J-S38024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HOWARD M. JONES,

Appellant No. 2430 EDA 2015

Appeal from the PCRA Order of June 29, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0908121-2002

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.: FILED JUNE 22, 2016

Appellant, Howard M. Jones, appeals pro se from the order entered on 

June 29, 2015 dismissing as untimely his second petition filed 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 October 2, 2003, a jury convicted Appellant of burglary, theft by 

unlawful taking, and possession of an instrument of crime. Finding Appellant 

to be a recidivist offender pursuant to 42 Pa.C.S.A. § 9714,1the trial court 

____________________________________________

1 Section 9714 provides mandatory sentencing enhancements for second 

and subsequent violent offenses. It provides, in pertinent part, that 

“[w]here the person had at the time of the commission of the current 

offense previously been convicted of two or more [] crimes of violence 

arising from separate criminal transactions, the person shall be sentenced to 

(Footnote Continued Next Page)
J-S38024-16

- 2 -

imposed an aggregate sentence of 25 to 50 years of imprisonment on 

November 24, 2003. On November 15, 2006, this Court affirmed Appellant’s 

judgment of sentence. See Commonwealth v. Jones, 915 A.2d 144 (Pa. 

Super. 2006) (unpublished memorandum). The Pennsylvania Supreme 

Court denied further review on May 15, 2007. See Commonwealth v. 

Jones, 923 A.2d 1173 (Pa. 2007).

On November 20, 2007, Appellant filed his first PCRA petition. On 

April 22, 2010, the PCRA court entered an order reinstating Appellant’s 

direct appeal rights nunc pro tunc. On appeal, this Court vacated the order 

reinstating Appellant’s direct appeal rights, since Appellant previously 

litigated a direct appeal. We, however, remanded the matter and directed 

counsel to file an amended PCRA petition to raise the issue that Appellant’s 

conviction for theft by unlawful taking should have merged with his burglary 

conviction for sentencing purposes. See Commonwealth v. Jones, 60 

A.3d 848 (Pa. Super. 2012) (unpublished memorandum). On January 9, 

2013, counsel for Appellant filed an amended PCRA petition as directed. On 

May 17, 2013, the PCRA court vacated Appellant’s sentence for theft by 

unlawful taking. The PCRA court granted no further relief and Appellant did 

not appeal.

(Footnote Continued) _______________________

a minimum sentence of at least 25 years of total confinement.” 42 Pa.C.S.A. 

§ 9714(a)(2). 
J-S38024-16

- 3 -

On August 8, 2014, Appellant filed his second pro se PCRA petition. 

After giving the requisite notice pursuant to Pa.R.Crim.P. 907, the PCRA 

court dismissed the second petition as untimely on June 29, 2015. This 

timely appeal resulted.2

On appeal, Appellant presents the following issues, pro se, for our 

review:

Did Attorney Samantha Gallagher render Appellant 

ineffective assistance of counsel, when Attorney Gallagher 

[a]mended the PCRA petition with respect to the sentence 

for theft by unlawful taking only, and where counsel 

abandoned other issues in the pro se PCRA petition?

Did Attorney Samantha Gallagher render Appellant 

ineffective assistance of counsel when PCRA counsel 

abandoned Appellant and failed to advance any of the pro 

se arguments that Appellant raised in the [pro se] PCRA 

[petition] which caused him to be time barred for his 2nd

PCRA petition?

Did PCRA counsel render Appellant ineffective assistance of 

counsel when PCRA counsel abandoned Appellant and failed 

to advance the argument that Appellant’s trial counsel, 

Rebecca Lester, was ineffective where trial counsel failed to 

independently investigate the circumstances of Appellant’s 

1989 conviction for burglary; and where trial counsel 

accepted the Commonwealth’s inaccurate assurances that, if 

convicted, Appellant would face sentence as a second strike 

offender, where the Commonwealth’s assurances were 

incorrect and Appellant actually faced sentence, and indeed 

was sentenced, as a third strike offender under [42] 

Pa.C.S.A. § 9714 to 25 to 50 years[’] imprisonment?

____________________________________________

2

 Appellant filed a notice of appeal on July 14, 2015. The PCRA court issued 

an opinion pursuant to Pa.R.A.P. 1925(a) on August 17, 2015.
J-S38024-16

- 4 -

Did the trial court err in sentencing Appellant as a third 

strike offender pursuant to [42] Pa.C.S.A. § 9714(a)(2) 

after Appellant’s conviction for F-1 burglary? (Not raised in 

the PCRA petition, but because illegal sentencing claims are 

not waived it is possible for this court to review this claim 

for the first time here).

Appellant’s Brief at 6 (unpaginated).

We shall examine all of Appellant’s issues in a single discussion as the 

claims all center on his contention that he received layered ineffective 

assistance of counsel because various attorneys representing Appellant at 

trial and on his first PCRA petition failed to challenge the imposition of a 

mandatory sentence as a third-strike offender under 42 Pa.C.S.A. § 9714. 

