J-S72013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUDAH O. O. JAMISON,

Appellant No. 3427 EDA 2016

Appeal from the PCRA Order Entered October 11, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0305821-2006

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

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 20, 2018

Appellant, Judah O. O. Jamison, appeals from the post-conviction 

court’s October 11, 2016 order denying, as untimely, his second petition 

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

affirm.

We need not reproduce the facts and procedural history of this case, 

which are summarized by the PCRA court in its Pa.R.A.P. 1925(a) opinion. 

See PCRA Court Opinion (PCO), 3/21/17, at 1-3. We only note that, in this 

timely appeal, Appellant argues that a mandatory minimum sentence applied 

in his case is illegal under Alleyne v. United States, 133 S.Ct. 2151, 2163 

(2013) (holding that “facts that increase mandatory minimum sentences 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S72013-17

- 2 -

must be submitted to the jury” and found beyond a reasonable doubt). In 

its opinion, the PCRA court cogently discusses why Appellant cannot rely on 

Alleyne, or its progeny, to overcome the one-year time-bar of the PCRA. 

See PCO at 3-9. Therefore, we adopt the trial court’s opinion as our own, 

and affirm the order denying Appellant’s PCRA petition for the reasons set 

forth therein.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/20/2018
Circulated 02/05/2018 02:05 PM

COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

CRIMINAL TRIAL DIVISION 

COMMONWEALTH OF PENNSYL V Al\11A 

v. 

Received 

MAR 21 2017 

Office of Judicial Records 

Appeals/Post Trial 

JUDAH JAMISON 

LEON W. TUCKER, S.J. 

I\ I\ 1111 \ I I\ I 11111\ I\ 1111 

. 7921_784791 . . 

OPINION 

CP-Sl-CR-0305821-2006 

3427 EDA 2016 

DATE: March 21, 2017 

This matter comes before the Superior Court following the dismissal of a Post-Conviction 

I 

Relief Act ("PCRA")

1 petition filed by Judah Jamison (hereafter "Petitioner"). 

I. Facts and Procedural History 

On March 5, 2007, the Petitioner entered an open guilty plea on the charges of involuntary 

deviate sexual intercourse by forcible compulsion/ unlawful contact with minor;' statutory sexual 

assault," and corruption of minors before this court.

5 On June 13, 2007, this court sentenced 

Petitioner to an aggregate sentence of six (6) to twelve (12) years of incarceration followed by ten 

(10) yea.rs of probation. The Petitioner was subject to a mandatory minimum sentence for the 

conviction of involuntary deviate sexual intercourse with a victim that was less than sixteen (16) 

years of age, pursuant to 42 Pa. Cons. Stat. § 9718 (held unconstitutional by Commonwealth v. 

Wolfe, 140 A.3d 651 (Pa. 2016)). Petitioner filed a post-sentence motion for reconsideration of 

1 42 Pa. Cons. Stat. §§ 9541-9546. 

2 18 Pa. Cons. Stat.§ 3123(a)(l). 

3 18 Pa. Cons. Stat. § 63 l 8(a)(l ). 

4 18 Pa. Cons. Stat. § 3122. l. 

5 18 Pa. Cons. Stat. § 6301. 
sentence, which was denied as an operation of law on October 22, 2007. The Petitioner did not 

appeal his judgment of sentence nor the denial of his post-sentence motion. On February 22, 2012, 

Petitioner filed his first PCRA petition, which raised a number of ineffective assistance claims 

regarding his trial counsel. The court dismissed the petition as untimely on December 17, 2012. 

The Superior Court affirmed the dismissal on November 20, 2013.

6 On June S, 2014, the 

Pennsylvania Supreme Court denied a petition for allowance of appeal." 

The Petitioner filed the instant PCRA petition, his second, on June 30, 2014. Petitioner 

subsequently filed two amended PCRA petitions on February 9, 2015, and August 3, 2015, 

reiterating the same claim of an unconstitutional sentence raised in his June, 2014 petition. The 

court issued a notice of intent to dismiss the petition C'907 notice"), pursuant to Pa.R.Crim.P. 907, 

on July 7, 2016. On July 25, 2016, prior to the dismissal of the PCRA petition, Barnaby Wittels, 

Esquire entered his appearance. Attorney Wittels filed a motion for extension of time to file 

objections to the 907 notice. The court granted the extension and Attorney Wittels filed a response 

to the 907 notice on August 23, 2016. On October 11, 2016, the court formally dismissed the 

PCRA petition as untimely. The Petitioner filed a notice of appeal on October 26, 2016. The 

Petitioner filed a statement of matters complained on appeal (" I 925(b) statement") on November 

14, 2016, in response to the court's November 4, 2016 order requesting the statement in accordance 

with Pa.RA. P. l 925(b ). Due to its lengthiness, the court will not reproduce the 1925(b) statement 

verbatim, as is custom. The Petitioner's 1925(b) statement centered on one alleged error - a claim 

that the PCRA court erred in dismissing the petition because Commonwealth v. Ciccone, No. 3114 

EDA 2014, 2016 \VL 7217269 (Pa. Super. 2016) entitled the Petitioner to relief. 

