J-S41012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WENDELL F. JOHNSON,

Appellant No. 3227 EDA 2015

Appeal from the PCRA Order Entered September 18, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1238161-1990

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 14, 2016

Appellant, Wendell F. Johnson, appeals pro se from the September 18, 

2015 order denying, as untimely, his petition under the Post Conviction 

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

The facts of Appellant’s underlying convictions are not necessary to 

our disposition of his appeal. The PCRA court briefly summarized the 

pertinent procedural history of Appellant’s case, as follows:

On September 17, 1992, [Appellant] was sentenced to 65 

to 130 years’ incarceration for five counts of robbery as a felony 

[of] the first degree, two counts of conspiracy and two counts of 

possession of an instrument of crime by the Honorable Marvin 

Halbert. After [Appellant] filed an appeal, the Superior Court 

remanded the case for re-sentencing on the grounds that the 

trial court had not referenced the applicable guidelines for the 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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crimes for which [Appellant] was convicted.1 Thereafter, 

[Appellant] filed another appeal which was dismissed due to the 

failure of his lawyer to file a brief. [Appellant] then filed a 

petition under the [PCRA] and his appellate rights were 

reinstated, but the Superior Court declined to consider the issue 

of the appropriateness of [Appellant’s] sentence, and the 

Pennsylvania Supreme Court denied allocatur on February 1, 

2000. [See Commonwealth v. Johnson, 742 A.2d 205 (Pa. 

Super. 1999) (unpublished memorandum), appeal denied, 751 

A.2d 186 (Pa. 2000).] [Appellant’s] judgment became final 

ninety days thereafter when his ability to file for discretionary 

review in the United States Supreme Court had expired.

1

[Appellant] was subsequently re-sentenced on May 29, 

1996, and received the same 65 to 130 years’ 

incarceration.

[Appellant’s] next [PCRA] petition was filed on February 

26, 2001, wherein counsel was appointed to represent [him]. 

Counsel then filed a letter pursuant to Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988), and this court 

dismissed the petition based on a lack of merit.

The instant PCRA petition ... was filed on June 24, 2015, 

and a [Pa.R.Crim.P.] 907 Notice of Intent to Dismiss was mailed 

to [Appellant] on August 18, 2015. 

PCRA Court Opinion, 9/18/15, at 1-2 (one footnote omitted).

Appellant did not respond to the PCRA court’s Rule 907 notice, and on 

September 18, 2015, the court issued an order, and an accompanying 

opinion, dismissing his petition as being untimely filed. Appellant filed a 

timely, pro se notice of appeal. The court did not order him to file a 

Pa.R.A.P. 1925(b) statement, nor did the court draft a Rule 1925(a) opinion, 

presumably because it set forth its rationale for denying Appellant’s petition 

in its September 18, 2015 opinion, quoted supra. Herein, Appellant presents 

one question for our review: “Did the Honorable PCRA [c]ourt err when it 

dismissed [Appellant’s] PCRA Petition without a hearing, and where ... 
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[Appellant] pled and would have been able to prove that the [c]ourt imposed 

an illegal sentence[?]” Appellant’s Brief at 2.

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. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 

timeliness of Appellant’s petition, because the PCRA time limitations 

implicate our jurisdiction and may not be altered or disregarded in order to 

address the merits of a petition. Commonwealth v. Bennett, 930 A.2d 

1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction 

relief, including a second or subsequent one, must be filed within one year of 

the date the judgment of sentence becomes final, unless one of the following 

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

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

or subsequent petition, shall be filed within one year 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 
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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 one of 

these exceptions “shall be filed within 60 days of the date the claim could 

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

Here, Appellant’s judgment of sentence became final on May 1, 2000, 

ninety days after the Pennsylvania Supreme Court denied his petition for 

allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that 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) (directing that under the PCRA, petitioner’s 

judgment of sentence becomes final ninety days after our Supreme Court 

rejects his or her petition for allowance of appeal since petitioner had ninety 

additional days to seek review with the United States Supreme Court). 

Consequently, Appellant’s current petition, filed in June of 2015, is patently 

untimely, and for this Court to have jurisdiction to review the merits thereof, 

Appellant must prove that he meets one of the exceptions to the timeliness 

requirements set forth in 42 Pa.C.S. § 9545(b). 