Appellant argues that he pled guilty to three burglaries in 1989 “on the same 

date, and was sentenced for all three burglaries at the same hearing” which 

should have amounted to “his first strike for purposes of § 9714(a)(1).” Id.

at 22. He further claims that an investigation of the record would have 

shown that one of the prior 1989 convictions stemmed from his entry into a 

private residence after armed assailants pursued him. Id. at 25. Appellant 

avers that had counsel investigated, “there was a strong probability that 

[one of the 1989] F-1 burglary offense[s] would have been reduced to a 

charge of criminal trespass[.]” Id. at 20. Accordingly, Appellant claims 

counsels’ cumulative errors caused him to reject a plea offer that resulted in 

the imposition of a mandatory sentence and he is entitled to relief.3 

____________________________________________

3

 Upon review of the record, Appellant raised an additional claim in his PCRA 

petition that the PCRA court addressed. Appellant argued that the United 

(Footnote Continued Next Page)
J-S38024-16

- 5 -

“As a general proposition, we review a denial of PCRA relief to 

determine whether the findings of the PCRA court are supported by the 

record and free of legal error.” Commonwealth v. Eichinger, 108 A.3d 

821, 830 (Pa. 2014) (bracket omitted). In this case, Appellant alternatively 

challenges the legality of the sentence he received and the reliability of trial 

counsel’s consultation regarding the range of punishments available under 

the recidivist provision of Section 9714. “[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.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. 

Super. 2007). Stated differently, “although illegal sentencing issues cannot 

be waived, they still must be presented in a timely PCRA petition.” Taylor, 

65 A.3d at 465 (citation omitted). Under Taylor, this Court may not award 

relief when presented with a meritorious sentencing claim raised in an 

untimely PCRA petition. 

(Footnote Continued) _______________________

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 

2151 (2013) announced a new constitutional right that applied to him 

retroactively in support of an exception to the one-year time bar under the 

PCRA. The PCRA court rejected Appellant’s claim. Appellant has abandoned 

that issue on appeal and we conclude it is waived. See Commonwealth v. 

Bullock, 948 A.2d 818, 823 (Pa. Super. 2008) (holding an issue identified 

on appeal but not properly developed in an appellate brief is waived). 

Regardless, we have previously determined that Alleyne is not retroactive 

and cannot serve as the basis for invoking the timeliness exception found at 

42 Pa.C.S.A. § 9545(b)(1)(iii). See Commonwealth v. Miller, 102 A.3d 

988, 995 (Pa. Super. 2014). 
J-S38024-16

- 6 -

This Court has stated:

The timeliness of a PCRA petition is a jurisdictional 

threshold and may not be disregarded in order to reach the 

merits of the claims raised in a PCRA petition that is 

untimely. Effective January 16, 1996, the PCRA was 

amended to require a petitioner to file any PCRA petition 

within one year of the date the judgment of sentence 

becomes final. A judgment of sentence 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. 

* * *

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 

[....] are met.

[4]

 A petition invoking one of these exceptions 

must be filed within sixty days of the date the claim could 

____________________________________________

4 The exceptions to the timeliness requirement are:

(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.A. §§ 9545(b)(1)(i-iii).
J-S38024-16

- 7 -

first have been presented. In order to be entitled to the 

exceptions to the PCRA's one-year filing deadline, the 

petitioner must plead and prove specific facts that 

demonstrate his claim was raised within the sixty-day time 

frame[.]

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (internal 

citations and quotations omitted). Furthermore, our Supreme Court has 

declared, “[i]t is well-settled that allegations of ineffective assistance of 

counsel will not overcome the jurisdictional timeliness requirements of the 

PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

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

May 15, 2007. Thus, his judgment of sentence became final 90 days later, 

or on August 13, 2007, after the time for seeking review with the United 

States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (providing “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[.]”); U.S. Sup.Ct. R. 13.1. (petition for writ of certiorari must be filed 

within 90 days of date that state court of last resort denies discretionary 

review). Appellant filed his most recent PCRA petition on August 8, 2014, 

almost seven years after his judgment of sentence became final. 

Accordingly, the petition was patently untimely.

Appellant does not assert that one of the Section 9545(b) exceptions 

applies to overcome the one-year time bar under the PCRA. Moreover, in 

the absence of a valid timeliness exception, neither a meritorious illegal 
J-S38024-16

- 8 -

sentencing claim nor a claim of ineffective assistance of counsel can 

overcome the jurisdictional timeliness requirement of the PCRA. Hence, we 

agree that the PCRA court lacked jurisdiction to entertain Appellant’s current 

PCRA petition.5

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2016

____________________________________________

5

 Finally, we note that although Appellant asserts that the trial court erred 

by finding he committed his third strike for Section 9714 purposes, a review 

of the certified record belies this claim. Appellant was convicted of statutory 

rape in 1983. N.T., 11/12/2003, at 12. Rape is an enumerated crime of 

violence under Section 9714 and constitutes Appellant’s first strike. See 42 

Pa.C.S.A. § 9714(g). Appellant was convicted of three burglaries in 1989. A 

burglary committed wherein a person is present at the time is also a crime 

of violence. Id. Accordingly, even if one of the three 1989 burglaries was 

committed without a person present as Appellant suggests, he does not 

challenge the other two burglary convictions for Section 9714 sentencing 

purposes. Hence, those burglaries resulted in a second strike under Section 

9714. Most recently, Appellant pled guilty to burglary in 2003 and it is 

undisputed that the victim was home at the time of the crime. That 

conviction resulted in Appellant’s third strike and the imposition of the lawful 

mandatory sentence at issue. 
J-S38024-16

- 9 -