J-S31023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STERLING J. ELLIS,

Appellant No. 1898 MDA 2014

Appeal from the PCRA Order entered November 10, 2014,

in the Court of Common Pleas of York County,

Criminal Division, at No(s): CP-67-CR-0001991-2004

BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.: FILED MAY 18, 2015

Sterling J. Ellis (“Appellant”) appeals pro se from the order denying his 

latest petition for post-conviction relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and procedural history are as follows: On July 8, 

2004, a jury convicted Appellant of burglary and criminal conspiracy. On 

August 16, 2004, the trial court sentenced Appellant to an aggregate term of 

ten to twenty years of imprisonment. Appellant filed a timely appeal. In an 

unpublished memorandum filed on August 4, 2005, we affirmed Appellant’s 

judgment of sentence. Commonwealth v. Ellis, 885 A.2d 574 (Pa. Super. 

2005). On December 13, 2005, our Supreme Court denied Appellant’s 

petition for allowance of appeal. Commonwealth v. Ellis, 890 A.2d 1056 
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(Pa. 2005). Appellant did not file a petition for certiorari to the United 

States Supreme Court.

Over the ensuing years, Appellant filed serial petitions seeking postconviction relief. All of these attempts were unsuccessful. The PCRA court, 

the Honorable Richard K. Renn, summarized the most recent procedural 

history as follows:

The PCRA petition that is the subject of this appeal was 

filed on August 18, 2014. In that petition [Appellant] 

argued that the application of 42 Pa.C.S.A. § 9714 

mandatory minimum sentence violated the United States 

Supreme Court’s decision in Alleyne v. United States. 

We disagreed and filed our [Pa.R.Crim.P. 907] Notice of 

Intent to Dismiss without a Hearing on August 28, 2014. 

In that letter we explained that [Appellant’s] petition would 

be dismissed for two reasons: (1) the arguments made in 

the petition challenged the discretionary aspects of 

sentencing, which could have been raised on direct appeal; 

and (2) the petition was not timely filed and [Appellant] 

failed to raise an exception under 42 Pa.C.S.A. § 

9545(b)(1).

On October 17, 2014, [Appellant] responded by 

essentially arguing that although the United States 

Supreme Court did not make Alleyne retroactive, the 

Pennsylvania Supreme Court may still make that 

determination, citing Commonwealth v. Johnson, 93 

A.3d 806 (Pa. 2014). We denied [Appellant’s] PCRA 

petition on October 21, 2014. We amended the Order on 

November 10, 2014, only to include notice of [Appellant’s] 

right to appeal our decision.

PCRA Court Opinion, 1/6/15, at 2. This timely appeal followed. Both 

Appellant and Judge Renn have complied with Pa.R.A.P. 1925.

Within his pro se brief, Appellant raises the following issue:
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WHETHER THE [PCRA] COURT ERRED IN DENYING 

[APPELLANT’S] PCRA PETITION BECAUSE THE UNITED 

STATES SUPREME [COURT’S] DECISION IN [Alleyne v. 

United States], 133 S.Ct. 2151 (2013), CREATED A NEW 

CONSTITUTIONAL RIGHT THAT APPLIES RETROACTIVELY.

Appellant’s Brief at 4. 

 This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a 

hearing on the petition if the PCRA court determines that the petitioner’s 

claim is patently frivolous and is without a trace of support in either the 

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 

(Pa. Super. 2001).

We initially examine whether the PCRA court correctly concluded that 

Appellant’s serial PCRA petition was untimely. The timeliness of a postconviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 

1091, 1093 (Pa. 2010) (citation omitted). Thus, if a PCRA petition is 

untimely, neither an appellate court nor the PCRA court has jurisdiction over 

the petition. Id. “Without jurisdiction, we simply do not have the legal

authority to address the substantive claims” raised in an untimely petition. 

Id.
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Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

invoking one of these statutory exceptions must “be filed within sixty days of 

the date the claim first could have been presented.” Gamboa-Taylor, 753 

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to 

the time restrictions of the PCRA must be pled in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal.”).

Appellant’s judgment of sentence became final on March 13, 2006, 

after the expiration of time for filing a petition for certiorari to the United 

States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. 

