Com. v. Tolliver, D.

Opinion

J-S37013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DARNELL TOLLIVER

Appellant No. 879 WDA 2015

Appeal from the PCRA Order May 18, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001679-2006

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED APRIL 28, 2016

Appellant, Darnell Tolliver, appeals pro se from the order entered in

the Allegheny County Court of Common Pleas, which denied his untimely

second petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On October 4, 2007, the court convicted Appellant

of one count of voluntary manslaughter and three counts of aggravated

assault. The court sentenced Appellant on December 18, 2007, to an

aggregate term of 10-20 years’ imprisonment. Appellant’s sentence

included the mandatory minimum per 42 Pa.C.S.A. § 9712 (requiring

mandatory minimum 5-year sentence for defendant convicted of crime of

violence where defendant visibly possessed firearm that placed victim in

reasonable fear of death or serious bodily injury). This Court affirmed the

judgment of sentence on December 22, 2009, and our Supreme Court J-S37013-16

denied allowance of appeal on September 28, 2010. See Commonwealth

v. Tolliver, 990 A.2d 56 (Pa.Super. 2009), appeal denied, 608 Pa. 640, 9

A.3d 630 (2010). On February 8, 2011, Appellant timely filed a pro se PCRA

petition. The court appointed counsel, who subsequently filed a motion to

withdraw due to a conflict of interest. After the court appointed new PCRA

counsel, counsel filed a petition to withdraw and accompanying “no-merit”

letter on July 5, 2011.1 On July 12, 2011, the court permitted counsel to

withdraw. Appellant filed an amended pro se PCRA petition on January 24,

2012. The court issued appropriate notice per Pa.R.Crim.P. 907 on January

18, 2013, and denied the petition on February 19, 2013. On April 6, 2015,

Appellant filed the current PCRA petition seeking relief under Alleyne v.

United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)

(holding any fact increasing mandatory minimum sentence for crime is

considered element of crime to be submitted to fact-finder and found beyond

reasonable doubt). The court issued Rule 907 notice on April 13, 2015, and

Appellant filed a pro se response on April 28, 2015. On May 18, 2015, the

court denied Appellant’s petition as untimely. Appellant timely filed a notice

of appeal on June 3, 2015, and a voluntary Pa.R.A.P. 1925(b) statement.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied, ____________________________________________

1 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one

year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §

9545(b)(1). A judgment is deemed final at the conclusion of direct review or

at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).

The statutory exceptions to the timeliness provisions of the PCRA allow for

very limited circumstances under which the late filing of a petition will be

excused; a petitioner asserting a timeliness exception must file a petition

within 60 days of the date the claim could have been presented. See 42

Pa.C.S.A. § 9545(b)(1-2). Instantly, Appellant’s judgment of sentence

became final on December 27, 2010, upon expiration of the time to file a

petition for writ of certiorari with the United States Supreme Court. See

U.S.Sup.Ct.R. 13. Appellant filed the current PCRA petition on April 6, 2015,

which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now

attempts to invoke the “new constitutional right” exception to the statutory

time bar per Section 9545(b)(1)(iii), insisting Alleyne and its progeny

declared unconstitutional the mandatory minimum sentencing statute under

which Appellant was sentenced. Nevertheless, the law on which Appellant

relies affords him no relief, where Appellant’s current PCRA petition is

untimely. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014)

(holding that even if Alleyne announced new constitutional right, neither

our Supreme Court nor United States Supreme Court has held that Alleyne

applies retroactively, which is fatal to appellant’s attempt to satisfy “new

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constitutional right” exception to timeliness requirements of PCRA). See

also Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (explaining

Alleyne does not invalidate illegal mandatory minimum sentence when

claim was presented in untimely PCRA petition). Thus, we affirm the denial

of PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/28/2016

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