J. S15044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARRYL H. DICKSON, : No. 1826 EDA 2017
:
Appellant :
Appeal from the PCRA Order, May 16, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-020501-1983
BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 24, 2018
Appellant, Darryl Dickson, appeals pro se, from the May 16, 2017
order dismissing his second petition under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.
The PCRA court provided the following procedural history:
On September 8, 1983, [appellant] pled guilty to
murder generally, criminal conspiracy, robbery, and
possessing an instrument of crime before the
Honorable Juanita Kidd Stout. Judge Stout found
[appellant] guilty of second degree murder and
sentenced him to life imprisonment. He was
sentenced to an aggregate sentence of twelve and
[one-]half (12½) to thirty (30) years for the lesser
offenses. No direct appeal was filed.
On February 24, 2004, [appellant] filed his first
pro se [PCRA] petition. Counsel was appointed, and
subsequently filed a Turner/[Finley] no-merit letter
to the court.[Footnote 2] On November 30, 2004,
the PCRA petition was dismissed. The Pennsylvania
J. S15044/18
Superior Court affirmed the PCRA court’s decision on
November 10, 2005.[Footnote 3] [Appellant] did not
file a petition for allowance of appeal to the
Pennsylvania Supreme Court.
[Footnote 2] Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc).
[Footnote 3] Commonwealth v.
Dickson, 890 A.2d 1097 (Pa.Super.
2005) (unpublished memorandum).
The instant petition was filed on August 13, 2012,
followed by several amended petitions dated
March 11, 2016, March 22, 2016, and August 17,
2016. Pursuant to Pa.R.Crim.P. 907, [the PCRA]
court sent a notice of intent to dismiss the petition as
untimely without exception on March 7, 2017.
[Appellant] did not file a response to the 907 notice.
[The PCRA] court formally dismissed the petition on
May 16, 2017. [Appellant] timely filed a notice of
appeal to the Pennsylvania Superior Court on June 6,
2017.
PCRA court opinion, 7/25/17 at 1-2 (footnote 4 omitted). The PCRA court
did not order appellant to file a concise statement of errors pursuant to
Pa.R.A.P. 1925(b). The PCRA court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on July 25, 2017.
Appellant challenges the constitutionality of his sentence of life
imprisonment. (Appellant’s brief at 1.) Specifically, appellant maintains that
his sentence is unconstitutional pursuant to the Supreme Court of the United
States’ holdings in Miller v. Alabama, 567 U.S. 460 (2012); Alleyne v.
-2-
J. S15044/18
United States, 570 U.S. 99 (2013); and Montgomery v. Louisiana, 136
S.Ct. 718 (2016). (See appellant’s brief in passim.)
Having determined, after careful review, that the Honorable Tracy
Brandeis-Roman, in her Rule 1925(a) opinion of July 25, 2017, ably and
comprehensively disposes of appellant’s issues on appeal, with appropriate
references to the record and without legal error, we will affirm on the basis
of that opinion dismissing appellant’s serial PCRA petition as untimely.
Additionally, appellant was 21 years of age at the time of the offense.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/18
-3-
0014_Opinion
Circulated 03/28/2018 03:11 PM
COURT OF COMMON PLEAS OF PHILADLEPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYL VA.NIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA
v.
CP-51-CR-0205701-1983
DARRYL DICKSON 1826 EDA 2017
OPINION
TRACY BRANDEIS-ROMAN, J. Date: July 25, 2017
This appeal comes before the Superior Court following the dismissal of a Post Conviction
Relief Act ("PCRA")1 petition filed on August 13, 2012. On May 16, 2017, the lower court
dismissed the PCRA petition and supplemental filings for the reasons set forth below.
I. PROCEDURAL HISTORY
On September 8, 1983, Petitioner pied guilty to murder generally, criminal conspiracy,
robbery, and possessing an instrument of crime before the Honorable Juanita Kidd Stout. Judge
Stout found Petitioner guilty of second degree murder and sentenced him to life imprisonment. He
was sentenced to an aggregate sentence of twelve and half ( 12 Y2 ) to thirty (30) years for the lesser
offenses. No direct appeal was filed.
On February 24, 2004, Petitioner filed his first pro se Post Conviction Relief Act petition.
Counsel was appointed, and subsequently filed a Turner/Finely no-merit letter to the court.2 On
November 30, 2004, the PCRA petition was dismissed. The Pennsylvania Superior Court affirmed
the PCRA court's decision on November 10, 2005.3 Petitioner did not file a petition for allowance
of appeal to the Pennsylvania Supreme Court.
