Com. v. Jordan, D.
Com. v. Jordan, D. No. 1574 WDA 2016
| Pa. Super. Ct. | Jul 6, 2017Background
- Damar Lamont Jordan pleaded guilty in April 2013 to third‑degree murder and aggravated assault and was sentenced June 20, 2013 to an aggregate 20½ to 41 years imprisonment.
- Direct appeal affirmed his judgment of sentence; he did not seek allowance to the Pennsylvania Supreme Court. Judgment became final March 13, 2014.
- Jordan filed a timely first PCRA in June 2014; the PCRA court denied relief and this Court affirmed.
- Jordan filed a pro se second PCRA petition on May 24, 2016 (untimely), asserting Alleyne error (mandatory minimum sentence illegal) and ineffective assistance for failure to raise Alleyne; he also argued sentencing merger of the two counts.
- The PCRA court issued Rule 907 notice and dismissed the petition as untimely. Jordan appealed; the Superior Court affirmed, holding the petition untimely and not saved by Alleyne retroactivity or other PCRA exceptions.
Issues
| Issue | Plaintiff's Argument (Jordan) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Timeliness of second PCRA petition | Alleyne establishes a new constitutional rule invalidating mandatory minimums; Alleyne applies retroactively so his untimely petition fits the new‑rule exception | Petition is untimely; Alleyne does not permit relief in an untimely PCRA filing and Jordan failed to file within 60 days of Alleyne | Petition untimely; Alleyne does not save an untimely PCRA petition here |
| Ineffective assistance for failing to raise Alleyne on direct appeal/PCRA | Prior counsel was ineffective for failing to raise Alleyne, which would have preserved an Alleyne claim | Even if counsel erred, Jordan did not plead a PCRA timeliness exception to permit review | Ineffective‑assistance claim fails because it cannot circumvent PCRA time bars |
| Alleyne applicability to sentences imposed June 20, 2013 | Alleyne (decided June 17, 2013) applied to cases not yet final; Jordan’s sentence was imposed after Alleyne so he had one year to file | Jordan did not timely raise Alleyne within the one‑year window after his judgment became final | Alleyne applies to cases pending on direct review, but Jordan still failed to timely pursue relief |
| Sentencing merger of aggravated assault and murder | Sentences should have merged; therefore sentence illegal | Merger claim is time‑barred because Jordan did not plead any exception | Merger claim barred by PCRA timeliness rules |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 1251 (2013) (any fact that increases penalty is an element for the jury to find beyond a reasonable doubt)
- Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (on retroactivity of new substantive rules of criminal law)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne claims generally not cognizable on untimely PCRA review)
- Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015) (Alleyne applies to cases pending on direct review and claims timely raised)