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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAARON ANTHONY SHEARS
Appellant No. 937 WDA 2015
Appeal from the PCRA Order June 2, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001660-2011
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED OCTOBER 14, 2015
Appellant, Daaron Anthony Shears, appeals from the order entered in
the Fayette County Court of Common Pleas, which dismissed his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
On July 13, 2012, a jury convicted Appellant of rape, sexual assault,
and statutory sexual assault. The court sentenced Appellant on November
2, 2012, to a mandatory minimum term of ten (10) to twenty (20) years’
incarceration for the rape conviction, pursuant to 42 Pa.C.S.A. § 9718. The
court imposed a consecutive term of three (3) months’ to ten (10) years’
incarceration for sexual assault, and no further penalty for statutory sexual
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1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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assault. Appellant filed a post-sentence motion on November 6, 2012. On
November 8, 2012, the court amended the sentence so that Appellant
received a term of three (3) months’ to ten (10) years’ incarceration for
statutory sexual assault, and no further penalty for sexual assault.
Appellant filed a notice of appeal on December 11, 2012, which this Court
dismissed as untimely on July 9, 2013. On September 10, 2014, Appellant
filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an
amended petition on January 6, 2015, asserting that Appellant’s mandatory
minimum sentence was unlawful under Alleyne v. United States, ___ U.S.
___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Commonwealth v.
Wolfe, 106 A.3d 800 (Pa.Super. 2014). Following a hearing, the court
dismissed Appellant’s PCRA petition as untimely on June 2, 2015. Appellant
filed a timely notice of appeal on June 15, 2015. The court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008). A PCRA
petition must be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at
the conclusion of direct review or at the expiration of time for seeking
review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the
PCRA’s timeliness provisions allow for very limited circumstances under
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which the late filing of a petition will be excused. See 42 Pa.C.S.A. §
9545(b)(1). To invoke the “new constitutional right” exception, the
petitioner must plead and prove that “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.A. §
9545(b)(1)(3). A petitioner asserting a timeliness exception must file a
petition within 60 days of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2). Instantly, Appellant’s judgment of sentence became
final on December 8, 2012, upon expiration of the time to file a notice of
appeal with this Court. See Pa.R.A.P. 903(a). Appellant filed the current
PCRA petition on September 10, 2014. Thus, Appellant’s petition is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). To the extent Appellant attempts
to invoke the “new constitutional right” exception to the PCRA’s time limits,
neither the U.S. Supreme Court nor the Pennsylvania Supreme Court have
held that Alleyne or its progeny apply retroactively. See Commonwealth
v. Miller, 102 A.3d 988 (Pa.Super. 2014) (holding Alleyne did not
announce new constitutional right that has been held to apply retroactively,
to satisfy PCRA’s time-bar exception). Appellant also relies on Wolfe,
supra, but that decision merely applied the constitutional right already
recognized by Alleyne. Thus, Appellant’s petition remains time barred.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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