J-S67017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ELWOOD JOHNSON

Appellant No. 1102 EDA 2016

Appeal from the PCRA Order March 29, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0009065-2006

BEFORE: FORD ELLIOT, P. J. E., STEVENS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J. FILED OCTOBER 11, 2016

Appellant, Elwood Johnson, appeals from the March 16, 2016 order 

denying, as untimely, his sixth petition filed under the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On November 21, 2008, a jury convicted Appellant of one count of 

possession of with intent to deliver at least 100 grams of cocaine, two 

counts of possession of a controlled substance, two counts of criminal use of 

a communications facility, one count of criminal conspiracy, one count of 

dealing in proceeds of unlawful activities, and two counts of corrupt 

organizations.1

____________________________________________

1 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 7512, § 

903, § 5111(a), and § 911(b), respectively.
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On February 5, 2009, the trial court sentenced Appellant to an 

aggregate term of sixteen and one-half to thirty-three years’ imprisonment, 

which included a seven year mandatory minimum sentence pursuant to 

statute. See PCRA Court Opinion, 4/25/16, at 1-2; see also 18 Pa.C.S. § 

7508(3)(iii) (directing a mandatory minimum sentence of at least seven 

years’ incarceration where the weight of the substance possessed is at least 

100 grams and defendant was previously convicted of another drug 

trafficking offense).

Appellant timely filed a notice of appeal with this Court, challenging 

the weight and sufficiency of the evidence, and the trial court’s denial of his 

motion to suppress evidence. On August 6, 2010, this Court affirmed 

Appellant’s judgment of sentence, and the Pennsylvania Supreme Court 

denied his subsequent petition for allowance of appeal on March 9, 2011. 

See Commonwealth v. Johnson, 11 A.3d 1014 (Pa. Super. 2010) 

(unpublished memorandum), appeal denied, 20 A.3d 485 (Pa. 2011) 

(unpublished memorandum).

Appellant has since filed numerous petitions, including several while 

review was still outstanding, seeking collateral relief. He filed his first 

petition on April 29, 2011. Appointed counsel submitted a Turney/Finley “no 
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merit” letter.2 The PCRA court granted counsel’s petition to withdraw and 

sent Appellant notice that his petition would be dismissed without a hearing. 

The PCRA court then dismissed his petition. Appellant appealed to this Court, 

which remanded for reappointment of PCRA counsel and an evidentiary 

hearing. The petition was ultimately dismissed by the PCRA court on May 

31, 2013. Appellant did not file an appeal.

Appellant’s second and third petitions, filed during the pendency of the 

litigation of his first PCRA, were dismissed as premature. His fourth petition 

was filed July 18, 2013 and dismissed by the PCRA court, after proper 

notice, without a hearing. This Court denied his subsequent appeal on 

October 22, 2014. See Commonwealth v. Johnson, 108 A.3d 120 (Pa. 

Super. 2014) (unpublished memorandum). Appellant’s fifth PCRA was 

dismissed, after proper notice, on September 9, 2015. This Court dismissed 

his appeal per curiam on January 8, 2016, for failure to file an appellate 

brief. 

On February 19, 2016, Appellant filed the instant petition, contending 

his sentence was illegal pursuant to Alleyne v. United States, 133 S. Ct. 

2151 (2013). On March 3, 2016, the PCRA court issued a Pa.R.Crim.P. 907 

notice of its intent to dismiss Appellant’s petition without a hearing. 

____________________________________________

2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998); 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
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Appellant filed a response, but on March 29, 2016, the court dismissed 

Appellant’s petition as untimely. 

Appellant timely filed a notice of appeal and submitted a statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA 

court issued a responsive opinion April 25, 2016.

Herein, Appellant presents one issue for our review:

1. Did the United States Supreme Court decision in 

Montgomery v. Louisiana, 136 S.Ct. 718 (2016) establish all 

substantive constitution [sic] new rule a constitutional right to 

retroactivity and gives state courts jurisdiction to hear 

Appellant’s Alleyne challenge on collateral review under 42 

Pa.C.S. § 9545(b)(1)(iii) and did Appellant file in a timely 

manner under the time requirement of 42 Pa.C.S. § 9545(b)(2)?

Appellant’s Brief at 1 (unnecessary capitalization and emphasis omitted).

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:
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(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 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).

Appellant acknowledges that his 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 8 (citing 42 

Pa.C.S. § 9545(b)(1)(iii)).

____________________________________________

3 Appellant’s petition is patently untimely. Appellant’s judgment of sentence 

became final on June 7, 2011, at the expiration of the ninety-day time 

period for seeking review with the United States Supreme Court. See 42 

Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final at the 

conclusion of direct review or the expiration of the time for seeking the 

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) 

(noting that Sup.Ct.R. 13 grants an Appellant ninety days to seek review 

with the United States Supreme Court). Thus, Appellant had until June 6, 

2012, to timely file a petition. Appellant filed his current petition on February 

19, 2016.
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According to Appellant, the sentence imposed upon him is illegal 

pursuant to a newly-recognized constitutional rule. See Appellant’s Brief at 

8, 10 (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 new rule must be applied retroactively, thus entitling 

him to collateral relief. Id. at 10-11 (citing in support Montgomery v. 

Louisiana, 136 S. Ct. 718 (2016)).

Appellant’s reliance upon Montgomery to establish the retroactive 

applicability of Alleyne is misplaced. In Montgomery, the United States 

Supreme Court recognized that state collateral review courts must give 

retroactive effect to a new, substantive rule of constitutional law. 

Montgomery, 136 S. Ct. at 729. However, the Pennsylvania Supreme 

Court has recently determined that the rule announced in Alleyne was 

neither a substantive nor a “watershed” procedural rule and, therefore, did 

not apply retroactively to cases pending on collateral review. 

Commonwealth v. Washington, --- A.3d ---, at *8 (Pa. 2016), see also 

Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015) 

(same).

Appellant’s petition is untimely, and he has not satisfied a timeliness 

exception to the requirements of the PCRA. Consequently, the PCRA court 
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was without jurisdiction to review the merits of Appellant’s claim, and 

properly dismissed his petition. See Ragan, 932 A.2d at 1170.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/11/2016