J-S47020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

KENDRICK JERMANE HOLLOWAY

Appellant No. 217 MDA 2015

Appeal from the PCRA Order December 8, 2014

In the Court of Common Pleas of Cumberland County

Criminal Division at No(s): CP-21-CR-0000662-2010

BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED JULY 28, 2015

Kendrick Jermane Holloway appeals, pro se, from the order entered 

December 8, 2014, in the Cumberland County Court of Common Pleas, 

dismissing his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. § 9541 et seq. Holloway seeks relief from the judgment 

of sentence of an aggregate seven years, three months to 16 years’ 

imprisonment, following his jury conviction of possession with intent to 

deliver heroin, unlawful possession of heroin, and possession of drug 

paraphernalia.1 On appeal, he contends the PCRA court erred in permitting 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 781-113(a)(32), 

respectively.
J-S47020-15

- 2 -

appointed counsel to withdraw pursuant to Turner/Finley2 when there 

existed an issue of arguable merit, namely the legality of his sentence in 

light of the United States Supreme Court’s decision in Alleyne v. United 

States, 133 S.Ct. 2151 (U.S. 2013). Because we agree with the PCRA 

court’s conclusion that Holloway’s petition was untimely filed, and Holloway 

is, therefore, entitled to no relief, we affirm the order on appeal.

The facts and procedural history are aptly summarized by the trial 

court as follows:

[Holloway’s] vehicle was stopped by Sergeant Anthony 

DeLuca on February 23, 2010, for speeding (going 74 mph in a 

65 mph zone) and the lack of a visible registration expiration 

sticker. After issuing [Holloway] a warning card for the 

registration expiration sticker, Sergeant DeLuca asked if he could 

search the vehicle and [Holloway] gave his consent. During the 

search, 18,548 packets of heroin, weighing 460 grams, were 

found in a concealed trap compartment of the vehicle. 

[Holloway] filed a Motion to Suppress on June 25, 2010. A 

suppression hearing was held on August 23, 2010. [Holloway’s] 

Motion to Suppress Evidence was denied by Order of Court on 

October 27, 2010. Thereafter, a jury trial was held on November 

15-19, 2010. [Holloway] was found guilty of Counts 1, 3, and 4, 

and was found not guilty of Count 2. 

[Holloway] was sentenced on December 21, 2010. At 

Count 1, [possession with intent to deliver,] he was sentenced to 

7 to 15 years imprisonment in a state correctional institution. 

This was an aggravated range sentence. The reasons given by 

the Court for the aggravated range sentence were: (1) a lesser 

sentence would depreciate the seriousness of the crime and (2) 

____________________________________________

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S47020-15

- 3 -

the sheer quantity of drugs involved established the offense as a 

major drug trafficking crime. Count 3 [possession of heroin] 

merged with Count 1 for sentencing purposes. At Count 4, 

[possession of paraphernalia, Holloway] was sentenced to 3 

months to 1 year in a state correctional institute to run 

consecutive with Count 1. [Holloway’s] aggregate sentence was 

7 years, 3 months to 16 years.

[Holloway] thereafter filed a direct appeal, arguing that the 

Court erred in denying his Motion to Suppress for several 

reasons. The Superior Court affirmed [Holloway’s] judgment of 

sentence, and [his] Petition for Allowance of Appeal to the 

Supreme Court was denied on March 7, 2012. [See 

Commonwealth v. Holloway, 37 A.3d 1222 (Pa. Super. 2011) 

(unpublished memorandum), appeal denied, 40 A.3d 120 (Pa. 

2012).] 

[Holloway] filed the instant PCRA on July 3, 2014. This 

Court appointed PCRA counsel, who filed a no-merit letter and a 

Motion for Leave to Withdraw as Counsel on October 22, 2014. 

After conducting an independent review and finding no merit to 

[Holloway’s] allegations, on October 24, 2014, this Court allowed 

PCRA counsel to withdraw and notified [Holloway] that it 

intended to dismiss the PCRA Motion within 20 days. [Holloway] 

filed an Objection to Appointed Counsel Motion to Withdraw 

Pursuant to Rule 907 on December 5, 2014. Thereafter, this 

Court dismissed [Holloway’s] PCRA [petition] on December 8, 

2014. The instant appeal followed.

PCRA Court Opinion, 2/23/2015, at 2-3 (footnotes omitted).3

On appeal, Holloway contends the PCRA court erred in permitting 

counsel to withdraw because there is an issue of arguable merit in the 

record. Specifically, Holloway contends he was “sentenced to an illegally 

____________________________________________

3 On January 6, 2015, the PCRA court ordered Holloway to file a concise 

statement of errors complained of on appeal. Holloway complied with the 

court’s directive, and filed a concise statement on January 23, 2015.
J-S47020-15

- 4 -

enhanced sentence” pursuant to Alleyne, supra.

