J-S24036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JARED LEE DOWNWARD
Appellant No. 1037 MDA 2015
Appeal from the Order Entered May 13, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005279-2008
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 13, 2016
Appellant, Jared Lee Downward, appeals pro se from the order entered
in the Lancaster County Court of Common Pleas, denying his serial petition
for collateral relief under the Post Conviction Relief Act (“PCRA”),1 which
Appellant styled as a “motion for correction of sentence nunc pro tunc.” We
affirm.
The relevant facts and procedural history of this case are as follows.
From 2006 to 2008, Appellant engaged in sexual acts with three minor
victims. On July 23, 2009, Appellant pled guilty to one count of rape of a
child and three counts each of involuntary deviate sexual intercourse
(“IDSI”), statutory sexual assault, corruption of minors, and indecent
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1
42 Pa.C.S.A. §§ 9541-9546.
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assault. The court sentenced Appellant on November 25, 2009, to an
aggregate term of twelve-and-one-half (12½) to twenty-eight (28) years’
incarceration. Appellant’s sentence included concurrent mandatory
minimum terms of ten (10) to twenty (20) years’ incarceration for the three
IDSI convictions and the conviction for rape of a child, pursuant to 42
Pa.C.S.A. § 9718. Appellant did not file a direct appeal.
On October 12, 2010, Appellant filed his first pro se PCRA petition.
The court appointed counsel, who filed an amended petition. On December
21, 2011, the PCRA court entered an order granting in part and denying in
part the petition. The court concluded Appellant’s convictions for indecent
assault, IDSI, and rape of a child with respect to one victim, C.S.P., should
have merged for sentencing purposes. The court further determined
Appellant performed the act underlying his conviction for rape of a child
before Section 9718 was amended to increase the mandatory minimum
sentence for that offense from five to ten years’ incarceration. After PCRA
counsel requested clarification of the decision, the court entered an amended
order on January 19, 2012, in which it vacated Appellant’s sentences for
rape of a child, IDSI, and indecent assault with respect to C.S.P., and
declared the mandatory minimum sentence applicable to Appellant’s rape
conviction under Section 9718 was five years’ incarceration. The court
denied PCRA relief in all other respects, including Appellant’s claim that
additional charges should have merged for sentencing. Appellant appealed
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the PCRA court’s order on February 21, 2012, after the court had scheduled
a hearing to resentence Appellant in accordance with the order.2 On March
30, 2012, the court resentenced Appellant to a mandatory minimum term of
five (5) to ten (10) years’ incarceration for the rape of a child conviction and
merged the indecent assault and IDSI convictions relating to C.S.P. The
court re-imposed the original sentences for all other convictions, which
resulted in a new aggregate sentence of twelve (12) to twenty-six years
(26) years’ incarceration.3
This Court affirmed the PCRA court’s January 19, 2012 order on
November 1, 2012, and the Pennsylvania Supreme Court denied allowance
of appeal on March 26, 2013. See Commonwealth v. Downward, 63
A.3d 818 (Pa.Super. 2012) (unpublished memorandum), appeal denied, 619
Pa. 698, 63 A.3d 1243 (2013) (rejecting Appellant’s additional merger
claims).
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2
The January 19, 2012 order granting in part and denying in part
Appellant’s PCRA petition constituted a final order for purposes of appeal.
Therefore, Appellant’s notice of appeal was not premature, even though the
court had yet to resentence Appellant in accordance with that order. See
Commonwealth v. Gaines, 127 A.3d 15 (Pa.Super. 2015) (en banc)
(holding PCRA court’s order, which granted sentencing claim and denied all
claims for new trial, was final appealable order; period for filing appeal
began to run on date of that order, rather than on date trial court
resentenced defendant pursuant to order).
3
The PCRA court’s order did not state it was vacating any of Appellant’s
sentences other than those for rape of a child, indecent assault, and IDSI
with respect to C.S.P. Nevertheless, the court’s resentencing order indicates
it re-imposed the original sentences for the remaining convictions.
