J-S17015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BAKARI JVONNE THOMAS,

Appellant No. 3135 EDA 2016

Appeal from the PCRA Order of August 31, 2016

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0003663-2009

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 12, 2017

Appellant, Bakari Jvonne Thomas, appeals from the order entered on 

August 31, 2016, dismissing as untimely his second petition pursuant to the 

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

We briefly summarize the facts and procedural history of this case as 

follows. On August 17, 2009, Appellant and his co-defendant robbed a 

victim at gunpoint in the victim’s home. Appellant’s co-defendant pistolwhipped the victim, rendering him unconscious. When the victim awoke, he 

required hospitalization for a concussion and stitches for a head wound. On 

September 29, 2010, a jury convicted Appellant of conspiracy, aggravated 
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assault, and two counts of robbery.1 Thereafter, the trial court also 

convicted Appellant of persons not to possess a firearm.2 

At the sentencing hearing, the trial court determined that Appellant 

had a prior assault conviction from Texas and that this adult conviction 

constituted a predicate crime of violence under 42 Pa.C.S.A. § 9714.3 On 

February 3, 2011, the trial court sentenced Appellant to an aggregate term 

of 15 to 30 years of imprisonment. More specifically, the trial court 

sentenced Appellant to a mandatory term of 10 to 20 years of incarceration 

for aggravated assault and a consecutive term of five to 10 years of 

imprisonment for persons not to possess a firearm. The trial court imposed 

terms of 10 to 20 years of imprisonment for conspiracy and one count of 

robbery, each to be served concurrently to his aggravated assault 

conviction. The remaining robbery conviction merged with the other for 

sentencing purposes. 

We affirmed Appellant’s judgment of sentence on January 3, 2012. 

Commonwealth v. Thomas, 43 A.3d 511 (Pa. Super. 2012) (unpublished 

____________________________________________

1

 18 Pa.C.S.A. §§ 903, 2702(a)(1), and 3701(a)(1), respectively. 

2

 18 Pa.C.S.A. § 6105.

3

“Any person who is convicted in any court of this Commonwealth of a crime 

of violence shall, if at the time of the commission of the current offense the 

person had previously been convicted of a crime of violence, be sentenced to 

a minimum sentence of at least ten years of total confinement[.]” 42 

Pa.C.S.A. § 9714 (a).
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memorandum). On June 27, 2012, our Supreme Court denied further 

review. Commonwealth v. Thomas, 47 A.3d 847 (Pa. 2012). 

On June 10, 2010, Appellant filed a pro se PCRA petition. Counsel was 

appointed, but the trial court later granted counsel’s “no-merit” letter and 

petition for leave to withdraw as counsel pursuant to Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 

213 (Pa. Super. 1988) (en banc). On October 1, 2013, pursuant to 

Pa.R.Crim.P. 907, the PCRA court gave Appellant notice of its intent to 

dismiss the PCRA petition without an evidentiary hearing. Despite receiving 

an extension of time to file a response, Appellant did not file one. On April 

11, 2014, the PCRA court dismissed Appellant’s first PCRA petition. 

Appellant did not appeal that determination.

On March 28, 2016, Appellant filed a pro se motion to correct an illegal 

sentence. The PCRA court treated this motion as a second PCRA petition.4 

On April 19, 2016, the PCRA court ordered the Commonwealth to file an 

answer. The Commonwealth complied on May 25, 2016. On August 9, 

2016, the PCRA court gave Appellant notice of its intent to dismiss the PCRA 

petition without an evidentiary hearing pursuant to Pa.R.Crim.P. 907. 

____________________________________________

4

 Appellant does not challenge the PCRA court’s characterization of the 

motion as a PCRA petition. Regardless, this Court has held that “a 

defendant's motion to correct his illegal sentence [is] properly addressed as 

a PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 

2013).
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Appellant did not respond. On August 31, 2016, the PCRA court entered an 

order dismissing Appellant’s PCRA petition as untimely. This timely pro se 

appeal resulted.5

On appeal, Appellant presents the following issues for our review:

1. Did the trial court err or abuse its discretion where it [] 

improperly enhance[d] [Appellant’s] sentence pursuant 

to 42 Pa.C.S.[A.] § 9714, using a prior juvenile 

adjudication as a second strike[?]