1 42 Pa. Cons. Stat. §§ 9541-9546.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
bane). ,..-
3 Commonwealth v. Dickson, 890 A.2d I 097 (Pa. Super. 2005)(unpublis,?_e,d memorandum)-; CP�51-CR-0205701·1�p�n�o�mm. v. Dickson, Darryl
:".
1
111111 111111111
7979129671
.-
The instant petition was filed on August 13, 2012, followed by several amended petitions
dated March 11, 2016, March 22, 2016, and August 17, 2016. Pursuant to Pa.R.Crim.P. 907, this
court sent a notice of intent to dismiss the petition as untimely without exception on March 7,
2017. Petitioner did not filea response to the 907 notice. This court formally dismissed the petition
on May 16, 2017.4 Petitioner timely filed a notice of appeal to the Pennsylvania Superior Court on
June 6, 2017.
II. DISCUSSION
Petitioner's PCRA petition challenging the constitutionality of his sentence was facially
untimely. As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Robinson, 12 A.3d 4 77 (Pa. Super. 2011 ). A PCRA petition, including a second
or subsequent petition, shall be filed within one year of the date the underlying judgment becomes
final. 42 Pa. Cons. Stat. §9545(b )(I). A judgment is deemed final "at the conclusion of direct
review, 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." Id. § 9545(b)(3).
Petitioner's judgment of sentence became final for PCRA purposes on or about October 8,
1983, thirty (30) days after the time period for filing an appeal in the Pennsylvania Superior Court
expired. Petitioner's prose petition, filed on August 13, 2012 was therefore untimely by over
twenty-eight (28) years. See 42 Pa. Cons. Stat. § 9545(b )(1 ).
The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited
circumstances under which the late filing of a petition will be excused. Id. § 9545(b )(I ).To invoke
an exception, a petition must allege and Petitioner must prove:
4
The order was issued more than twenty days after Petitioner was served with notice of the forthcoming dismissal of
his Post-Conviction Relief Act petition. Pa.R.Crim.P. 907.
2
(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.
Id § 9545(b)(1 )(i)-(iii).
In an attempt to invoke the newly recognized constitutional right exception, Petitioner argued
that he was eligible for relief in accordance with the United States Supreme Court decision in
Miller v. Alabama, 132 S. Ct. 2455 (2012). In his amended petitions, he stated the United States
Supreme decision in Montgomery v. Louisiana, I 36 S. Ct. 7 I 8 (2016) afforded him relief because
it rendered the holding in Alleyne v. United States, I 33 S. Ct. 2 I 5 I (2013) retroactive. Petitioner
was incorrect in his assessments.
The Supreme Court of the United States held that mandatory life sentences without parole for
juvenile offenders convicted of murder violated the gth Amendment's prohibition on cruel and
unusual punishment. See Miller, 132 S. Ct. at 2460(2012) ("We therefore hold that mandatory life
without parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment's prohibition on 'cruel and unusual punishments."). The United States later held in
Montgomery that this constitutional right was to be applied retroactively to cases on collateral
review. However, those petitioning for relief under either case must have been "under the age of
eighteen (18) at the time of their offense in order to be eligible for relief. Here, Petitioner fully
admits in his petition that he was twenty-one (21) years old at the time of his offense, thus making
him ineligible for relief. PCRA Petition, 3/22/16 at 19.
Moreover, Petitioner was not eligible for relief under Alleyne. The United States Supreme
3
.. . . .
Court in Alleyne held "[M]andatory minimum sentences increase the penalty for a crime, any fact
that increases the mandatory minimum is an 'element' that must be submitted to the jury." Alleyne,
133 S. Ct. at 2153. While the United States Supreme Court was silent on the retroactivity of
Alleyne, the Pennsylvania Supreme Court has unequivocally held that the decision in Alleyne did
not apply retroactively to collateral attacks on mandatory minimum sentences advanced in post
conviction relief proceedings. See Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016)
(addressing the retroactivity of Alleyne).
With regard to Montgomery, its decision was carefully limited to only giving the Miller
decision retroactive effect. The Montgomery holding specifically addressed juvenile offenders
convicted of homicide, and sentenced to life imprisonment without parole. In this instance,
Petitioner was not a juvenile at the time of his offense. Therefore, the decision in Montgomery
neither applied to his case, nor was it applicable to the Alleyne decision.
III. CONCLUSION
This court has evaluated Petitioner's untimely filings and determined them to be without
exception. Petitioner failed to satisfy his burden of establishing an exception to the PCRA's
statutory time bar. Accordingly, for the reasons stated herein, the decision of the court dismissing
the PCRA petition should be affirmed.
BY THE COURT:
4