In order to be timely, Appellant had to file his petition by March 13, 2007. 
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Appellant did not file his latest PCRA petition until August 18, 2014, over 

seven years later. Thus, Appellant’s petition is untimely, unless he has 

satisfied his burden of pleading and proving that one of the enumerated 

time-bar exceptions applies. See Commonwealth v. Beasley, 741 A.2d 

1258, 1261 (Pa. 1999).

Appellant has failed to prove the applicability of any of the exceptions 

to the PCRA’s time restrictions. The Honorable Richard K. Renn astutely 

discussed the multiple reasons why Appellant failed to meet this burden:

[Appellant] argues that the United States Supreme 

Court created a new constitutional right when it held that 

“[m]andatory minimum sentences increase the penalty for 

a crime . . . . [so] any fact that increases the mandatory 

minimum is an ‘element’ [of the crime] that must be 

submitted to a jury.” Alleyne, 133 S.Ct. at 2155. To 

date, our Superior Court has determined that Alleyne

renders numerous mandatory minimum sentences 

unconstitutional because “[i]t permits the trial court, as 

opposed to the jury, to increase a defendant’s minimum 

sentence based upon a preponderance of the evidence,” 

rather than beyond a reasonable doubt as required by 

Alleyne. Commonwealth v. Newman, 99 A.2d 86, 89 

[(Pa. Super. 2014)]. Assuming that the United States 

Supreme Court’s decision in Alleyne does create a new 

constitutional right, [Appellant’s] argument fails for the 

following reasons.

***

In order to satisfy the time-bar exception in 42 

Pa.C.S.A. § 9545(b)(1)(iii), a new constitutional right must 

have been created and either the United States Supreme 

Court or the Pennsylvania Supreme Court has to have held 

that right to be retroactive. In Newman, the Superior 

Court determined that Alleyne applied retroactively to the 

defendant in that case because his judgment of sentence 

was not yet final. Newman, 99 A.3d at 90-91. However, 

a little over a month later, that same court refused to 
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apply Alleyne retroactively to a defendant’s judgment of 

sentence that had become final. Commonwealth v. 

Miller, 102 A.3d 988, 995-96 [(Pa. Super. 2014)]. The 

court noted, “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 has become final.” Id. at 995.

While we agree with [Appellant] that our Supreme 

Court may find that Alleyne applies retroactively [to cases 

where a defendant’s judgement of sentence became final 

prior to the Alleyne decision], it has not yet done so. 

Consequently, we are bound by existing case law. 

[Appellant’s] judgment of sentence became final on March 

13, 2006, which was 90 days after the Pennsylvania 

Supreme Court denied his petition for allowance of appeal. 

Therefore, because neither the Pennsylvania Supreme 

Court nor the United States Supreme Court have declared 

that Alleyne applies retroactively to judgments of 

sentence that are final, [Appellant’s] argument for 

exception under § 9545(b)(1)(iii) fails.

***

Although a challenge based on Alleyne does implicate 

the legality of a sentence, “a legality of sentence claim 

may nevertheless be lost should it be raised . . . in an 

untimely PCRA petition for which no time-bar exception 

applies.” Miller, 102 A.3d at 995-96. As stated above, 

[Appellant] has failed to prove his case fits into any of the 

enumerated exceptions contained in § 9545(b)(1). 

Therefore, even though his challenge implicates the 

legality of his sentence, this Court does not have 

jurisdiction over the claim. See id.

***

[Appellant] argues that he was subjected to the 

mandatory minimum sentencing structure laid out in 42 

Pa.C.S.A. § 9714; however, we cannot agree that he was. 

A review of the transcript from [Appellant’s] sentencing 

shows that the [trial court] took numerous factors into 

account when structuring [Appellant’s] sentence. The 

factors the Court considered included [Appellant’s] prior 

record dating back more than 10 years, the violent nature 

of those prior offenses, the fact that the commission of 
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most of his offenses occurred while he was on supervision, 

the nature of the current offense being that he and his codefendant’s [sic] targeted an elderly couple, and 

[Appellant’s] role in the conspiracy. See N.T., 8/16/2004 

at 3-5. The Court further determined that there were 

many aggravating circumstances and no mitigating 

circumstances. Id. at 3. At no point in the sentencing 

transcript does the [trial court] or the Assistant District 

Attorney mention a mandatory sentence under § 9714.