2. Did the trial [c]ourt lack the necessary subject matter 

jurisdiction to enhance [Appellant’s] sentence pursuant 

to an inapplicable statute[?]

Appellant’s Brief at 4.

Our standard of review is clear:

In reviewing the denial of PCRA relief, we examine whether 

the PCRA court's determination is supported by the record 

and free of legal error. The scope of review is limited to the 

findings of the PCRA court and the evidence of record, 

viewed in the light most favorable to the prevailing party at 

____________________________________________

5

 The Clerk of Courts of the Court of Common Pleas of Chester County sent 

the order dismissing Appellant’s PCRA petition by certified mail on 

September 2, 2016. Thus, Appellant had until October 3, 2016 to file a 

timely notice of appeal. See Pa.R.A.P. 108(a)(1) (day of entry of an order 

shall be the day the clerk of courts mails or delivers copies of the order to 

the parties; see also Pa.R.A.P. 903(a) (notice of appeal shall be filed within 

30 days after the entry of the order from which the appeal is taken); see 

also 1 Pa.C.S.A. § 1908 (whenever the last day of the appeal period falls on 

a weekend, such day shall be omitted from the computation of time). Here, 

Appellant dated his notice of appeal September 27, 2016 and it was 

time-stamped on October 3, 2016. Hence, it was timely. On October 18, 

2016, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) 

relying largely upon its rationale in its August 9, 2016 Rule 907 notice and 

August 31, 2016 order dismissing the PCRA petition. 
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the trial level. It is well-settled that a PCRA court's 

credibility determinations are binding upon an appellate 

court so long as they are supported by the record. However, 

this Court reviews the PCRA court's legal conclusions de 

novo. 

We also note that a PCRA petitioner is not automatically 

entitled to an evidentiary hearing. We review the PCRA 

court's decision dismissing a petition without a hearing for 

an abuse of discretion. The right to an evidentiary hearing 

on a post-conviction petition is not absolute. It is within the 

PCRA court's discretion to decline to hold a hearing if the 

petitioner's claim is patently frivolous and has no support 

either in the record or other evidence.

* * *

Before we may address the merits of Appellant's arguments, 

we must first consider the timeliness of Appellant's PCRA 

petition because it implicates the jurisdiction of this Court 

and the PCRA court. Pennsylvania law makes clear that 

when a PCRA petition is untimely, neither this Court nor the 

trial court has jurisdiction over the petition. The period for 

filing a PCRA petition is not subject to the doctrine of 

equitable tolling; instead, the time for filing a PCRA petition 

can be extended only if the PCRA permits it to be extended. 

This is to accord finality to the collateral review process. 

However, an untimely petition may be received when the 

petition alleges, and the petitioner proves, that any of the 

three limited exceptions to the time for filing the petition, 

set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are 

met. 

The PCRA provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings

* * *

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year 
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of the date the judgment becomes final, unless the

petition alleges and the petitioner proves that:

(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.

(2) 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.A. § 9545(b).

Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014) 

(original quotations, brackets, and most citations omitted).

A PCRA petition is timely if it is “filed within one year of the date the 

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A] 

judgment becomes final at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.” 42 Pa.C.S.A. § 9545(b)(3).

Here, our Supreme Court denied further review of Appellant’s direct 

appeal on June 27, 2012. Thus, Appellant's judgment of sentence became 
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final 90 days later, or on September 25, 2012, when the time for seeking 

discretionary review with the United States Supreme Court expired. See

U.S. Supreme Court Rule 13. Hence, Appellant’s current PCRA petition, filed 

on March 28, 2016, was patently untimely.

On appeal to this Court, Appellant first claims that a trial court never 

relinquishes its jurisdiction to correct an illegal sentence. Appellant’s Brief at 

8, 12. However, Pennsylvania courts have consistently concluded that, 

“[a]lthough 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. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) 

(internal citation omitted).

In his PCRA petition, Appellant relied upon two United States Supreme 

Court decisions, Montgomery v. Louisiana, 136 S.Ct. 718 (2016) and 

Alleyne v. United States, 133 S.Ct. 2151 (2013,) to support his claim that 

new constitutional rights entitled him to relief on his illegal sentencing claim. 

