J-S18015-16

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CALVIN J. CRAWFORD,

Appellant No. 1039 MDA 2015

Appeal from the PCRA Order May 14, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s):

CP-22-CR-0003323-2000

CP-22-CR-0003771-2000

BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 16, 2016

Calvin J. Crawford appeals from the May 14, 2015 order denying his 

second PCRA petition. We affirm.

On June 6, 2001, a jury convicted Appellant of four counts of unlawful 

delivery of a controlled substance and one count of possession with intent to 

deliver a controlled substance. Pennsylvania State Trooper Timothy 

Longenecker, while engaged in an undercover operation with the Dauphin 

County Drug Task Force and the Swatara Township Police Department, 

purchased cocaine from Appellant on four occasions. Appellant was arrested 

while engaged in a fifth sale of the drug to the officer. The aggregate weight 

of the drugs in question was 28.9 grams of cocaine. On October 18, 2001, 
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Appellant was sentenced to fourteen to sixty years imprisonment followed by 

twenty years probation. His sentence was based, in part, upon application 

of the mandatory minimum sentencing provision of 18 Pa.C.S. § 7508 due to 

the weight of the drugs involved in each sale. On August 12, 2002, we 

affirmed, Commonwealth v. Crawford, 809 A.2d 954 (Pa.Super. 2002) 

(unpublished memorandum), and Appellant did not seek further review. 

On December 11, 2002, Appellant filed a pro se PCRA petition, and 

counsel was appointed. Counsel moved to withdraw pursuant to 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc) and 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Counsel was 

permitted to withdraw, and PCRA relief was denied. On appeal, we affirmed. 

Commonwealth v. Crawford, 883 A.2d 686 (Pa.Super. 2004) 

(unpublished memorandum). 

On December 31, 2014, Appellant filed his second PCRA petition 

claiming his sentence was invalid pursuant to Alleyne v. United States,

133 S.Ct. 2151 (2013).1 After issuing notice of its intent to do so, the PCRA 

____________________________________________

1

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

than a prior conviction, that triggers application of a mandatory minimum 

sentence must be proven beyond a reasonable doubt before the factfinder. 

Section 7508 was held unconstitutional based upon Alleyne. 

Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015); see also 

Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014) (striking down 

mandatory minimums imposed by 42 Pa.C.S. § 9718 on sexual offenses 

based on age of victim), appeal granted, 121 A.3d 433 (Pa. 2015); 

(Footnote Continued Next Page)
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court dismissed Appellant’s petition based on its unitimeliness. This pro se

appeal followed. Appellant raises these issues on appeal:

1. Did the Trial Court error [sic] in imposing the Mandatory 

Minimum because it incorrectly found that 18 PA C.S.A. §7508 

which permitted the Trial Court to find the Elements by a 

Preponderance of the evidence was severable from the rest of 

the statute deeming it unconstitutional. There was no meaningful 

difference between submitting the elements to the Jury and 

accepting a stipulation from the defendant since they both have 

a purpose of finding a method to impose a Mandatory Minimum 

sentence outside the Statutory framework, but consistent with 

Alleyne.

2. Did the Trial Court err in not sentencing Petitioner to the 

Aggregate Amount of Drugs involved in his case instead of the 5 

sentences he was sentenced to consecutively and should the 

Compulsory Joinder Rule be used to sentence the Petitioner.

3. Did the Trial Court err in giving the Defendant an 

Excessive Sentence and fine for the amount of drugs involved in 

his case.

Appellant’s brief at 6. 

Initially, we note that our “standard of review of the denial of a PCRA 

petition is limited to examining whether the evidence of record supports the 

court’s determination and whether its decision is free of legal error.” 

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before 

(Footnote Continued) _______________________

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

mandatory minimum imposed when defendant visibly possesses a firearm, 

42 Pa.C.S. § 9712, invalid under Alleyne); Commonwealth v. Newman, 

99 A.3d 86 (Pa.Super. 2014) (ruling mandatory minimum sentences for 

certain drug offenses committed with a firearm imposed by 42 Pa.C.S. § 

9712.1 unconstitutional). 
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we proceed to the merits of Appellant’s contentions, we must determine 

whether Appellant’s March 2, 2015 PCRA petition was timely 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 (quoting 

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014)); see also 

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006).

Any PCRA petition, “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final” unless an 

exception to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). 

Accordingly, we must ascertain 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 petition for allowance of appeal, Appellant’s sentence became final on 

September 11, 2002, thirty days after our August 12, 2002 affirmance on 

direct appeal. Appellant had until September 11, 2003, to file a timely PCRA 

petition, and the present December 31, 2014 petition is untimely by over 

eleven years. 

There are three exceptions to the one-year time bar of § 9545:
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(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. § 9545(b)(1)(i-iii). “Any petition invoking an exception provided 

in paragraph (1) shall be filed within 60 days of the date the claim could 

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

Herein Appellant claims that his PCRA petition is timely based on 

“Newly Discovered Evidence based on the Constitutionality of his Mandatory 

Sentences.” Appellant’s brief at 8. He then attempts to gain review of his 

remaining two sentencing claims by bootstrapping them onto the supposed 

timeliness of his Alleyne position. However, “Our Courts have expressly 

rejected the notion that judicial decisions can be considered newlydiscovered facts which would invoke the protections afforded by section 

9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.Super. 

2013) (citing Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011) 

(“section 9545(b)(1)(ii) applies only if the petitioner has uncovered facts 

that could not have been ascertained through due diligence, and judicial 
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determinations are not facts”); Commonwealth v. Brandon, 51 A.3d 231, 

235 (Pa.Super. 2012) (same)). Thus, Alleyne and the new Pennsylvania 

case law examining the constitutionality of various mandatory minimum 

sentencing provisions in this Commonwealth do not constitute newlydiscovered facts so as to fall within the parameters of § 9545(b)(1)(i). 

We further observe that we have held specifically that, since Alleyne

has not been held to be retroactive by either our Supreme Court or the 

United States Supreme Court, it does not fall within the newly-recognized 

constitutional right exception to § 9545(b)(1). Miller, supra. 

Having determined that the present PCRA petition was untimely, we 

affirm the denial of PCRA relief. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/16/2016