Even if [Appellant] was subjected to the mandatory 

minimum under § 9714(a)(1), [he] is still out of luck. The 

United States Supreme Court’s decision in Alleyne did not 

overturn its earlier decision in Almendarez-Torres v. 

United States, 523 U.S. 224 (1998). See Alleyne, 133 

S.Ct. at 2160 n.1; see also Miller, 102 A.3d at 995 n.5. 

In Almendarez-Torres, the defendant was sentenced 

pursuant to 8 U.S.C. § 1326(b)(2), which defines criminal 

penalties for aliens who have been deported and attempt 

to illegally reenter the United States. The defendant, who 

had been deported due to three prior convictions for 

aggravated felonies, argued that his prior offender status 

was an element of the crime, and therefore needed to be 

included in the indictment. Id. at 227. Because it was 

not, according to the defendant, the sentencing judge 

could only sentence him to a maximum term of 2 years, as 

opposed to a maximum of 20 years. Id.; see also 8 

U.S.C. § 1326(b)(2).

The Court disagreed. An indictment “need not set forth 

factors relevant only to the sentencing of an offender 

found guilty of the charged crime.” Almendarez-Torres, 

523 U.S. at 228. After stating that the issue was the 

defendant’s recidivism, the Court explained that recidivism 

“is a traditional, if not the most traditional, basis for a 

sentencing court’s increasing an offender’s sentence.” Id.

at 230, 243. The very fact that a defendant is a reoffender 

does not go to establish the commission of a new offense, 

but rather it is taken into account for sentencing purposes 

only. Id. at 243-44. Thus, the Court held that recidivism 

was not an element of the crime and did not need to be 

included in the indictment.

When deciding Alleyne, the Supreme Court referenced 

Almendarez-Torres. The Court noted the general rule 
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from Apprendi v. New Jersey, which stated “any ‘facts 

that increase the prescribed range of penalties to which a 

criminal defendant is exposed’ are elements of the crime.” 

Alleyne, 133 S.Ct. at 2160 (quoting Apprendi v. New 

Jersey, 530 U.S. 466, 490 (2000). However, the Alleyne

Court also noted the narrow exception laid out in 

Almendarez-Torres, which deals with prior convictions. 

The Court stated, “[b]ecause the parties do not contest 

that decision’s vitality, we do not revisit it for purposes of 

our decision today.” Id. at 2160 n.1. Thus, the prior 

conviction exception from Almendarez-Torres was 

unaffected by Alleyne.

Turning back to the present case, and assuming that 

[Appellant] was subjected to 42 Pa.C.S.A. § 9714(a)(1), 

his argument fails because Almendarez-Torres was not 

overturned by Alleyne. Looking at the version of § 9714 

that was in effect at the time [Appellant] was sentenced, it 

is clear that the statute’s only concern is with a 

defendant’s prior convictions; thus, it fits squarely [within] 

the narrow exception articulated in Almendarez-Torres.

***

[Appellant’s] PCRA petition is untimely and he cannot 

prove the enumerated exception in 42 Pa.C.S.A. § 

9545(b)(1)(iii) because neither the United States Supreme 

Court nor the Pennsylvania Supreme Court have held that 

Alleyne applies retroactively [to petitioners whose 

judgment of sentence became final prior to the Alleyne 

decision.] Even if [Appellant’s] PCRA petition was timely, 

his argument fails for two reasons. First, there is no 

evidence [Appellant] was actually subjected to the 

sentencing structure laid out in § 9714. Second, even if he 

was, § 9714’s mandatory minimum sentencing structure is 

based solely on a defendant’s prior convictions, which is an 

exception under Almendarez v. Torres. Therefore, we 

respectfully submit that [Appellant’s] arguments are 

without merit.

PCRA Court Opinion, 1/6/15, at 3-7 (footnote omitted). 
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Our review of the record supports the PCRA court’s conclusion that it 

lacked jurisdiction to consider Appellant’s latest PCRA petition. See 

generally, Miller, 102 A.3d 988 (Pa. Super. 2014); Commonwealth v. 

Ali, 2015 PA Super 45, ___ A.3d ___ (Pa. Super. 2015). Accordingly, we 

affirm the PCRA court’s order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2015