In Montgomery, the United States Supreme Court reexamined its decision 

in Miller v. Alabama, 132 S.Ct. 2455 (2012), wherein “the [Miller] Court 

held that a juvenile convicted of a homicide offense could not be sentenced 

to life in prison without parole absent consideration of the juvenile's special 

circumstances in light of the principles and purposes of juvenile sentencing.” 
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Montgomery, 136 S.Ct. at 725.6 In particular, Montgomery considered 

“whether [the Miller] holding [wa]s retroactive to juvenile offenders whose 

convictions and sentences were final when Miller was decided.” Id. The 

Montgomery Court recognized that a “new constitutional rule of criminal 

procedure does not apply, as a general matter, to convictions that were final 

when the new rule was announced.” Montgomery, 136 S.Ct. at 728. 

Whereas, “new substantive rules are [] retroactive.” Id. at 730. The 

Montgomery Court noted,

Substantive rules [] set forth categorical constitutional 

guarantees that place certain criminal laws and 

punishments altogether beyond the State's power to 

impose. It follows that when a State enforces a proscription 

or penalty barred by the Constitution, the resulting 

conviction or sentence is, by definition, unlawful. Procedural 

rules, in contrast, are designed to enhance the accuracy of 

a conviction or sentence by regulating the manner of 

determining the defendant's culpability. Those rules merely 

raise the possibility that someone convicted with use of the 

invalidated procedure might have been acquitted otherwise. 

Even where procedural error has infected a trial, the 

resulting conviction or sentence may still be accurate; and, 

by extension, the defendant's continued confinement may 

still be lawful. For this reason, a trial conducted under a

procedure found to be unconstitutional in a later case does 

not, as a general matter, have the automatic consequence 

of invalidating a defendant's conviction or sentence.

Id. at 729–730 (internal citations and quotations omitted). 

____________________________________________

6 Because Appellant did not receive a life sentence and there is no dispute 

that Appellant was an adult in 2009 when the crimes at issue were 

committed, Montgomery and Miller are not directly applicable to Appellant.
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Here, Appellant claimed in his PCRA petition that “Montgomery

explicitly makes Alleyne[] retroactive.” Pro Se PCRA Petition, 3/28/2016, at 

4. We disagree with Appellant’s declaration. “Alleyne held that any fact 

that, by law, increases the penalty for a crime must be treated as an 

element of the offense, submitted to a jury, rather than a judge, and found 

beyond a reasonable doubt.” Commonwealth v. Washington, 142 A.3d 

810, 812 (Pa. 2016), citing Alleyne, 133 S.Ct. at 2163. Our Pennsylvania 

Supreme Court ultimately determined that the rule announced in Alleyne

was procedural and “does not apply retroactively to cases pending on 

collateral review.” Id. at 819-820. Thus, Appellant cannot rely upon 

Alleyne as a newly recognized constitutional right exception to timeliness 

under the PCRA.

Finally, this Court has recently

considered the constitutionality of Section 9714 in 

Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015). 

In Reid, this Court acknowledged that the Alleyne decision 

retained [a narrow] exception for prior convictions. Reid, 

117 A.3d at 784. The Reid Court held that Section 9714 is 

not unconstitutional because it increases mandatory 

minimum sentences based on prior convictions. Reid, 117 

A.3d at 785.

Commonwealth v. Furness, 2016 WL 7406808, at *6 (Pa. Super. 2016). 

We note, however, that the Pennsylvania Supreme Court recently granted an 

allowance of appeal to consider the constitutionality of mandatory minimum 

sentences imposed pursuant to Section 9714. See Commonwealth v. 

Bragg, 133 A.3d 328 (Pa. Super. 2016), appeal granted, 143 A.3d 890 (Pa. 
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2016). Until our Supreme Court renders a decision in Bragg, we are bound 

by the Reid Court’s finding that Section 9714 is constitutional. See

Commonwealth v. Slocum, 86 A.3d 272, 278 n. 9 (Pa. Super. 2014) 

(“This Court is bound by existing precedent under the doctrine of stare 

decisis and continues to follow controlling precedent as long as the decision 

has not been overturned by our Supreme Court.”).

As Appellant’s current PCRA petition is patently untimely and not 

subject to an exception, the PCRA court was without jurisdiction to entertain 

the merits of Appellant’s claims. Accordingly, the PCRA court properly 

dismissed Appellant’s second PCRA petition.

Order affirmed. 

 Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2017
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