4

 Holloway’s Brief at 2. 

Furthermore, he asserts this claim satisfies the newly recognized 

constitutional right exception to the PCRA’s timing requirements. For the 

reasons that follow, we disagree.

Our standard of review is well-established: 

Our standard of review of an order denying PCRA relief is 

whether the record supports the PCRA court’s determination and 

whether the PCRA court’s decision is free of legal error. The 

PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record. 

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).

In the present case, the PCRA court determined that Holloway’s 

petition was untimely filed. The PCRA mandates that any request for relief, 

“shall be filed within one year of the date the judgment becomes final[.]” 42 

Pa.C.S. §9545(b)(1). 

____________________________________________

4

In Alleyne, supra, the United States Supreme Court expanded upon its 

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and held that 

“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ 

that must be submitted to the jury and found beyond a reasonable doubt.” 

Alleyne, supra, 133 S.Ct. at 2155. Since Alleyne was decided, this Court 

has consistently invalidated our mandatory minimum sentencing statutes as 

unconstitutional. See, e.g., Commonwealth v. Newman, 99 A.3d 86 (Pa. 

Super. 2014) (en banc) (invalidating 42 Pa.C.S. § 9712.1); 

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super 2014) (invalidating 

42 Pa.C.S. §§ 9712 and 9713); Commonwealth v. Wolfe, 106 A.3d 800 

(Pa. Super. 2014) (invalidating 42 Pa.C.S. § 9718); Commonwealth v. 

Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc) (invalidating 18 Pa.C.S. 

§ 7508).
J-S47020-15

- 5 -

The PCRA’s timeliness requirements are jurisdictional; therefore, 

a court may not address the merits of the issues raised if the 

petition was not timely filed. The timeliness requirements apply 

to all PCRA petitions, regardless of the nature of the individual 

claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations 

omitted). 

Here, Holloway’s judgment of sentence became final on June 5, 2012, 

90 days after the Pennsylvania Supreme Court denied his petition for 

allocatur, and Holloway failed to petition the United States Supreme Court 

for review. See 42 Pa.C.S. § 9545(b)(3); U.S. Supreme Court Rule 13. 

Accordingly, Holloway had until June 5, 2013, to file a timely PCRA petition. 

The present petition, filed over a year later on July 3, 2014, is facially 

untimely.

Nevertheless, pursuant to Section 9545(b), an otherwise untimely 

petition is not time-barred if the petitioner pleads and proves that a timefor-filing exception applies. See 42 Pa.C.S. § 9545(b). In the present case, 

Holloway claims the “newly recognized constitutional right” exception, set 

forth in Section 9545(b)(1)(iii) saves his petition from dismissal. Section 

9545 (b)(i)(iii) provides an exception to the timing requirements if a 

peititoner pleads and proves that “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)(2)(iii) (emphasis supplied).
J-S47020-15

- 6 -

However, “neither our Supreme Court, nor the United States Supreme 

Court has held that Alleyne is to be applied retroactively to cases in which 

the judgment of sentence had become final.” Commonwealth v. Miller, 

102 A.3d 988, 995 (Pa. Super. 2014). Therefore, Alleyne does not provide 

Holloway with an exception to the PCRA’s timing requirements.5 Id.

Because we conclude (1) the only purported issue of “arguable merit” 

asserted by Holloway is, in fact, meritless, (2) Holloway’s PCRA petition was 

untimely filed, and (3) Holloway has failed to establish an exception to the 

timing requirements, we detect no basis to conclude that the PCRA court 

erred in granting counsel’s petition to withdraw and dismissing Holloway’s 

PCRA petition.6 

Order affirmed. 

____________________________________________

5

Furthermore, we note that our review of the certified record confirms the 

finding of the PCRA court that Holloway did not receive a mandatory 

minimum sentence, and, therefore, Alleyne does not apply. See PCRA 

Court Opinion, 2/23/2015, at 6-7. See also N.T., 12/21/2010, at 2, 5 

(although Holloway asked the trial court to impose the five-year mandatory 

minimum sentence on charge of possession with intent to deliver, the court 

imposed aggravated range sentence of seven to 15 years).

6 We also note PCRA counsel raised and rejected a possible Alleyne claim in 

his “no merit” letter. See “No Merit” Letter, 10/22/2014, at 2-3.
J-S47020-15

- 7 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015