J-S23011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DWAYNE EDWARD MAURER
Appellant No. 2776 EDA 2015
Appeal from the PCRA Order August 20, 2015
in the Court of Common Pleas of Montgomery County
Criminal Division, at No(s): CP-46-CR-0001986-2010
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED MAY 20, 2016
Appellant, Dwayne Edward Maurer, appeals pro se from the order
dismissing as untimely his second petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On December 7, 2010, Appellant entered a negotiated guilty plea to
two counts of involuntary deviate sexual intercourse as result of his actions
toward his stepdaughter who, at the time of the offenses, was under the age
of thirteen. In return, the Commonwealth agreed to withdraw multiple
related charges. On March 18, 2011, in accordance with the plea agreement,
the trial court sentenced Appellant to a term of ten to twenty years of
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Former Justice specially assigned to the Superior Court.
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incarceration for the one count and a consecutive ten-year probationary
term for the other count. Appellant did not file a direct appeal.
On February 3, 2012, Appellant filed a pro se PCRA petition, and the
PCRA court appointed counsel. PCRA counsel filed a petition to withdraw and
“no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). The PCRA court issued notice of its intent to dismiss Appellant’s PCRA
petition without a hearing. The court also granted PCRA counsel permission
to withdraw. Appellant filed a response, but the PCRA court dismissed
Appellant’s petition.
Appellant appealed to this Court. In an unpublished memorandum
decision a panel affirmed the order denying Appellant post-conviction relief.
See Commonwealth v. Maurer, 83 A.3d 1068 (Pa. Super. 2013) (Table).
Our Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Maurer, 2014 Pa. LEXIS 303 (Pa. 2014) (Table).
On June 29, 2015, Appellant filed the pro se PCRA petition at issue.
The PCRA court issued notice of intent to dismiss his petition without a
hearing. Appellant filed a response. The PCRA court subsequently denied
Appellant’s PCRA petition. This timely appeal follows.
Appellant raises the following issues:
I. Did the [PCRA court] err in dismissing the instant [PCRA
petition] as untimely when the instant petition was filed
within sixty (60) days of learning of the United States
Supreme Court’s decision in Alleyne v. United States,
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[133 S.Ct. 2151 (2013)], thereby rendering his sentence
unconstitutional and illegal?
II. Did the [PCRA court] err in dismissing the instant [PCRA
petition] by stating the Court lacks jurisdiction to consider
the merits when the [trial court] always retains jurisdiction
to correct an illegal sentence and the inherent power to do
so?
Response Brief for Appellant at 3.1
In order to address Appellant’s issues, we must first determine
whether the PCRA court correctly determined that Appellant untimely filed
his second PCRA petition. The timeliness of a post-conviction petition is
jurisdictional. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.
Super. 2013). 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 is final unless the petition alleges, and the petitioner proves, that
an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii). A PCRA petition invoking one of these statutory
exceptions must “be filed within 60 days of the date the claims could have
been presented.” Hernandez, 79 A.3d 651-52 (citations omitted). See also
42 Pa.C.S.A. § 9545(b)(2).
Appellant’s judgment of sentence became final on April 18, 2011,
when the thirty-day time period for filing an appeal to this Court expired.
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1
Although Appellant inartfully raised these same claims in his original brief,
we cite them as clarified in Appellant’s response brief for ease of discussion.
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See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant needed to file the PCRA
petition at issue by April 18, 2012, in order for it to be timely. Appellant filed
the instant petition on June 9, 2015; it is untimely unless he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies.
Although Appellant challenges the legality of his sentence, this claim
still must be presented in a timely PCRA petition. See Commonwealth v.
Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). Appellant has failed to prove
any exception to the PCRA’s time bar. Initially, nowhere in our review of the
record do we find any indication that the sentence to which Appellant agreed
as part of his guilty plea included a mandatory minimum. In fact, as the trial
court noted at sentencing, Appellant agreed to imposition of the maximum
sentence on one count, and a consecutive ten-year probationary term on the
other count. See N.T., 3/18/11, at 13. In return, the Commonwealth
withdrew multiple charges. See id., at 14.
Even if Appellant’s negotiated sentence included a mandatory
minimum, he would still not be entitled to relief. Appellant’s claim fails for
several reasons. First, as the PCRA Court aptly explained:
Our Supreme Court has held that “subsequent decisional
law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)
of the PCRA.” Commonwealth v. Brandon, 51 A.3d 231, 235
(Pa. Super. 2012) (citing Commonwealth v. Watts, 23 A.3d
980, 987 (Pa. 2011)). Therefore, this claim fails.
Even if Alleyne [and its progeny] were somehow to satisfy
an exception to the time bar, [Appellant] did not raise [his claim]
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until well beyond sixty days after those cases were decided.
Date of case, not date of discovery is used for calculating
exceptions. Brandon, 51 A.3d 235 (citation omitted).
PCRA Court Opinion, 10/21/15, at 6-7.
Moreover, to the extent Appellant argues he should benefit from
retroactive application of the United States Supreme Court’s decision in
Alleyne, his claim fails. In Alleyne, the high Court held that, other than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory minimum must be submitted to a jury and
proved beyond a reasonable doubt. See 131 S.Ct. at 2160-61. Assuming,
for the sake of argument, the Court recognized a new constitutional right in
Alleyne, neither the United States Supreme Court nor the Pennsylvania
Supreme Court has held the right applies retroactively to cases in which the
judgment of sentence had become final. See Commonwealth v. Miller,
102 A.3d 988, 995 (Pa. Super. 2014). Here, Appellant’s judgment of
sentence became final in 2011. Accordingly, the Court’s decision in Alleyne
does not apply. See Miller. See also Commonwealth v. Riggle, 119 A.3d
1058, 1067 (Pa. Super. 2015) (“Alleyne is not entitled to retroactive effect
in [the] PCRA setting.”).
In sum, our review of the record supports the PCRA court’s conclusions
that Appellant’s second PCRA petition is facially untimely, and that he has
failed to establish an exception to the PCRA’s time bar. Therefore, because
the PCRA court correctly found that it was without jurisdiction to address
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Appellant’s substantive claims, we affirm its order denying post-conviction
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
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