In his petition, and on appeal, Appellant argues that several 

mandatory minimum sentences imposed in his case are illegal under 

Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the United 

States Supreme Court held that “facts that increase mandatory minimum 

sentences must be submitted to the jury” and found beyond a reasonable 
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doubt. Alleyne, 133 S.Ct. at 2163. Presumably, Appellant’s reliance on 

Alleyne is an effort to satisfy the ‘new constitutional right’ exception of 

section 9545(b)(1)(iii). His attempt do so, however, fails outright because 

Alleyne was decided on June 17, 2013, and Appellant’s petition was not 

filed until June 24, 2015, over two years later. Consequently, Appellant has 

not satisfied the 60-day requirement of section 9545(b)(2).

Nevertheless, we also note that Appellant’s reliance on Alleyne cannot 

satisfy the ‘new constitutional right’ exception of section 9545(b)(1)(iii). In 

Commonwealth v. Abul-Salaam, 812 A.2d 487 (Pa. 2002), our Supreme 

Court stated:

Subsection (iii) of Section 9545 [(b)(1)] has two requirements. 

First, it provides that the right asserted is a constitutional right 

that was recognized by the Supreme Court of the United States 

or this court after the time provided in this section. Second, it 

provides that the right “has been held” by “that court” to apply 

retroactively. Thus, a petitioner must prove that there is a “new” 

constitutional right and that the right “has been held” by that 

court to apply retroactively. The language “has been held” is in 

the past tense. These words mean that the action has already 

occurred, i.e., “that court” has already held the new 

constitutional right to be retroactive to cases on collateral 

review. By employing the past tense in writing this provision, the 

legislature clearly intended that the right was already recognized 

at the time the petition was filed.

Id. at 501.

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

Court held that Alleyne does not meet the second requirement of section 

9545(b)(1)(iii), stating:
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Even assuming that Alleyne did announce a new constitutional 

right, 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. This is fatal to Appellant's argument regarding the 

PCRA time-bar. This Court has recognized that a new rule of 

constitutional law is applied retroactively to cases on collateral 

review only if the United States Supreme Court or our Supreme 

Court specifically holds it to be retroactively applicable to those 

cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa. 

Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012), 

citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 

L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor, 

933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes 

of subsection (iii), the language ‘has been held by that court to 

apply retroactively’ means the court announcing the rule must 

have also ruled on the retroactivity of the new constitutional 

right, before the petitioner can assert retroactive application of 

the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715, 

951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy 

the new constitutional right exception to the time-bar.

Id. at 995. Since Miller, neither our Supreme Court, nor the United States 

Supreme Court, has held that Alleyne applies retroactively. Thus, Alleyne 

still cannot be the basis for application of the timeliness exception of section 

9545(b)(1)(iii).1

We acknowledge that since Alleyne, this Court has issued a line of 

cases deeming mandatory minimum sentencing statutes unconstitutional. 

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

we held that the mandatory sentencing provision under which Appellant was 

____________________________________________

1 Obviously, if at some point our Supreme Court or the United States 

Supreme Court expressly holds that Alleyne does apply retroactively, 

Appellant will have 60 days from the date of that decision to file a PCRA 

petition reasserting the exception set forth in section 9545(b)(1)(iii).
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sentenced, 42 Pa.C.S. § 9712 (Sentences for offenses committed with 

firearms), is unconstitutional in its entirety in light of Alleyne and this 

Court’s en banc decision in Commonwealth v. Newman, 99 A.3d 86 (Pa. 

Super. 2014) (en banc) (holding that one mandatory minimum sentencing 

provision, 42 Pa.C.S. § 9712.1, is unconstitutional, in its entirety, in light of 

Alleyne). “It is also well-established that ‘[i]f no statutory authorization 

exists for a particular sentence, that sentence is illegal and subject to 

correction.’” Commonwealth v. Fennell, 105 A.3d 13, 16 (Pa. Super. 

2014) Id. (quoting Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. 

Super. 2014) (citation omitted)). Arguably, then, Appellant’s sentence, 

imposed under a now-unconstitutional sentencing statute, is illegal. 

However, because Appellant’s PCRA petition is untimely, and he has 

not satisfied a timeliness exception, we do not have jurisdiction to correct

that illegal sentence. See Commonwealth v. Fahy, 737 A.2d 214, 222 

(Pa. 1999) (“[A]lthough a legality of sentence is always subject to review 

within the PCRA, claims must first satisfy the PCRA’s time limits or one of 

the exceptions thereto.”); Commonwealth v. Fowler, 930 A.2d 586, 592 

(Pa. Super. 2007) (“[A] court may entertain a challenge to the legality of the 

sentence so long as the court has jurisdiction to hear the claim. In the PCRA 

context, jurisdiction is tied to the filing of a timely PCRA petition.”). Thus, 

we affirm the PCRA court’s denial of Appellant’s untimely petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2016