J-S48009-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 

v. 

VAUGHN E. JAMES 

 Appellant No. 1012 WDA 2015 

Appeal from the PCRA Order May 18, 2015 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0000990-2011 

CP-02-CR-0004395-2011 

CP-02-CR-0015955-2008 

BEFORE: BOWES, DUBOW AND MUSMANNO, JJ. 

MEMORANDUM BY BOWES, J: FILED AUGUST 19, 2016 

 Vaughn E. James appeals from the May 18, 2015 order dismissing his 

second PCRA petition. We affirm. 

 This appeal encompasses three underlying criminal cases. At criminal 

action 15955 of 2008, on March 15, 2011, Appellant tendered a negotiated 

guilty plea. In exchange for a two to six year term, Appellant pled guilty to 

one count each of possession of a controlled substance with intent to deliver 

(“PWID), obstruction of justice, possession of marijuana, and resisting arrest 

and two counts of possession of a controlled substance. On July 18, 2011, 

at case number 990 of 2011, which was initiated by the Office of the 

Attorney General of Pennsylvania, Appellant entered a negotiated guilty plea 
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to two counts of corrupt organizations, thirteen counts of delivery of a 

controlled substance (including cocaine, heroin, and marijuana), eight counts 

of PWID, and one count each of conspiracy, prohibited sale or transfer of a 

firearm, carrying an unlicensed firearm, and receiving stolen property. The 

negotiated sentence in that case was eleven to twenty-two years of 

incarceration followed by a probationary term of a maximum of three 

months. There was also a five-year mandatory term of imprisonment that 

was to be imposed in that action, but it had to run concurrently to the 

above-described sentence. 

 That same day, July 18, 2011, at action number 4395 of 2011, 

Appellant pled guilty to two counts of PWID (cocaine) in return for imposition 

of a mandatory minimum term and withdrawal of two other offenses. The 

sentence at this matter was to be imposed concurrently with that at 990 of 

2011. Appellant accepted the mandatory minimum sentences to protect his 

girlfriend, his co-defendant, from a jail term. 

 On July 18, 2011, Appellant was sentenced in all three cases in 

accordance with the above-negotiated agreement with the exception that his 

maximum sentence in the 2008 case was reduced as it was set at four 

rather than six years. In addition, the court granted the Commonwealth 

restitution for the amount that it expended to purchase drugs pursuant to 

controlled buys, which amounted to $14,440 in the 2011 cases and 

$12,864.96 in the 2008 action. 
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Appellant did not file a direct appeal. On March 2, 2012, Appellant 

filed a timely pro se PCRA petition at all three docket numbers. Counsel was 

appointed and filed a petition to withdraw pursuant to Commonwealth v. 

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

213 (Pa.Super. 1988) (en banc). Counsel was allowed to withdraw and 

PCRA relief was denied. Appellant filed a pro se notice of appeal and raised 

numerous issues on appeal, including a claim that the restitution award was 

improper. We agreed with that position on the basis that the imposition of 

restitution violated the terms of the plea agreement. Upon remand, the trial 

court struck all restitution. 

 On April 14, 2015, Appellant filed his second petition seeking postconviction relief by arguing that his sentence was unconstitutional as it 

included application of mandatory minimum sentences that were 

unconstitutional under Alleyne v. United States, 133 S.Ct. 2151 (2013). 

In Alleyne, the United States Supreme Court held that any fact, other than 

the existence of a prior conviction, that invokes application of a mandatory 

minimum sentence must be submitted to a jury and proven beyond a 

reasonable doubt. Various mandatory minimum sentencing provisions, 

including the one applied herein, have been declared void and 

unconstitutional under Alleyne, but the cases were direct appeals from 

imposition of a judgment of sentence. 
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On April 22, 2015, the PCRA court herein issued notice of its intent to 

dismiss the petition without a hearing, and, on May 19, 2015, it denied PCRA 

relief. This pro se appeal followed. Appellant raises these positions for our 

review: 

1. Is Appellant's sentence illegal and unconstitutional pursuant to 

recent decisions declaring 18 Pa.C.S.A. §7508 unconstitutional 

[under Alleyne, supra]? 

2. Since Appellant's sentence is unconstitutional is Appellant 

entitled to resentencing in that his sentence is illegal? 

Appellant’s brief at 4. 

