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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DEWAYNE LAMONT ELLERBY
Appellant No. 1884 MDA 2016
Appeal from the PCRA Order October 31, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003728-1996
CP-06-CR-0003729-1996
BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.
JUDGMENT ORDER BY BOWES, J.: FILED JULY 14, 2017
Dewayne Ellerby appeals from the order denying his PCRA petition as
untimely. We affirm.
We previously set forth the factual history in our memorandum
denying Appellant’s pursuit of direct appeal relief. Briefly stated, Appellant
and his male co-defendant engaged in a crime spree on the evening of
August 28, 1996, in which the two men attempted to abduct a German
tourist, kidnapped another woman, shot at the woman when she was able to
flee, and engaged in a high speed pursuit with a police officer who had
spotted their vehicle. See Commonwealth v. Ellerby, 718 A.2d 856 (Pa.
Super. 1998) (unpublished memorandum). As a result, Appellant was
charged with dozens of crimes. Following a jury trial, Appellant was
* Former Justice specially assigned to the Superior Court.
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convicted of multiple crimes and was sentenced to an aggregate period of
fifteen to thirty years incarceration, which included some mandatory
minimum sentences.
Appellant sought relief with this Court on direct appeal, which we
denied by unpublished memorandum filed May 22, 1998. Id. Appellant did
not seek further review with our Supreme Court. He sought PCRA relief on
four prior occasions, one of which was dismissed on appeal for failing to file
a brief. The other three were denied for various reasons. See
Commonwealth v. Ellerby, 817 A.2d 1176 (Pa. Super. 2002) (unpublished
memorandum); Commonwealth v. Ellerby, 855 A.2d 130 (Pa.Super.
2004) (unpublished memorandum); Commonwealth v. Ellerby, 880 A.2d
5 (Pa.Super. 2005) (unpublished memorandum).
The instant petition seeking PCRA relief was docketed on March 16,
2016. The PCRA court issued a notice of intent to dismiss, and, on October
31, 2016, dismissed the petition as untimely. Appellant and the PCRA court
complied with Pa.R.A.P. 1925 and the matter is ready for our review.
Appellant presents two issues for our consideration.
I. Whether the United States Supreme Court case
Montgomery v. Louisiana . . . has rendered a new
executive decision that applies to all cases of substantive
rules of constitutional law. Thereby, making it
“constitutionally” permissible, by due process of law, for a
defendant to raise said claim where application applies
under U.S.C.A. 5th, 8th, and 14th.
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II. Whether the ruling within Montgomery . . . gives
retroactive effect to [Alleyne], when involving new
watershed procedural rules and substantive rules of
constitutional law of which applies to a defendant.
Appellant’s brief at 3.
It is well-settled that all PCRA petitions must be filed within one year
of the date a defendant’s judgment of sentence becomes final, unless an
exception applies. 42 Pa.C.S. § 9545(b)(1). The time-bar is jurisdictional in
nature; therefore, “when a PCRA petition is untimely, neither this Court nor
the trial court has jurisdiction over the petition.” Commonwealth v.
Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation and quotation marks
omitted). Timeliness presents a question of law, which we review de novo
and our scope of review is plenary. Commonwealth v. Hudson, 156 A.3d
1194, 1197 (Pa.Super. 2017).
Appellant’s attempt to circumvent the time bar relied upon §
9545(b)(1)(iii), which confers jurisdiction when the Supreme Court of the
United States or Pennsylvania have recognized the retroactive application of
a new constitutional right. Appellant relies upon Louisiana v.
Montgomery, 136 S.Ct. 718 (2016), as satisfying that statute.
That case did indeed announce a new retroactive right, but its holding
is limited to Miller v. Alabama, 567 U.S. 460 (2012), which determined
that it is unconstitutional to impose a mandatory sentence of life
imprisonment without the possibility of parole for crimes committed while
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the defendant was a juvenile. Miller has no applicability to Appellant, as he
was not sentenced to a mandatory sentence of life imprisonment without
parole nor was he a juvenile when he committed his crimes. Instead, his
PCRA claim pertains to Alleyne v. United States, 133 S.Ct. 2151 (2013),
which held that a jury must find beyond a reasonable doubt any facts that
increase a mandatory minimum sentence.
There is no doubt that Alleyne is not to be applied retroactively in the
PCRA setting and it fails to trigger the § 9545(b)(1)(iii) exception.
Commonwealth v. Washington, 142 A.3d 810, 818 (Pa. 2016).
Therefore, the PCRA court correctly determined that it lacked jurisdiction to
address Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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