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Appellant filed his second pro se PCRA petition on April 23, 2013,
which the PCRA court denied as untimely on May 23, 2013. This Court
affirmed the PCRA court’s order on April 9, 2014. See Commonwealth v.
Downward, 102 A.3d 526 (Pa.Super. 2014) (unpublished memorandum).
On April 16, 2015, Appellant pro se filed the instant “motion for correction of
sentence nunc pro tunc,” which the PCRA court denied on May 13, 2015.4
On June 12, 2015, Appellant timely filed a pro se notice of appeal. 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.
Appellant raises two issues for our review:
WHETHER THE [PCRA] COURT ABUSED ITS DISCRETION
AND/OR COMMITTED AN ERROR OF LAW WHEN IT
REFUSED TO CORRECT AN UNCONSTITUTIONAL
SENTENCING [STATUTE] THAT IS NOW VOID AB INITIO?
WHETHER…APPELLANT HAS AN EQUAL PROTECTION
RIGHT UNDER THE FOURTEENTH AMENDMENT OF THE
UNITED STATES CONSTITUTION TO A RE-SENTENCING
HEARING JUST LIKE THOSE PRISONERS…WHO[SE]
SENTENCES WERE VACATED BASED UPON
UNCONSTITUTIONAL [STATUTES]?
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4
Because the court did not treat Appellant’s filing as a PCRA petition, it did
not issue notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P.
907. Nevertheless, Appellant does not raise the issue of Rule 907 notice on
appeal. See Commonwealth v. Williams, 909 A.2d 383, 384 n.4
(Pa.Super. 2006) (stating court’s failure to provide Rule 907 notice is not
reversible error or even ground for remand, where petitioner has failed to
raise issue on appeal). Further, where a PCRA petition is untimely in all
respects, the court’s failure to issue Rule 907 notice is not reversible error.
Commonwealth v. Pursell, 561 Pa. 214, 225 n.7, 749 A.2d 911, 917 n.7
(2000); Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa.Super. 2007).
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(Appellant’s Brief at 4).
In his first issue, Appellant argues his mandatory minimum sentences
are illegal in light of 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).5 Appellant contends no statutory authorization exists
to support his mandatory minimum sentences as a result of those decisions.
Appellant asserts the trial court had jurisdiction over his case and retained
inherent authority to correct his illegal sentence at any time. Appellant
concludes this Court should vacate his judgment of sentence and remand for
resentencing. We disagree.
Generally, “a written post-sentence motion shall be filed no later than
10 days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). An untimely
post-sentence motion filed after the conclusion of the direct appeal process,
which raises a claim for relief contemplated by the PCRA, should be treated
as a PCRA petition. Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super.
2013). See also Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super.
2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (stating attack on
legality of sentence is cognizable under PCRA).
The timeliness of a PCRA petition is a jurisdictional requisite.
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5
The Pennsylvania Supreme Court recently affirmed this Court’s decision in
Wolfe. See Commonwealth v. Wolfe, ___ A.3d ___, 2016 WL 3388530
(Pa. filed June 20, 2016).
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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
which the late filing of a petition will be excused. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii). 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)(iii). A petitioner asserting a timeliness exception must file a
petition within sixty days of the date the claim could have been presented.
42 Pa.C.S.A. § 9545(b)(2).
Instantly, the trial court initially sentenced Appellant on November 25,
2009. Appellant did not file a direct appeal. Appellant filed his first PCRA
petition on October 12, 2010, which the court granted in part and denied in
part. On March 30, 2012, pursuant to its order granting partial PCRA relief,
the court resentenced Appellant on his rape of a child conviction and merged
his convictions of IDSI and indecent assault with respect to C.S.P. The court
re-imposed Appellant’s original sentences for all other convictions, including
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the two mandatory minimum IDSI sentences with respect to victims D.M.P.
and B.J.P. Appellant filed his second PCRA petition on April 23, 2013, which
was denied as untimely. On April 16, 2015, Appellant filed the instant
“motion for correction of sentence nunc pro tunc,” in which he raised an
Alleyne challenge to his IDSI sentences with respect to D.M.P. and B.J.P.