We first outline our standard of review: 

 Under the applicable standard of review, we must determine 

whether the ruling of the PCRA court is supported by the record 

and is free of legal error. Commonwealth v. Marshall, 596 Pa. 

587, 947 A.2d 714, 719 (2008). The PCRA court's credibility 

determinations, when supported by the record, are binding on 

this Court. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 

523, 532, 539 (2009). However, this Court applies a de novo

standard of review to the PCRA court's legal conclusions. 

Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810 

(2007). 

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). Accord 

Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“If supported by 

the record, the PCRA court's credibility determinations and factual findings 

are binding on this Court; however, we apply a de novo standard of review 

to the PCRA court's legal conclusions.”). 

Before we can address the merits of any of Appellant’s positions, we 

must determine whether Appellant’s April 14, 2015 PCRA petition was timely 
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filed as that issue implicates our jurisdiction. Commonwealth v. Miller, 

102 A.3d 988 (Pa.Super. 2014). If a PCRA petition is untimely, “neither this 

Court nor the trial court has jurisdiction over the petition.” Id. at 992 

(citation omitted); see Commonwealth v. Chester, 895 A.2d 520, 522 

(Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the trial 

court has jurisdiction over the petition. Without jurisdiction, we simply do 

not have the legal authority to address the substantive claims.”). 

Any PCRA petition has to be filed within one year of the date the 

defendant’s judgment becomes final unless an exception to the one-year 

time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must 

determine when Appellant’s judgment of sentence became final. “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. § 9545(b)(3). In this case, since Appellant did not file a 

direct appeal from his July 18, 2011 judgment of sentence, that sentence 

became final thirty days later, or on August 17, 2011. Appellant had until 

August 17, 2012, to file a timely PCRA petition, and his April 14, 2015 

petition is untimely. 

There are three exceptions to the one-year time bar of § 9545: 1) 

governmental officials interfered with presentation of the claim; 2) the facts 

underlying the claim were unknown to the defendant and could not have 
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been discovered by the exercise of due diligence; and 3) the right asserted 

is a constitutional right that was recognized by our Supreme Court or the 

United States Supreme Court after a defendant’s judgment of sentence 

became final and the Supreme Court or the United States Supreme Court 

has held that right to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i-iii). To 

invoke an exception, the petitioner must plead and prove it. 

Commonwealth v. Beasley, 741 A.2d 1258, 1261-62 (Pa. 1999) 

(petitioner has burden to plead and prove exceptions). In addition, any 

exception must be raised within sixty days of the date the claim could have 

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

Herein, Appellant does not specifically invoke the newly-recognized 

constitutional right exception to the PCRA time requirements. He simply 

notes that the mandatory minimum sentencing provision in question, as well 

as others, have been struck down in their entirety as unconstitutional under 

Alleyne and that his sentence is unconstitutional and illegal. He also 

observes that legality of sentence issues cannot be waived. 

Our Supreme Court recently ruled that Alleyne does not apply 

retroactively to attacks upon mandatory minimum sentences advanced on 

collateral review. Commonwealth v. Washington, 2016 WL 3909088 (Pa. 

July 19, 2016). Under Washington, Appellant cannot, by means of a PCRA 

petition, attack the validity of his sentence on the bases that it included 
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imposition of mandatory minimum sentences that were rendered 

unconstitutional under Alleyne. 

Additionally, an attack to the legality of a sentence, even though nonwaivable, still must be brought pursuant to a timely PCRA petition. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (although legality 

of sentence is always subject to review within PCRA, claims must still first 

satisfy the PCRA’s time limits or a statutory exception). Thus, Appellant’s 

assertion that he is serving an illegal sentence fails to overcome the PCRA’s 

time bar. 

Moreover, even to the extent that we treat Appellant’s citation to 

Alleyne as leveling a basis to circumvent the time bar, his claim fails for 

another reason. Appellant failed to satisfy the threshold requirement of 

asserting the statutory exception within sixty days of the date the claim 

could be presented. See 42 Pa.C.S. § 9545(b)(2). The United States 

Supreme Court decided Alleyne on June 17, 2013, and Appellant did not 

filed his petition seeking relief under its provisions until April 14, 2015, 

nearly two years after that case was decided. Appellant cannot obtain relief 

under Alleyne under this untimely filed PCRA petition. Hence, we affirm the 

denial of relief. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/19/2016