J-S35019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
DAMAR LAMONT JORDAN
Appellant No. 1574 WDA 2016
Appeal from the PCRA Order September 15, 2016 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003348-2012
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED JULY 6, 2017
Appellant, Damar Lamont Jordan, appeals from the order entered
September 15, 2016, denying as untimely his second petition for collateral
relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
In April 2013, Appellant pleaded guilty to third degree murder of
Kendall Bryant and the aggravated assault of Ramone Lemon.1 See PCRA
Court Opinion, 11/15/16, at 1. On June 20, 2013, Appellant was sentenced
to serve an aggregate sentence of twenty and one-half to forty-one years of
incarceration. Appellant’s judgment of sentence was affirmed on appeal.
See Commonwealth v. Jordan, 97 A.3d 802 (Pa. Super. 2014) ____________________________________________
* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2502(c) and 18 Pa.C.S. § 2702. J-S35019-17
(unpublished memorandum). He did not pursue allowance of appeal with
the Pennsylvania Supreme Court.
In June 2014, Appellant timely filed a first PCRA petition, challenging
the validity of his plea. Counsel was appointed and filed a supplemental
petition on his behalf. The PCRA court issued an opinion and notice of intent
to dismiss pursuant to Pa.R.Crim.P. 907(1), also amending its sentencing
order so that restitution was assigned to count one only. The PCRA court
then denied collateral relief. Appellant timely appealed, and this Court
affirmed the dismissal. See Commonwealth v. Jordan, 122 A.3d 456 (Pa.
Super. 2015), appeal denied, 128 A.3d 1205 (Pa. 2015).
On May 24, 2016, Appellant untimely filed pro se a second PCRA
petition, arguing that his mandatory minimum sentence was illegal pursuant
to Alleyne v. United States2 and that his prior counsel had provided
ineffective assistance of counsel. See PCRA Petition, 5/24/16, at 1-6. The
PCRA court sent Appellant notice of intent to dismiss his petition as untimely
pursuant to Pa.R.Crim.P. 907. The court then dismissed his petition.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court issued a responsive opinion relying on its previous order.
____________________________________________
2 Alleyne v. United States, 133 S. Ct. 1251 (2013) (holding that any fact that increases the sentence for a given crime must be submitted to the jury and found beyond a reasonable doubt).
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We have rephrased Appellant’s issues for clarity. On appeal, Appellant
contends that:
1. The PCRA court erred in dismissing Appellant’s petition as untimely, as Appellant had been sentenced to an illegal mandatory minimum sentence under Alleyne, and Alleyne should apply retroactively to his case;
2. Prior direct appeal and PCRA counsel were ineffective for failure to raise Appellant’s Alleyne claim;
3. The PCRA court erred in dismissing Appellant’s petition as untimely, as Appellant’s sentences for aggravated assault and third degree murder should have merged for sentencing purposes.
See Appellant’s Brief at 10-17.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the
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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 these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
We will address Appellant’s first two issues together, as they are
intertwined. Appellant’s petition is untimely.3 Nevertheless, Appellant
asserts his claim is based upon a newly recognized constitutional right held
to apply retroactively. See Appellant’s Brief at 17 (citing in support
Alleyne, 133 S. Ct. at 2155 (concluding that “[a]ny fact that … increases
the penalty for a crime is an ‘element’ that must be submitted to the jury
and found beyond a reasonable doubt”)). Moreover, Appellant asserts, this
3 Appellant’s judgment of sentence became final on March 13, 2014, at the expiration of his thirty days to petition for allowance of appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a); see also Commonwealth v. McMaster, 730 A.2d 524, 527 (Pa. Super. 1999). Accordingly, Appellant had until March 13, 2015, to timely file a PCRA petition.
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new rule must be applied retroactively, thus entitling him to collateral relief.
Id. (citing in support Montgomery v. Louisiana, 136 S. Ct. 718 (2016)).
While the PCRA court correctly points out that in general, Alleyne
claims are not cognizable on post collateral review, citing in support
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), this Court has
recognized narrow exceptions to this rule. We have held that a petitioner is
entitled to application of Alleyne where an appellant raises the claim in a
timely PCRA petition and his judgment of sentence was not final prior to the
date of the Alleyne decision. See Commonwealth v. Ruiz, 131 A.3d 54,
59-60 (Pa. Super. 2015).
Alleyne was decided June 17, 2013. Appellant was sentenced on June
20, 2013, three days later. Accordingly, because Appellant’s judgment of
sentence was not final prior to the date of the Alleyne decision, he had the
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J-S35019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
DAMAR LAMONT JORDAN
Appellant No. 1574 WDA 2016
Appeal from the PCRA Order September 15, 2016 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003348-2012
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED JULY 6, 2017
Appellant, Damar Lamont Jordan, appeals from the order entered
September 15, 2016, denying as untimely his second petition for collateral
relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
In April 2013, Appellant pleaded guilty to third degree murder of
Kendall Bryant and the aggravated assault of Ramone Lemon.1 See PCRA
Court Opinion, 11/15/16, at 1. On June 20, 2013, Appellant was sentenced
to serve an aggregate sentence of twenty and one-half to forty-one years of
incarceration. Appellant’s judgment of sentence was affirmed on appeal.