6 Commonwealth v. Jamison, No. 13 8 EDA 2013 (Pa. Super. Nov. 20, 20 l 3) (unpublished 

memorandum). 

7 Commonwealth v. Jamison, No. 635 EAL 2013 (Pa. June 5, 2014) (per curiam). 

2 
II. Legal Analysis 

Under 42 Pa. Cons. Stat. §§ 9541 M9546> commonly known as the Post Conviction Relief Act, 

a petitioner is required to plead and prove by a preponderance of the evidence that he was 

convicted or sentenced as a result of one of the grounds enumerated in subsection (a)(2) to obtain 

post-conviction relief. 42 Pa. Cons. Stat. § 9543(a)(2). He must also prove the claimed errors 

were not previously litigated or waived and "the failure to litigate the issue prior to or during 

trial, . . or on direct appeal could not have been the result of any rational, strategic or tactical 

decision by counsel." Id. § 9543(a)(4). An issue is considered previously litigated if "the highest 

appellate court in which the petitioner could have had review as a matter of right has ruled on the 

merits of the issue." Id. § 9544(a)(2). An issue is considered waived "if the petitioner could have 

raised it but failed to do so before trial> at trial, during unitary review, on appeal or in a prior 

state postconviction proceeding." Id. § 9544(b). 

a. The PCRA court was without jurisdiction to make a determination on the merits of 

the PCRA petition as it was untimely filed and did not qualify for any of the three 

statutory exceptions for untimeliness. 

Petitioner's sole claim is that the PCRA court erred in not granting relief to Petitioner 

because the entirety of Pennsylvania's mandatory sentencing scheme was rendered 

unconstitutional and illegal by the Commonwealth v. Ciccone> No. 3114 EDA 2014, 2016 WL 

3902841 (Pa. Super. July 12, 2016) and Alleyne v. United States, 133 S.Ct. 2151 (2013) 

decisions. In Alleyne, the Supreme Court of the United States held any fact that increases a 

mandatory minimum sentence is an element of the crime and must be proven to a jury beyond a 

reasonable doubt. Alleyne v. United States> 133 S. Ct. 2151 (2013). As a result of the Alleyne 

decision, Pennsylvania courts had to rule upon the impact of Alleyne on various mandatory 

minimum sentencing statutes and the proper channel for seeking relief under Alleyne. In one 

3 
particular case, Commonwealth v. Ciccone, the Superior Court had to determine whether a 

petitioner was entitled to seek relief under Alleyne via a timely PCRA petition. No. 3114 EDA 

2014, 2016 WL 3902841 (Pa. Super. July 12, 2016). In contrast to the petitioner in Ciccone, 

Petitioner has failed to establish the PCRA court has jurisdiction to review the merits of his 

untimely petition. 

A petitioner must file a PCRA petition, including second and subsequent petitions, within 

one year of the date when the judgment becomes final. 42 Pa. Cons. "Stat. § 9545(b). A judgment 

is considered final at the close of direct review or when the time to seek review expires. Id. § 

9545(b)(3). There are three exceptions to the one-year time limitation: 

(i) the failure to raise the claim previously was the result of interferenceby 

govenunent officials with the presentation of the claim in violation of the 

Constitution or laws of this Commonwealth or the Constitution or Jaws 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. § 9545(b )(1 ). Pennsylvania courts have no jurisdiction to address the substantive merits of 

PCRA petitions that are untimely without exception. See e.g. Commonwealth. v. Robinson, 837 

A.2d 1157, 1163 (Pa. 2003); Commonwealth v. Hall, 771 A.2d 1232, 1234 (Pa. 2001) 

("Pennsylvania courts lack jurisdiction to entertain untimely PCRA petitions."). Even if the 

petitioner is serving an illegal sentence, which is reviewable under the PCRA, his claim is still 

subject to the time limitations under the PCRA. Commonwealth v. Fahy, 73 7 A.2d 214, 223 (Pa. 

1999). 

