J-S22039-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONALD L. LAMEY, SR., :
:
Appellant : No. 1249 MDA 2015
Appeal from the Order Entered June 29, 2015,
in the Court of Common Pleas of Centre County,
Criminal Division, at No(s): CP-14-CR-0000842-1994
BEFORE: MUNDY, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 30, 2016
Donald L. Lamey, Sr. (Appellant) appeals from the order entered on
June 29, 2015, which denied his motion to correct illegal sentence. We
affirm.
The background underlying this matter can be summarized as follows.
On January 17, 1995, a jury convicted Appellant … of one
hundred and ninety-five separate criminal offenses, including
sixty-two counts of involuntary deviate sexual intercourse, forty-
four counts of statutory rape, forty counts of aggravated
indecent assault, seven counts of corruption of minors, forty
counts of indecent assault, one count of incest, and one count of
endangering the welfare of children. The convictions stem from
Appellant’s sexual contact with his adolescent daughter and her
minor friends. On June 9, 1995, the trial court sentenced
Appellant to an aggregate of thirty-three and one-half to sixty-
seven years in prison.
Commonwealth v. Lamey, 850 A.2d 10 (Pa. Super. 2004) (unpublished
memorandum at 1-2) (footnotes omitted). Appellant timely filed a direct
*Retired Senior Judge assigned to the Superior Court.
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appeal, and his judgment of sentence was affirmed by this Court on August
27, 1996. Commonwealth v. Lamey, 685 A.2d 1044 (Pa. Super. 1996)
(unpublished memorandum). Appellant did not file a petition for allowance
of appeal to our Supreme Court.1
On June 26, 2015, Appellant filed a document entitled “Motion to
Modify and Correct Illegal Sentence Nunc Pro Tunc.” In that motion,
Appellant argued that his aggregate sentence is illegal pursuant to the
United States Supreme Court’s decision in Alleyne v. United States, 133
S.Ct. 2151 (2013), which rendered unconstitutional 42 Pa.C.S. § 9718.
On June 29, 2015, the trial court denied the motion by concluding that
Appellant is not entitled to relief because “no court has determined that the
constitutional right as developed in Alleyne and its Pennsylvania progeny is
to be applied retroactively.” Trial Court Opinion, 9/11/2015, at 2. Appellant
timely filed a notice of appeal. The trial court did not order Appellant to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), but did issue an opinion pursuant to Pa.R.A.P. 1925(a). In his brief
to this Court, Appellant asks us to consider the questions that follow.
1
Thereafter, Appellant timely filed a PCRA petition, which the PCRA court
denied, and this Court affirmed. Commonwealth v. Lamey, 850 A.2d 10
(Pa. Super. 2004) (unpublished memorandum). Appellant filed a petition for
allowance of appeal, which our Supreme Court denied on August 31, 2004.
Commonwealth v. Lamey, 858 A.2d 109 (Pa. 2004).
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1. Whether [Appellant’s] sentence is an illegal sentence, in light
of Alleyne, in the line of Apprendi.[2]
2. Whether [Appellant’s] illegal sentence is requiring [sic]
relief/re-sentencing.
3. Whether [Appellant’s] sentence is unconstitutional under the
6th and 14th Amendments of the United States Constitution.
Appellant’s Brief at 1 (unnecessary capitalization omitted).
We first point out that the lower court should have treated Appellant’s
motion as a petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. “It is well-settled that the PCRA is intended to be
the sole means of achieving post-conviction relief…. Issues that are
cognizable under the PCRA must be raised in a timely PCRA petition[.]”
Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013). A
claim challenging the legality of a sentence is cognizable under the PCRA.
See Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000).
Accordingly, we will review Appellant’s appeal as being from the denial of a
PCRA petition.
We set forth our well-settled standard of review. Our standard of
review of the denial of a PCRA petition is limited to examining whether the
court’s rulings are supported by the evidence of record and free of legal
error. Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super.
2010).
2
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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Under the PCRA, all petitions must be filed within one year of the date
that the petitioner’s judgment became final, unless one of three statutory
exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,
895 A.2d 520, 522 (Pa. 2006). For purposes of the PCRA, a judgment
becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).
“The PCRA’s time restrictions are jurisdictional in nature.” Chester, 895
A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor
the trial court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.’”
Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).
This Court affirmed Appellant’s judgment of sentence on August 27,
1996. Appellant had 30 days to petition our Supreme Court for allowance of
appeal. Pa.R.A.P. 1113(a). He did not do so. Thus, for purposes of the
PCRA, Appellant’s judgment became final on September 26, 1996. He
therefore had until September 26, 1997, in order to file timely a PCRA
petition.
Because Appellant untimely filed his PCRA petition in June of 2015, he
had the burden of pleading and offering to prove one of the following
exceptions:
(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;
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(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). Moreover, he was required to show that the
petition was “filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Even if Appellant had invoked one of the aforementioned exceptions in
his motion, namely subsection 9545(b)(1)(iii), he would not be entitled to
relief. This Court has held that “Alleyne will be applied to cases pending on
direct appeal when Alleyne was issued,” but does not apply retroactively
to cases on collateral review. Commonwealth v. Riggle, 119 A.3d 1058,
1064 (Pa. Super. 2015) (citing Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014)) (emphasis added); see also Commonwealth v. Miller,
102 A.3d 988, 995 (Pa. Super. 2014) (noting that neither the Pennsylvania
Supreme Court nor the United States Supreme Court has declared that
Alleyne is to be applied retroactively to cases in which the judgment of
sentence has become final). Thus, reliance on Alleyne cannot overcome the
jurisdictional time limitations of the PCRA. Because the lower court lacked
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jurisdiction over Appellant’s motion, we conclude that the lower court did not
err by denying it.3
Order affirmed.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
3
Based on the foregoing, we need not address Appellant’s substantive
issues on appeal.
4
We recognize that our reasoning differs somewhat from the lower court;
however, “[i]t is well-settled … that we may affirm the PCRA court’s decision
on any basis.” Commonwealth v. Williams, 977 A.2d 1174, 1177 n.8 (Pa.
Super. 2009).
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