commonwealth v.
Seskey, 86 A.3d 237, 242 (Pa. Super. 2014).4
Thus, the trial court did not err in dismissing Dantzler’s untimely PCRA
petition. Johnston, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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4
We also note that Alleyne does not invalidate an unconstitutional
mandatory minimum sentence when presented in an untimely PCRA petition.
See Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014).
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