J-S32005-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DONTAY RAYSHAW BREWER,

Appellant No. 3084 EDA 2015

Appeal from the PCRA Order October 2, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0009340-2009

BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED JUNE 21, 2016

Dontay Rayshaw Brewer appeals from the October 2, 2015 order 

dismissing his second PCRA petition as untimely filed. We affirm. 

In January 2011, a jury convicted Appellant of corrupt organizations, 

conspiracy to commit corrupt organizations, six counts of delivery of a 

controlled substance, four counts of possession of a controlled substance, 

conspiracy to violate the Controlled Substance, Drug, Device, and Cosmetic 

Act, five counts of criminal use of a communications facility, and possession 

of drug paraphernalia. Appellant was the head of a cocaine trafficking 

operation in Norristown. The evidence against Appellant and his cohorts 

included wiretaps, videotapes, and surveillance. Appellant was arrested in 

possession of 12.38 grams of cocaine, $2,500 in cash, and two cell phones. 
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Appellant was sentenced to twenty-one to sixty years imprisonment. On 

May 24, 2012, we affirmed Appellant’s judgment of sentence, 

Commonwealth v. Brewer, 50 A.3d 250 (Pa.Super. 2012) (unpublished 

memorandum), and, on January 10, 2013, our Supreme Court denied 

review. Commonwealth v. Brewer, 62 A.3d 377 (Pa. 2013). 

Appellant filed a timely PCRA petition; counsel was appointed and filed 

an amended petition. Relief was denied. Appellant appealed, claiming that 

his trial attorney was ineffective for failing to file a suppression motion and 

that his sentence, which involved application of five mandatory minimum 

sentences under 18 Pa.C.S. § 7508, was unconstitutional under Alleyne v. 

United States, 133 S.Ct. 2151 (2013).1 Commonwealth v. Brewer, 121 

A.3d 1143 (Pa.Super. 2015) (unpublished memorandum). The Alleyne

claim had not been included in either of Appellant’s PCRA petitions. 

The panel concluded that counsel was not ineffective and that the 

Alleyne contention, which pertains to the legality of a sentence, was not 

waived. We nevertheless ruled that it was not raised in a timely manner 

under 42 Pa.C.S. § 9545 because Appellant raised the Alleyne claim more 

than one year after his judgment of sentence became final. This Court 

____________________________________________

1

In Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015), § 7508 

was ruled unconstitutional under Alleyne. See also Commonwealth v. 

Hopkins, 117 A.3d 247 (Pa. 2015) (invalidating a procedurally identical 

mandatory minimum statute pursuant to Alleyne). 
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observed that § 9545 requires all PCRA claims to be raised within one year 

of when a defendant’s judgment of sentence becomes final. We noted that 

Appellant’s judgment of sentence became final under the PCRA on April 15, 

2013, and concluded that Appellant had until April 15, 2014 to raise Alleyne

under the PCRA. Since the Alleyne issue was not raised until September 

16, 2014, it was held untimely. The Brewer Court also noted that in 

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014), this Court held 

that an Alleyne issue does not fall within an exception to the PCRA’s oneyear time bar. 

On September 14, 2015, Appellant filed a second, counseled petition 

again raising the position that his sentence was unconstitutional and had to 

be vacated under Alleyne and its progeny as well as presenting an assertion 

that trial counsel was ineffective for failing to call a defense witness. The 

petition was dismissed as untimely, and this appeal followed. Appellant 

raises these issues on appeal: 

I. Whether the second PCRA petition was timely as a result 

of the application of the tolling provisions identified in 

Breakiron[, 781 A.2d 94 (Pa. 2001)]?

II. Whether the five mandatory minimum sentences 

imposed under 18 PA.C.S. [§] 7508 must be vacated because 

the sentences were imposed under a statute ruled 

unconstitutional in Hopkins[, 117 A.3d 247 (Pa. 2015)]?

III. Whether trial counsel was constitutionally ineffective 

for failing to interview Craig Cole who would have claimed 

responsibility for the 700 grams of cocaine found at Cole's 

residence?
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IV. Whether the court of common pleas has inherent 

jurisdiction to correct an illegal sentence based on an 

unconstitutional statute?

Appellant’s brief at 6. 

Initially, we note that our “standard of review of the denial of a PCRA 

petition is limited to examining whether the evidence of record supports the 

court’s determination and whether its decision is free of legal error.” 

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before 

we proceed to the merits of Appellant’s contentions, we must analyze 

whether Appellant’s September 14, 2015 PCRA petition was timely filed as 

that issue implicates our jurisdiction. Miller, supra. If a PCRA petition is 

untimely, “neither this Court nor the trial court has jurisdiction over the 

petition.” Id. at 992 (citation omitted); see Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).

