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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

 : 

 v. : 

 : 

JUSTIN NICHOLSON, : 

 : 

 Appellant : 

: No. 1555 WDA 2015 

Appeal from the PCRA Order September 24, 2015 

in the Court of Common Pleas of Fayette County Criminal Division 

at No(s): CP-26-CR-0002034-2007 

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ. 

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 11, 2016 

Appellant, Justin Nicholson, appeals from the order entered in the 

Fayette County Court of Common Pleas dismissing, as untimely, his first Post 

Conviction Relief Act1 (“PCRA”) petition. Appellant argues he received a

mandatory minimum sentence that is unconstitutional under Alleyne v. 

U.S., 133 S. Ct. 2151 (2013). We affirm. 

 The relevant procedural history follows. On February 1, 2010, 

Appellant pleaded nolo contendere to robbery,2 terroristic threats,3 theft by 

 

*

 Former Justice specially assigned to the Superior Court. 

1

 42 Pa.C.S. §§ 9541-9546. 

2

 18 Pa.C.S. § 3701(a)(1)(ii). 

3

 18 Pa.C.S. § 2706(a)(1). 
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unlawful taking,4 receiving stolen property,5 simple assault,6 and resisting 

arrest.7 On March 3, 2010, the trial court sentenced Appellant to an 

aggregate term of seven and one-half to fifteen years’ incarceration. The 

court informed Appellant, “ [a] BB gun qualifies as a deadly weapon under 

18 [Pa.S.C. §] 2301 and qualifies as a firearm for the mandatory sentencing 

purposes pursuant to 42 Pa.C.S.[ §] 9712(E).” N.T. Sentencing Hr’g, 

3/3/10, at 5-6. Appellant did not file a direct appeal. 

On March 27, 2015, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel, and counsel filed an amended petition on June 10, 

2015, wherein Appellant argued, inter alia, his sentence was illegal in light of 

the United States Supreme Court’s decision in Alleyne and this Court’s 

decision in Commonwealth v. Valentine, 101 A.3d 801, (Pa. Super. 

2014), appeal denied, 124 A.3d 309 (Pa. 2015).8 The PCRA court scheduled 

a video hearing on Appellant’s amended petition for September 24, 2015, 

and dismissed the petition the same day. PCRA Ct. Order, 9/24/15. 

 

4

 18 Pa.C.S. § 3921(a). 

 

5

 18 Pa.C.S. § 3925(a). 

6

 18 Pa.C.S. § 2701(a)(3). 

 

7

 18 Pa.C.S. § 5104. 

8

 The Court in Valentine applied the principles of Alleyne and this Court’s 

subsequent decisions and held Section 9712 is unconstitutional. See 

Valentine, 101 A.3d at 812. 
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Appellant filed a timely notice of appeal and a court ordered Pa.R.A.P. 

1925(b) statement. The PCRA court filed a responsive opinion. 

 On appeal, Appellant raises the following issue for our consideration. 

Whether the holding of the United States Supreme 

Court in Alleyne . . . applies retroactively on postconviction review? 

Appellant’s Brief at 3.9

 Appellant argues that Alleyne applies retroactively to petitioners on 

post-conviction review. Id. at 12. Appellant further contends, “requiring 

him to serve an illegal sentence is manifestly unfair” and in violation of his 

constitutional rights. Id. at 12-13. For the reasons that follow, we hold 

Appellant is not entitled to relief. 

 Our standard of review is well-settled: 

In reviewing the denial of PCRA relief, we examine 

whether the PCRA court’s determination is supported

by the record and free of legal error. The scope of 

review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most 

favorable to the prevailing party at the trial level. . . 

. [T]his Court reviews the PCRA court’s legal 

conclusions de novo. 

 

9

 Appellant also argues the PCRA court erred in determining he was not 

subject to a mandatory minimum sentence because he pleaded “guilty.” 

Appellant’s Brief at 3, 6. The certified record does not include a transcript of 

the PCRA hearing, and the PCRA court did not file an opinion at the time of 

its dismissal of Appellant’s petition suggesting the mandatory minimum did 

not apply to Appellant. However, in its Rule 1925(a) opinion, the PCRA court 

noted Appellant was subject to the Section 9712 mandatory sentencing 

provision. PCRA Ct. Op., 10/19/15, at 1. At sentencing, the trial court also 

referred to Section 9712. N.T., 3/3/10, at 5-6. Therefore, the record does 

not support this claim, and we need not address it. 
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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations 

omitted). 

As a prefatory matter, “we must first consider the timeliness of 

Appellant’s PCRA petition because it implicates the jurisdiction of this Court 

and the PCRA court. . . . [W]hen ‘a PCRA petition is untimely, neither this 

Court nor the trial court has jurisdiction over the petition.’” Id. (citations 

omitted). The time for filing a PCRA is codified at 42 Pa.C.S. § 9545(b)(1): 

(b) Time for filing the petition.— 

(1) Any petition under this subchapter, including a

second or subsequent petition, shall be filed 

within one year of the date the judgment 

becomes final, unless the petition alleges and the 

petitioner 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. 

42 Pa.C.S. § 9545(b)(1). 
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This Court has considered whether Alleyne entitles an untimely PCRA 

petitioner to relief under Section 9545(b)(1)(iii):

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. 

Miller, 102 A.3d at 995 (citations omitted). 

Instantly, Appellant was sentenced on March 3, 2010, and he did not 

file a direct appeal. Therefore, his judgment of sentence became final on 

April 5, 2010,10 and he had a year from that date to file a timely PCRA 

petition. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(1). Appellant filed his 

PCRA petition on March 27, 2015, and it is facially untimely. Appellant’s 

position is that Alleyne applies retroactively, and Section 9545(b)(1)(iii)

entitles him to PCRA relief. Appellant’s Brief at 12. However, Miller held 

that Alleyne does not meet Section 9545(b)(1)(iii)’s exception to the timebar. Miller, 102 A.3d at 995. Therefore, the PCRA court correctly dismissed 

Appellant’s untimely PCRA petition, and we affirm. See id. at 992, 995. 

 

10 We note the 30th day following the imposition of sentence was Friday, 

April 2, 2010. The Superior Court was closed on that date in observance of 

Good Friday. Therefore, Appellant had until Monday, April 5, 2010 to file a 

timely appeal. See 1 Pa.C.S. § 1908. 
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Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 3/11/2016