J-S59004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELIJAH ALEKNAIM ISHMAIL,
Appellant No. 339 EDA 2016
Appeal from the PCRA Order January 6, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004415-2007
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 18, 2016
Appellant, Elijah Aleknaim Ishmail, appeals pro se from the post-
conviction court’s January 6, 2016 order denying, as untimely, his petition
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
After careful review, we affirm.
The PCRA court set forth the pertinent procedural history of Appellant’s
case, as follows:
On January 25, 2008[,] [Appellant] appeared before the
Honorable Barry C. Dozer and entered a negotiated guilty plea to
[possession with intent to deliver (PWID)] … and [r]esisting
[a]rrest…. Immediately thereafter, the [c]ourt imposed a
sentence, consistent with the terms of the negotiated plea, to a
state term of 18 to 36 months[’] confinement [for] PWID,
followed by 2 years of consecutive state probation [for]
[r]esisting [a]rrest. No post[-]sentence motions were filed,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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including any motion requesting withdrawal of [Appellant’s]
guilty plea. No appeal was filed to the Pennsylvania Superior
Court. Thus, [Appellant’s] judgment of sentence became final
on February 24, 2008.
[Appellant] subsequently violated the terms of his
probation when PA Parole authorities conducted a search of his
home and found two firearms. [Appellant] was arrested,
ultimately convicted and sentenced to a 5-10 year state term of
confinement, plus 4 years of consecutive state probation. As a
result of [Appellant’s] new conviction, a [revocation of probation]
[h]earing was held. Following the hearing, the [c]ourt sentenced
[Appellant] to a 1-2 year state term to run consecutive to the
sentence imposed on the firearms case. A timely direct appeal
to the Superior Court followed at 1108 EDA 2013. On December
4, 2013, the Superior Court affirmed [Appellant’s] judgment of
sentence. [Commonwealth v. Ishmail, 93 A.3d 500 (Pa.
Super. 2013) (unpublished memorandum). Appellant did not
petition for allowance of appeal with our Supreme Court.]
On August 6, 2015[, Appellant] filed a pro se PCRA
[petition] and PCRA [c]ounsel was appointed to represent
[him]…. After an exhaustive review of the record, on December
7, 2015, PCRA counsel filed a [Turner/Finley1] “No Merit”
letter. On December 10, 2015[,] this [c]ourt served [Appellant]
with a Twenty Day Notice of Intent to Dismiss [his] PCRA
Petition without a hearing. Thereafter, [Appellant’s] PCRA
[petition] was dismissed on January 6, 2016 and this timely
appeal followed.
PCRA Court Opinion (PCO), 3/10/16, at 1-2 (footnotes omitted).
Appellant complied with the PCRA court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. In his pro se
brief to this Court, Appellant raises six issues for our review. See
Appellant’s Brief at 6 (unnumbered). Before we may address any of those
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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claims, however, we must examine the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of
sentence becomes final, unless one of the following exceptions set forth in
42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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 attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Here, Appellant’s judgment of sentence became final on January 3,
2014. Thus, his petition filed on August 6, 2015 is patently untimely, and
for this Court to have jurisdiction to review the merits thereof, Appellant
must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b). Appellant does not present
any coherent or meaningfully developed argument in this regard. Instead,
from what we can discern, he primarily raises claims of ineffective assistance
of counsel, with no discussion of how those assertions meet a timeliness
exception. It is well-established that ineffective assistance of counsel
claims, on their face, do not meet a timeliness exception. See
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
Throughout his brief, Appellant also intersperses arguments challenging the
legality of his sentence, the voluntariness of his guilty plea, and the legality
of a search of his vehicle. Again, Appellant offers no explanation of how
these claims satisfy a timeliness exception.2
____________________________________________
2
We note that in his pro se PCRA petition, Appellant attempted to invoke the
timeliness exception of section 9545(b)(1)(iii) based on the United States
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151,
2163 (2013) (holding that “facts that increase mandatory minimum
sentences must be submitted to the jury” and found beyond a reasonable
doubt), and/or the Pennsylvania Supreme Court’s decision in
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (holding the
mandatory minimum sentencing statute of 18 Pa.C.S. § 6317 (Drug-free
school zones) is unconstitutional in light of Alleyne). Appellant seemingly
abandons this claim on appeal. Nevertheless, we note that the record does
not indicate that any mandatory minimum sentence was imposed in
Appellant’s case, thus making the rule announced in Alleyne completely
(Footnote Continued Next Page)
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In sum, Appellant has not met his burden of pleading and proving the
applicability of a timeliness exception. Therefore, the PCRA court did not err
in dismissing his untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2016
_______________________
(Footnote Continued)
inapplicable. Additionally, even if he were serving a mandatory term,
Appellant cannot rely on Alleyne to satisfy the ‘new retroactive right’
exception to the PCRA timeliness requirements because the United States
Supreme Court has not held that Alleyne applies retroactively, and our
Supreme Court has expressly held that it does not apply to cases on
collateral review. See Commonwealth v. Washington, 142 A.3d 810 (Pa.
2016). Moreover, Appellant cannot rely on Hopkins to meet the timeliness
exception of section 9545(b)(1)(iii), as that decision did not announce a new
rule, but merely applied the rule created in Alleyne.
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