Because Appellant’s direct appeal process had already concluded when he
filed the “motion,” which challenged the legality of those two IDSI
sentences, the court should have treated his filing as a PCRA petition. See
Ruiz, supra; Taylor, supra; Fowler, supra.
Further, the court’s grant of partial relief on Appellant’s first PCRA
petition, which resulted in resentencing on March 30, 2012, did not “reset
the clock” for purposes of calculating the date Appellant’s judgment of
sentence became final. See Commonwealth v. Keever, 947 A.2d 782
(Pa.Super. 2008) (stating successful PCRA petition does not affect
calculation of finality of judgment of sentence where relief granted neither
restored petitioner’s direct appeal rights nunc pro tunc nor disturbed
conviction, but affected petitioner’s sentence only). Therefore, for purposes
of the PCRA, Appellant’s judgment of sentence became final on Monday,
December 28, 2009, upon expiration of the time to file a direct appeal with
this Court from the original date of sentencing on November 25, 2009. See
42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Consequently, when properly
construed as a serial PCRA petition, Appellant’s current “motion” is patently
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untimely.6 See 42 Pa.C.S.A. § 9545(b)(1). Appellant failed to plead and
prove any exception to the PCRA’s timeliness requirements. Further, the
new constitutional rule announced in Alleyne does not apply retroactively.
See Commonwealth v. Washington, ___ A.3d ___, 2016 WL 3909088
(Pa. filed July 9, 2016). Moreover, the trial court at no time ever
granted Appellant leave to file a post-sentence motion nunc pro tunc.
Therefore, any “motion for correction of sentence nunc pro tunc” at this
juncture would be untimely in the context of Rule 720. See Pa.R.Crim.P.
720(A)(1). Additionally, the alleged sentencing error at issue is not the type
of “patent” or “obvious” error that a court has inherent authority to correct.
See Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57 (2007) (stating
court has inherent power to correct sentencing errors in absence of
traditional jurisdiction only where sentencing order contains patent and
obvious mistake). Based on the foregoing, the court properly dismissed
Appellant’s “motion for correction of sentence nunc pro tunc” as untimely.
In his second issue, Appellant argues his mandatory minimum
sentences violate his due process and equal protection rights because other
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6
The use of the original date of sentencing for purposes of determining the
timeliness of Appellant’s current PCRA petition (which technically attacks the
new sentence imposed on March 30, 2012) could conceivably cause some
confusion. We do not, however, need to address the matter in this appeal.
Appellant did not file a direct appeal from his new sentence. Thus, even if
we used the amended sentence date March 30, 2012, as the relevant date
for determining when Appellant’s judgment of sentence became final, the
current PCRA petition is still time-barred.
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defendants sentenced under unconstitutional statutes have had their
sentences vacated. Appellant concludes he is similarly entitled to
resentencing. We cannot agree.
As a preliminary matter, issues not raised before the PCRA court are
waived on appeal. Commonwealth v. Lauro, 819 A.2d 100 (Pa.Super.
2003), appeal denied, 574 Pa. 752, 830 A.2d 975 (2003). See also
Pa.R.A.P. 302(a) (stating: “Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal”). Likewise, any issue not
raised in a Rule 1925(b) statement will be deemed waived for appellate
review. Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005).
Instantly, Appellant failed to raise his due process/equal protection
claim in his “motion for correction of sentence nunc pro tunc.” Appellant
also failed to articulate the issue in his Rule 1925(b) statement. Thus,
Appellant’s second issue is waived. See id.; Lauro, supra. Moreover,
Appellant’s “motion for correction of sentence nunc pro tunc” remains time-
barred under the PCRA, so the court would have lacked jurisdiction to
entertain Appellant’s due process/equal protection challenge even if he had
raised it in his “motion.” Accordingly, we affirm.
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Order affirmed.
Judge Musmanno joins this memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2016
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