J-S10044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ERIC NIGEL TAULTON,

Appellant No. 2549 EDA 2015

Appeal from the PCRA Order August 4, 2015

in the Court of Common Pleas of Montgomery County

Criminal Division at No.: CP-46-CR-0004611-2003

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 19, 2016

Appellant, Eric Nigel Taulton, appeals pro se from the order of August 

4, 2015, denying his fourth petition filed pursuant to the Post Conviction 

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

On September 24, 2004, a jury convicted Appellant of corrupt 

organizations, criminal conspiracy, multiple counts of criminal use of a 

communications facility, and three counts of delivery of cocaine in an 

amount of at least 100 grams.1 On December 8, 2004, the trial court 

sentenced Appellant to an aggregate term of incarceration of not less than 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 911(b), 903, 7512, and 35 P.S. § 780-113(a)(30), 

respectively. 
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twenty-one nor more than forty-two years. On May 2, 2006, this Court 

affirmed the judgment of sentence, and the Pennsylvania Supreme Court 

denied leave to appeal on December 13, 2006. (See Commonwealth v. 

Taulton, 903 A.2d 54 (Pa. Super. 2006) (unpublished memorandum), 

appeal denied, 912 A.2d 1292 (Pa. 2006).

Subsequently, Appellant filed three PCRA petitions. The PCRA court 

dismissed each petition, and this Court affirmed their dismissals on appeal.

On October 16, 2014, Appellant filed the instant, pro se, fourth PCRA 

petition. On June 10, 2015, the PCRA court filed a Rule 907 notice of its 

intention to dismiss Appellant’s PCRA petition. See Pa.R.Crim.P. 907(1). On 

July 15, 2015, Appellant filed a response. On August 4, 2015, the PCRA 

court dismissed Appellant’s fourth PCRA petition. Appellant timely 

appealed.2 

Appellant raises one question for this Court’s review:

I. Is the Appellant’s sentence a nullity in light of this 

Court’s ruling in Commonwealth v. Newman[, 99 A.3d 

86, 103 (Pa. Super. 2014) (en banc), appeal denied, 121 

A.3d 496 (Pa. 2015),] in which the mandatory sentencing 

statutes have been found to be facially unconstitutional?

(Appellant’s Brief, at 7) (most capitalization omitted).

____________________________________________

2 Appellant filed a timely concise statement of errors raised on appeal 

pursuant to the court’s order on September 2, 2015. See Pa.R.A.P. 

1925(b). The PCRA court filed an opinion on September 15, 2015. See

Pa.R.A.P. 1925(a).
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Our standard of review for an order denying PCRA relief is well-settled:

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Great deference is granted to the findings of the PCRA court, and 

these findings will not be disturbed unless they have no support 

in the certified record. 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a 

trial court has no jurisdiction to entertain the petition.” Commonwealth v. 

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). 

Here, Appellant filed his fourth PCRA petition on October 16, 2014. 

The PCRA provides that “[a]ny petition under this subchapter, including a 

second or subsequent petition, shall be filed within one year of the date the 

judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s 

judgment of sentence became final on March 13, 2007, ninety days after the 

Pennsylvania Supreme Court denied leave to appeal and Appellant did not 

file a petition for a writ of certiorari with the United States Supreme Court. 

See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had 

one year, until March 13, 2008, to file a timely PCRA petition. Because 

Appellant did not file his current petition until October 16, 2014, the petition 

is facially untimely. Thus, he must plead and prove that he falls under one 

of the exceptions at Section 9545(b) of the PCRA. See 42 Pa.C.S.A. § 

9545(b)(1).
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Section 9545 provides that the court can still consider an untimely 

petition where the petitioner successfully 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. 

Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any 

of the above exceptions must file the petition “within [sixty] days of the date 

the claim could have been presented.” Id. at § 9545(b)(2). The 

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s 

burden to plead and prove that one of the above-enumerated exceptions 

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 

(Pa. 2008), cert. denied, 555 U.S. 916 (2008). 

Here, however, Appellant contends that he does not need to 

demonstrate timeliness because his sentence is a legal nullity. (See

Appellant’s Brief, at 10-13). He further claims all arguments about whether 

or not the United States Supreme Court’s decision in Alleyne v. United 

States, 133 S.Ct. 2151 (2013), and this Court’s decision in Newman, 

supra, apply retroactively to cases on collateral review are somehow 
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irrelevant. (See Appellant’s Brief, at 10-13). In essence, he appears to 

state that because the laws that he was sentenced under are void ab initio, 

his sentence is unconstitutional because it is as if the offense for which the 

jury convicted him never existed. (See id.). We disagree. 

Firstly, the fact that Appellant challenges the legality of sentence, 

claiming his sentence is a legal nullity, does not allow him to evade the 

PCRA’s timeliness requirements. In Commonwealth v. Fahy, 737 A.2d 

214 (Pa. 1999), the Pennsylvania Supreme Court rejected this contention. 

The Fahy Court stated, “[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.” Fahy, supra at 223 (citation omitted). 

Thus, Appellant cannot evade the PCRA timeliness requirements based on a 

claim of an illegal sentence. See id. 

In any event, Appellant fails to point to a single case in which this 

Court has applied either Alleyne or Newman to cases on collateral review. 

(See Appellant’s Brief, at 10-13). On the contrary, this Court has clearly 

stated that Alleyne does not apply on collateral review:

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. 
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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). 

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Since 

Miller, neither our Supreme Court nor the United States Supreme Court has 

held that Alleyne applies retroactively. Appellant’s claim that his sentence 

is a legal nullity and that upholding his sentence is in conflict with Newman, 

is simply without any relevant legal support. See Miller, supra at 995; see 

also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015) 

(holding “Alleyne is not entitled to retroactive effect in th[e] PCRA 

setting.”).

Here, Appellant was sentenced in 2004. His judgment of sentence 

became final in early 2007. Thus, this matter is clearly on collateral review, 

and his PCRA is facially untimely. Because Alleyne does not apply 

retroactively to cases on collateral review, it cannot afford Appellant relief. 

See Riggle, supra at 1067; Miller, supra at 995. Thus, the PCRA court 

properly found that Appellant’s PCRA petition was untimely with no statutory 

exception applying. See Hutchins, supra at 53.

Order affirmed. 

President Judge Gantman joins the Memorandum.
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President Judge Emeritus Bender concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016