J-S26013-17

* Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

DEWAYNE LAMONT ELLERBY

Appellant No. 1884 MDA 2016

Appeal from the PCRA Order October 31, 2016

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003728-1996

CP-06-CR-0003729-1996

BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

JUDGMENT ORDER BY BOWES, J.: FILED JULY 14, 2017

Dewayne Ellerby appeals from the order denying his PCRA petition as 

untimely. We affirm.

We previously set forth the factual history in our memorandum 

denying Appellant’s pursuit of direct appeal relief. Briefly stated, Appellant 

and his male co-defendant engaged in a crime spree on the evening of 

August 28, 1996, in which the two men attempted to abduct a German 

tourist, kidnapped another woman, shot at the woman when she was able to 

flee, and engaged in a high speed pursuit with a police officer who had 

spotted their vehicle. See Commonwealth v. Ellerby, 718 A.2d 856 (Pa. 

Super. 1998) (unpublished memorandum). As a result, Appellant was 

charged with dozens of crimes. Following a jury trial, Appellant was 
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convicted of multiple crimes and was sentenced to an aggregate period of 

fifteen to thirty years incarceration, which included some mandatory 

minimum sentences. 

Appellant sought relief with this Court on direct appeal, which we 

denied by unpublished memorandum filed May 22, 1998. Id. Appellant did 

not seek further review with our Supreme Court. He sought PCRA relief on 

four prior occasions, one of which was dismissed on appeal for failing to file 

a brief. The other three were denied for various reasons. See 

Commonwealth v. Ellerby, 817 A.2d 1176 (Pa. Super. 2002) (unpublished 

memorandum); Commonwealth v. Ellerby, 855 A.2d 130 (Pa.Super. 

2004) (unpublished memorandum); Commonwealth v. Ellerby, 880 A.2d 

5 (Pa.Super. 2005) (unpublished memorandum).

The instant petition seeking PCRA relief was docketed on March 16, 

2016. The PCRA court issued a notice of intent to dismiss, and, on October 

31, 2016, dismissed the petition as untimely. Appellant and the PCRA court 

complied with Pa.R.A.P. 1925 and the matter is ready for our review. 

Appellant presents two issues for our consideration. 

I. Whether the United States Supreme Court case 

Montgomery v. Louisiana . . . has rendered a new 

executive decision that applies to all cases of substantive 

rules of constitutional law. Thereby, making it 

“constitutionally” permissible, by due process of law, for a 

defendant to raise said claim where application applies 

under U.S.C.A. 5th, 8th, and 14th.
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II. Whether the ruling within Montgomery . . . gives 

retroactive effect to [Alleyne], when involving new 

watershed procedural rules and substantive rules of 

constitutional law of which applies to a defendant.

Appellant’s brief at 3. 

It is well-settled that all PCRA petitions must be filed within one year 

of the date a defendant’s judgment of sentence becomes final, unless an 

exception applies. 42 Pa.C.S. § 9545(b)(1). The time-bar is jurisdictional in 

nature; therefore, “when a PCRA petition is untimely, neither this Court nor 

the trial court has jurisdiction over the petition.” Commonwealth v. 

Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation and quotation marks 

omitted). Timeliness presents a question of law, which we review de novo

and our scope of review is plenary. Commonwealth v. Hudson, 156 A.3d 

1194, 1197 (Pa.Super. 2017).

Appellant’s attempt to circumvent the time bar relied upon § 

9545(b)(1)(iii), which confers jurisdiction when the Supreme Court of the 

United States or Pennsylvania have recognized the retroactive application of 

a new constitutional right. Appellant relies upon Louisiana v. 

Montgomery, 136 S.Ct. 718 (2016), as satisfying that statute. 

That case did indeed announce a new retroactive right, but its holding 

is limited to Miller v. Alabama, 567 U.S. 460 (2012), which determined 

that it is unconstitutional to impose a mandatory sentence of life 

imprisonment without the possibility of parole for crimes committed while 
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the defendant was a juvenile. Miller has no applicability to Appellant, as he 

was not sentenced to a mandatory sentence of life imprisonment without 

parole nor was he a juvenile when he committed his crimes. Instead, his 

PCRA claim pertains to Alleyne v. United States, 133 S.Ct. 2151 (2013), 

which held that a jury must find beyond a reasonable doubt any facts that 

increase a mandatory minimum sentence. 

There is no doubt that Alleyne is not to be applied retroactively in the 

PCRA setting and it fails to trigger the § 9545(b)(1)(iii) exception. 

Commonwealth v. Washington, 142 A.3d 810, 818 (Pa. 2016). 

Therefore, the PCRA court correctly determined that it lacked jurisdiction to 

address Appellant’s petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2017