Com. v. Eley, J.

J-S51034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORDANA L. ELEY :
:
Appellant : No. 2046 EDA 2016

Appeal from the PCRA Order June 9, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000714-1998

BEFORE: BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 29, 2017

Appellant, Jordana Eley, appeals from the order entered in the Court of

Common Pleas of Montgomery County dismissing her serial petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546 as

untimely. We affirm.

The PCRA court aptly summarizes the factual and procedural histories

of the instant case as follows:

On December 12, 1997, defendant [hereinafter Appellant] was
seventeen years old when she punched and knifed two young
women, ages fourteen and seventeen, in a movie theater during
an altercation that arose when theater management responded
to audience rowdiness by stopping the film. Appellant was tried
as an adult at a bench trial before the Honorable Paul W.
Tressler who on July 21, 1998, found Appellant guilty of three
counts of aggravated assault, two counts of simple assault, and
____________________________________________

*
Former Justice specially assigned to the Superior Court.
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a single count each of possessing an instrument of crime and
recklessly endangering another person.[] Judge Tressler
sentenced Appellant to consecutive terms of imprisonment of
seven to fifteen and two to ten years on two aggravated assault
counts and five years’ probation for possessing an instrument of
crime. Sentencing was suspended on the remaining convictions.

Appellant raised two issues on direct appeal to the Superior
Court. The first was that there was insufficient evidence to
support Judge Tressler’s finding that it was, in fact, Appellant
who was the one who punched and stabbed the victims, rather
than some other person. The second issue on direct appeal was
that Judge Tressler imposed too harsh a sentence on Appellant
given “her age and the fact that her parents and the juvenile
system had failed her….” Memorandum Opinon (3205 Phila.
1998), 6/7/99, p.5 (citing Appellant’s appellate brief at p. 13).
On June 7, 1999, the Superior Court affirmed the judgment of
sentence noting that Judge Tressler had appropriately fashioned
the sentence after considering “[Appellant’s] history of violent
conduct and failed rehabilitative treatment.” Memorandum
Opinion (Opinion (Phila. 1998), 6/7/99, pp. 6-7. Appellant did
not seek discretionary review from the Pennsylvania Supreme
Court.

On May 5, 2000, Appellant filed her first motion from post-
conviction collateral relief, pro se. Among other claims,
Appellant set forth the following:

A violation of the constitution of Pennsylvania has
been violated due to the fact that I was a juvenile
when I was arrested and did not have a h[ea]ring to
be certified as an adult to see if I was capable to
stand tr[ia]l as an adult. Also when I went to a
grand jury I was not allowed to have an adult or a
lawyer present with me so I would not [incriminate]
myself; I was respectfully five months after my
seventeenth birthday.

Ineffective assistance of counsel which, in the
circumstances again I was a juvenile and did not
understand much of what was being said to me
before, during and after my trial.

PCRA Motion, 5/1/00, p.3.

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Court-appointed counsel submitted to Appellant, and filed with
the court, a “no-merit” letter by which court-appointed counsel
explained that Appellant had no right to be tried as a juvenile, by
application of the Juvenile Act, 42 Pa.C.S.A. § 6302, because
Appellant stood accused of having committed attempted murder
and aggravated assault while age fifteen or older. “No Merit”
letter, filed 4/27/01, p.2. Court-appointed counsel also
explained that Appellant’s having testified before the grand jury
without legal counsel or an adult present did not undermine the
truth determining process which meant that there was no post-
conviction remedy available, by application of 42 Pa.C.S.A. §
9543(a)(2)(i). “No Merit” letter, filed 4/27/01, p. 2. By order
dated May 25, 2001, Judge Tressler granted leave for court-
appointed counsel to withdraw her appearance. By order dated
June 25, 2001, Judge Tressler dismissed Appellant’s first PCRA
motion, without hearing. Appellant did not appeal Judge
Tressler’s ruling.

On August 30, 2007, Appellant filed her second motion for PCRA
relief. She raised a single claim, which was that her rights were
violated when she was tried as an adult. See, e.g., Motion,
8/30/07, ¶ 5 (“My constitution was violated along with my due
process. I was a minor at time of crime committed and found
guilty in an adult court.”). By order dated October 2, 2007,
Judge Tressler dismissed that PCRA motion without hearing, as
untimely, by application of 42 Pa.C.S.A. § 9545(b)(1). See
Notice of Intent to Dismiss, dated 9/6/07. Appellant did not
appeal Judge Tressler’s ruling.

On February 8, 2016, Appellant filed her third PCRA motion. She
raised two claims. The first was that “[s]ixth amendment
confrontation clause rights were violated, I was under 18 years
of age at the time of commission of crime and were [sic]
subsequently subject to provisions of Juvenile Delinquency Act.”
Motion, 2/8/16, ¶ 5. The second was “[i]nadmissible evidence,
grand jury testimony was used to help convict me, I did not
have a parent or counsel present during my questions during
grand jury making grand jury transcripts inadmissible.” Motion,
2/8/16, ¶ 5.

PCRA Court Opinion, filed 4/12/17, at 1-3.

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The PCRA court determined that Appellant’s third petition could

provide her no relief where it was patently untimely under Section

9545(b)(1) and raised issues that were either waived or previously litigated

under Sections 9543(a)(3). Accordingly, the PCRA court entered its order of

June 9, 2016, dismissing Appellant’s third PCRA petition. This timely appeal

follows.

The timeliness of a post-conviction petition is jurisdictional. See, e.g.,

Commonwealth v. Lewis, 63 A.3d 1274, 1280–81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available. 42

Pa.C.S. § 9545(b) and (c).

It is clear that Appellant's petition is facially untimely, as her judgment

of sentence became final on July 7, 1999, thirty days after this Court

affirmed her judgment of sentence and the time for filing a petition for

allowance of appeal with the Pennsylvania Supreme Court expired. See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113.

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Appellant does, however, attempt to invoke an exception to the

statutory time-bar in her third issue,1 where she baldly alleges that her

mandatory two to ten year sentence for aggravated assault is

unconstitutional under the United States Supreme Court’s decision in

Alleyne v. United States, ---U.S. ----, 133 S.Ct. 2151 (2013). However,

our Supreme Court has held that Alleyne does not apply retroactively to

cases on collateral review. Commonwealth v. Washington, 142 A.3d 810

(Pa. 2016). Even if it did apply retroactively, Appellant's 2016 petition was

not filed within 60 days of the 2013 Alleyne decision. See

Commonwealth v. Secreti, 134 A.3d 77, 82–83 (Pa. Super. 2016) (noting

petitions filed within 60 days of Supreme Court decision recognizing

retroactive application of new constitutional right satisfied requirement of 42

Pa.C.S. § 9545(b)(2)). Therefore, because Appellant failed to establish the

applicability of a timeliness exception, the PCRA court properly dismissed her

petition for lack of jurisdiction.

Order is AFFIRMED.

____________________________________________

1
Appellant raised two issues in her petition before the PCRA court but now
presents fourteen questions for our review. The twelve issues raised here on
appeal for the first time, therefore, are waived unless they fall under a
recognized exception permitting first review with this Court. See
Commonwealth v. Fulton, 830 A.2d 567, 570 n.2 (Pa. 2003) (claim not
raised in PCRA petition is waived and may not be raised on appeal).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2017

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