4 
In the instant matter, the Petitioner's judgment of sentence became final on or about 

November 21, 2007, thirty (30) days after the order denying Petitioner's post-sentence motion 

for reconsideration by operation oflaw was entered. See 42 Pa. Cons. Stat. § 954S(b)(3); 

Pa.R.Crim.P. 720(A)(2)(b). The instant matter was not filed until June 30, 2014 - almost seven 

(7) years after Petitioner's judgment of sentence became final. As his claim was filed well 

beyond the one-year timeline, Petitioner was required to properly plead and prove one of the 

timeliness exceptions for the court to consider the substantive merits of his petition. As discussed 

below, Petitioner failed to establish any exception for his untimely petition. Although claims of 

an illegal sentence are generally reviewable under the PCRA, Petitioner's claim is still subject to 

the time limitations of the PCRA. Without any exception for his untimeliness, the PCRA court 

was without jurisdiction to review the merits of his claim and accordingly dismissed his petition. 

b. Petitioner's reliance on Commonwealth v. Ciccone, No. 3114 EDA 2014, 2016 WL 

3902841 (Pa. Super. ·July 12, 2016) is misplaced and fails to establish an exception for 

the untimeliness of his petition. 

Petitioner attempts to establish an exception for his untimely petition under the afterrecognized constitutional right exception. If a petitioner pleads and proves "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," the PCRA court may consider the merits of the otherwise untimely petition. 

42 Pa. Cons. Stat. § 9545(b)(l)(iii) (emphasis added). Petitioner makes a convoluted attempt to 

circumvent the PCRA's mandate that the after-recognized constitutional right must be held to 

apply retroactively by relying on the Superior Court's decision in Commonwealth v. Ciccone, No. 

3114 EDA 2014, 2016 WL 3902841 (Pa. Super. July 12, 2016). According to Petitioner, "the 

Ciccone Court ruled that the change wrought by Alleyne, Newman and the subsequent cases 

5 
rendered any mandatory sentence illegal and unconstitutional and thus subject to review regardless 

of whether one conducted a retroactivity analysis under Teague v. Lane . . or not." Pet. 1925(b) 

Statement at 2 (unpaginated). In essence> the Petitioner argued the court did not need to consider 

the retroactivity of the Alleyne holding because the Ciccone court rendered all mandatory 

minimum sentences illegal and thereby, always subject to review regardless of the timeliness of 

the PCRA petition. However, Pennsylvania courts have squarely addressed the retroactivity of 

Alleyne and unequivocally held that Alleyne does not apply retroactively to petitioners seeking 

relief via untimely PCRA petitions. See Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016). 

The Petitioner is not entitled to relief because ·he untimely filed his PCRA petition and failed to 

establish an exception for his untimeliness. 

First, the Superior Court's holding in Commonwealth v. Ciccone, No. 3114 EDA 2014, 2016 

WL 3902841 (Pa. Super. July 12, 2016) does not establish an exception to timeliness that would 

allow the PCRA court to review the merits of the petition. The after-recognized constitutional right 

exception requires the constitutional right to be recognized by either the Supreme Court of the 

United States· or the Supreme Court of Pennsylvania. 42 Pa. Cons. Stat. § 9545(b)(l)(iii). 

Petitioner's claim that the Ciccone holding renders the entirety of Pennsylvania's mandatory 

· sentencing regime unconstitutional is inaccurate> but moreover it is of no matter as Ciccone was 

decided by the Pennsylvania Superior Court - not the Supreme Court of the United States or the 

Pennsylvania Supreme Court as required for the after-recognized constitutional right. See id. To 

clarify, 

the Ciccone holding centered on the propriety of a petitioner challenging an illegal sentence 

via a timely PCRA petition; "[a]ccordingly, we hold that when an unconstitutional mandatory 

minimum sentencing statute results in an illegal sentence, that illegal sentence can be corrected via 

a timely PCRA petition, irrespective of whether retroactive application of the underlying 

6 
constitutional ruling is required under the [Teague v. Lane, 109 S.Ct. 1060 (1989)] framework." 

Ciccone, 2016 WL 3902841, at *11 (emphasis in original). The Petitioner has erroneously relied 

upon the Superior Court's holding in Ciccone to establish an after-recognized constitutional right 

that would excuse his untimely petition. See Commonwealth v. Copenhefer, 94 l A.2d 646, 649- 

650 (Pa. 2007) (highlighting subsection 9545(b )(1 )(iii)'s requirement that the constitutional right 

asserted was recognized by the Supreme Court of the United States or the Supreme Court of 

Pennsylvania). As Ciccone was decided by the Pennsylvania Superior Court, it does not meet the 

mandates of subsection 9545(b )(1 )(iii) nor excuse Petitioner's untimeliness. 