See Commonwealth v. Jordan, 97 A.3d 802 (Pa. Super. 2014) ____________________________________________
* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2502(c) and 18 Pa.C.S. § 2702. J-S35019-17
(unpublished memorandum). He did not pursue allowance of appeal with
the Pennsylvania Supreme Court.
In June 2014, Appellant timely filed a first PCRA petition, challenging
the validity of his plea. Counsel was appointed and filed a supplemental
petition on his behalf. The PCRA court issued an opinion and notice of intent
to dismiss pursuant to Pa.R.Crim.P. 907(1), also amending its sentencing
order so that restitution was assigned to count one only. The PCRA court
then denied collateral relief. Appellant timely appealed, and this Court
affirmed the dismissal. See Commonwealth v. Jordan, 122 A.3d 456 (Pa.
Super. 2015), appeal denied, 128 A.3d 1205 (Pa. 2015).
On May 24, 2016, Appellant untimely filed pro se a second PCRA
petition, arguing that his mandatory minimum sentence was illegal pursuant
to Alleyne v. United States2 and that his prior counsel had provided
ineffective assistance of counsel. See PCRA Petition, 5/24/16, at 1-6. The
PCRA court sent Appellant notice of intent to dismiss his petition as untimely
pursuant to Pa.R.Crim.P. 907. The court then dismissed his petition.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court issued a responsive opinion relying on its previous order.
____________________________________________
2 Alleyne v. United States, 133 S. Ct. 1251 (2013) (holding that any fact that increases the sentence for a given crime must be submitted to the jury and found beyond a reasonable doubt).
-2- J-S35019-17
We have rephrased Appellant’s issues for clarity. On appeal, Appellant
contends that:
1. The PCRA court erred in dismissing Appellant’s petition as untimely, as Appellant had been sentenced to an illegal mandatory minimum sentence under Alleyne, and Alleyne should apply retroactively to his case;
2. Prior direct appeal and PCRA counsel were ineffective for failure to raise Appellant’s Alleyne claim;
3. The PCRA court erred in dismissing Appellant’s petition as untimely, as Appellant’s sentences for aggravated assault and third degree murder should have merged for sentencing purposes.
See Appellant’s Brief at 10-17.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the
-3- J-S35019-17
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 these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
We will address Appellant’s first two issues together, as they are
intertwined. Appellant’s petition is untimely.3 Nevertheless, Appellant
asserts his claim is based upon a newly recognized constitutional right held
to apply retroactively. See Appellant’s Brief at 17 (citing in support
Alleyne, 133 S. Ct. at 2155 (concluding that “[a]ny fact that … increases
the penalty for a crime is an ‘element’ that must be submitted to the jury
and found beyond a reasonable doubt”)). Moreover, Appellant asserts, this
3 Appellant’s judgment of sentence became final on March 13, 2014, at the expiration of his thirty days to petition for allowance of appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a); see also Commonwealth v. McMaster, 730 A.2d 524, 527 (Pa. Super. 1999). Accordingly, Appellant had until March 13, 2015, to timely file a PCRA petition.
-4- J-S35019-17
new rule must be applied retroactively, thus entitling him to collateral relief.
Id. (citing in support Montgomery v. Louisiana, 136 S. Ct. 718 (2016)).
While the PCRA court correctly points out that in general, Alleyne
claims are not cognizable on post collateral review, citing in support
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), this Court has
recognized narrow exceptions to this rule. We have held that a petitioner is
entitled to application of Alleyne where an appellant raises the claim in a
timely PCRA petition and his judgment of sentence was not final prior to the
date of the Alleyne decision. See Commonwealth v. Ruiz, 131 A.3d 54,
59-60 (Pa. Super. 2015).
Alleyne was decided June 17, 2013. Appellant was sentenced on June
20, 2013, three days later. Accordingly, because Appellant’s judgment of
sentence was not final prior to the date of the Alleyne decision, he had the
one-year PCRA period to raise a challenge to the legality of his sentence.
Unfortunately for Appellant, he did not raise his claims on direct appeal or
within the one-year time period to file a PCRA. Had PCRA counsel timely
raised and preserved this issue, Appellant could have retained a viable claim
of ineffective assistance of appellate counsel or a challenge to the legality of
his sentence. See Ruiz, 131 A.3d at 60, citing Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (recognizing that
Alleyne applies to all criminal cases pending on direct review), appeal
denied, 121 A.3d 946 (Pa. 2015).
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However, Alleyne does not invalidate a mandatory minimum sentence
when presented in an untimely PCRA petition. See Commonwealth v.
Miller, 102 A.3d 988 (Pa. Super. 2014); see also Washington, 142 A.3d
at 820. With regard to his claims of ineffectiveness of PCRA counsel,
Appellant has not pleaded a circumstance that would allow the
circumvention of the time bar. See, e.g., 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Finally, Appellant argues that his sentence is illegal because his
sentences for aggravated assault and third degree murder should have
merged for sentencing purposes. See Appellant’s Brief at 11-12. Appellant
has not pleaded a time bar exception with regard to this claim, and although
the legality of sentence may be reviewed within the PCRA, claims “must still
first satisfy the PCRA's time limits or one of the exceptions thereto.” See
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/6/2017
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