Any PCRA petition, “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final” unless an 

exception to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). 

We specifically determined in Appellant’s prior PCRA appeal that his 

judgment of sentence became final on April 15, 2013, and that he had until 

April 15, 2014 to file a timely PCRA petition. The September 24, 2015 

petition is therefore untimely. 

There are three exceptions to the one-year time bar of § 9545:
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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 invoking an exception provided 

in paragraph (1) shall be filed within 60 days of the date the claim could 

have been presented.” 42 Pa.C.S. § 9545(b)(2).

Herein, Appellant first claims that the time period for filing his second 

PCRA petition was tolled during the pendency of his first PCRA petition under 

Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001). Breakiron filed a 

second PCRA petition which was dismissed as untimely. Our Supreme Court 

affirmed that holding, and nothing in the Breakiron decision states or 

implies that the time for filing a second PCRA petition is tolled by the filing of 

a first one. The above-quoted language in the PCRA is directly to the 

contrary. 

The Supreme Court decision that does apply a form of tolling is 

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000). Therein, the PCRA 

court dismissed a second petition as untimely. Lark had invoked the newly 
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discovered evidence exception to the one-year time bar. The evidence in 

question was discovered while Lark’s first PCRA petition was pending and our 

Supreme Court held that, since Lark could not file a second PCRA petition 

until the first one was resolved, he had until sixty days after litigation of the 

first PCRA petition to file the second petition invoking the newly discovered 

evidence exception to the PCRA. 

Herein, Appellant’s claims do not involve newly discovered evidence. 

He was aware of his Alleyne claim in 2014, when it was presented in the 

prior PCRA appeal. As to the position that Craig Cole should have been 

presented as a defense witness, Appellant concedes that he told counsel 

about Cole at trial and counsel should have placed him on the stand. 

Appellant’s brief at 21. Appellant therefore was aware of the witness as well 

as counsel’s failure to present Cole during his January 2011 jury trial 

proceedings. The existence of Cole and of counsel’s default thus are not 

newly discovered. 

Indeed, Appellant’s actual position as to Cole is that trial counsel was 

ineffective for failing to present him as a witness because he would have 

claimed ownership of drugs found in a stash house used by Appellant but 

owned by Cole. Claims of ineffective assistance of counsel do not overcome 

the one-year time bar of the PCRA. Commonwealth v. Wharton, 886 

A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of ineffective 

assistance of counsel will not overcome the jurisdictional timeliness 
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requirements of the PCRA.”); see also Commonwealth v. GamboaTaylor, 753 A.2d 780 (Pa. 2000) (analyzing supposed newly discovered 

evidence claim and recognizing that it actually was a position that prior 

counsel was ineffective); Commonwealth v. Bronshtein, 752 A.2d 868 

(Pa. 2000) (after-discovered evidence exception not satisfied by allegation 

that facts which form basis of claim were not knowable until present counsel 

advised defendant); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) 

(same). We therefore reject Appellant’s position that his claim as to Cole is 

timely. 

Appellant presents identical concepts in issues two and four. In 

essence, his averment is that his mandatory minimum sentences were 

imposed under an unconstitutional statute and must be vacated since courts 

retain the inherent jurisdiction to correct illegal sentences and such claims 

cannot be waived. Appellant is mistaken in his assertion that the courts 

retain jurisdiction indefinitely to correct an illegal sentence. Our Supreme 

Court has held specifically that, “Although legality of sentence is always 

subject to review within the PCRA, claims must still first satisfy the PCRA's 

time limits or one of the exceptions thereto.” Commonwealth v. Fahy, 

737 A.2d 214, 223 (Pa. 1999); see also Commonwealth v. Jackson, 30 

A.3d 516 (Pa.Super. 2011).

In Miller, supra, which was applied in Appellant’s previous appeal, we 

specifically held that, since Alleyne has not been held to be retroactive by 
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either our Supreme Court or the United States Supreme Court, it does not 

fall within the newly-recognized-constitutional-right exception to § 

9545(b)(1). Miller, supra. Miller ruled that the defendant’s sentence, 

which was also unconstitutional under Alleyne, could not be corrected in an 

untimely PCRA petition. Miller is controlling herein.2

Having determined that the present PCRA petition was untimely, we 

affirm the denial of PCRA relief. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2016

____________________________________________

2

 Indeed, Alleyne has yet to be held applicable retroactively to defendants 

whose sentences were final prior to its June 17, 2013 filing date. In 

Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), we ruled that 

Alleyne did not apply retroactively so as to afford relief in the postconviction setting. The question of Alleyne’s retroactively is now pending in 

an en banc case involving a timely filed PCRA petition. Commonwealth v. 

Ciccone, 3114 MDA 2014.