Second, the Pennsylvania Supreme Court was unambiguous in its holding regarding 

retroactivity of Alleyne. In Commonwealth v. Washington, the court held Alleyne did not apply 

retroactively to petitioners seeking to collaterally attack mandatory minimum sentences. 142 

A.3d 810 (Pa. 2016). In Washington, the court considered the retroactivity of the Alleyne 

decision in its review of the dismissal of a PCRA petition filed by an appellant who was subject 

to a mandatory minimum sentence. The court concluded "that Alleyne does not apply 

retroactively to cases pending on collateral review." Id. at 820. Although the Petitioner argues 

that Ciccone provides relief for unconstitutional mandatory minimum sentences regardless of a 

Teague analysis

8 on retroactivity, that argument directly contradicts the Supreme Court of 

Pennsylvania - the highest court in the Commonwealth of Pennsylvania - and its application of 

Teague to determine retroactivity of Alleyne. As the Pennsylvania Supreme Court has established 

8 In Teague v. Lane, the Supreme Court of the United States set forth a framework to 

determine the applicability and retroactivity of new rules, 109 S.Ct. 1060 (1989). When a 

new rule is established, the old rule will apply to cases on direct or collateral review. Id. 

at 1070-75. The new rule will only ap1,ty to cases still on direct review and will apply 

retroactively if (1) the rule is substantive, or (2) the rule is a "watershed rule[J of criminal 

procedure." Id at 1075-76. 

7 
that Alleyne is not to be applied retroactively, Petitioner has failed to establish an exception for 

his untimeliness under subsection 9545(b)(l)(iii) of the PCRA. See 42 Pa. Cons. Stat. § 

9545(b )(1 )(iii). 

Lastly, Petitioner's argument that he is still entitled to relief under Ciccone regardless of the 

Washington decision neglects to address the important and dispositive differences in the facts of 

the Ciccone case in contrast to Petitioner's case. In Ciccone, the petitioner, Sean Ciccone, pled 

guilty to felony drug charges and related conspiracy and possession charges. Ciccone, 2016 WL 

3902841, at * 1. Ciccone was sentenced to a mandatory minimum sentence under 18 Pa. Cons. 

Stat.§ 7508(a)(l)(ii), the applicable statute for possession of a certain amount of marijuana 

plants. Id Cicconc's judgment of sentence became final on October 10, 2011 and he timely filed 

his PCRA petition on April 9, 2012- well within the one year deadline mandated under the 

PCRA. Id On appeal from the denial of his PCRA petition, the Superior Court addressed one 

specific question: "whether the PCRA petitioner is entitled to relief when he raises, in a timely 

PCRA petition, a claim that his sentence is illegal pursuant to Alleyne v. United States ... , and 

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)T' Id. at *2 (emphasis 

added). Although the Ciccone decision discusses the Alleyne decision and its progeny, it does not 

recognize a constitutional right in the same manner as Alleyne. More importantly, the Ciccone 

court is explicit that its holding relies upon the timeliness of Ciccone's PCRA petition and 

addresses the correction of illegal sentences when "jurisdiction is not in doubt." Id. at * 8. 

In the instant matter, the Petitioner has failed to establish jurisdiction for his untimely 

petition. Petitioner cannot seek to have the holding of a case based on a timely PCRA petition 

apply to his untimely matter. The Petitioner filed his petition well beyond the one-year deadline 

mandated by the PCRA. See 42 Pa. Cons. Stat. § 9545(b). It was necessary for him to establish 

8 
an exception to his untimeliness for jurisdiction to remain with the PCRA court to review the 

substantive merits of his petition. See e.g. Commonwealth v. Hall) 771 A.2d 1232 (Pa. 200 I). As 

discussed above, Petitioner failed to prove the after-recognized constitutional right, which would 

excuse his untimeliness. He cannot now attempt to evade the mandates of the PCRA by relying 

upon a case, which was predicated on a timely PCRA petition. Petitioner is not entitled to relief 

on his untimely PCRA petition and cannot rely upon Ciccone to excuse his untimeliness. 

III. Conclusion 

Petitioner failed to establish an exception for his untimely petition. Regardless of his claim of 

an illegal sentence based on Alleyne v. United States) 133 S.Ct. 2151 (2013), Petitioner is still 

subject to the time limitations of the PCRA. Without any exception for his untimeliness, the 

PCRA court was without jurisdiction to review the substantive merits of his petition and 

accordingly dismissed the Petitioner's PCRA petition. This court's ruling should stand. 

CKER,S.J. 

9 
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

CRfMINAL TRIAL DIVISION 

COMMONWEAL TH V. JUDAH JAlVIISON 

OPINION 

PROOF OF SERVICE 

CP-51-CR-0305821-2006 

I hereby certify that I am this day serving the foregoing Court Order upon the person(s) 

and in the manner indicated below, which service satisfies the requirements of PA.R.CRIM.P. 114: 

Counsel for Petitioner: 

Type of Service: 

District Attorney: 

Type of Service: 

Barnaby Wittels, Esquire 

LaCheen & Wittels, LLP 

1429 Walnut Street 

Suite 1301 

Philadelphia, PA 19102 

( ) Personal ( X ) First Class Mail ( ) Other 

Hugh Burns Jr., Esquire 

Appeals Unit, District Attorney's Office 

Widener Building 

3 South Penn Square 

Philadelphia, PA 19107 

( ) Personal ( X ) First Class Mail ( ) Other 

10