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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID T. WAGNER
Appellant No. 728 WDA 2016
Appeal from the PCRA Order May 6, 2016
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000524-2008
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 13, 2016
David T. Wagner (“Appellant”) appeals from the order entered in the
Crawford County Court of Common Pleas, which dismissed his petition filed
for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On November 6, 2008, Appellant pled guilty to two counts of sexual assault
and one count of aggravated indecent assault related to numerous sexual
offenses Appellant committed over a three-month period against his fifteen-
year-old step-daughter. In exchange for his plea, thirty-seven (37) counts
against him were nolle prossed.
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1
42 Pa.C.S. §§ 9541-9546.
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On March 4, 2009, the court sentenced Appellant to five (5) to ten
(10) years’ incarceration for aggravated indecent assault and three (3) to six
(6) years’ incarceration for each of his sexual assault convictions. The court
imposed the sexual assault sentences concurrently to each other, but
consecutively to the aggravated indecent assault sentence, resulting in an
aggregate sentence of eight (8) to sixteen (16) years’ incarceration. On
March 12, 2009, Appellant filed a motion to modify sentence, which the
court denied on March 16, 2009. Appellant did not file a direct appeal.
On November 16, 2015, Appellant filed a pro se “motion to vacate
judgment of sentence, and/or set aside mandatory minimum sentence
pursuant to Alleyne v. United States,[2] nunc pro tunc”. On November 23,
2015, the court treated Appellant’s filing as his first petition filed for relief
pursuant to the PCRA3 and appointed counsel. On March 30, 2016, the court
issued notice of its intent to dismiss Appellant’s petition without a hearing.
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2
___ U.S. ___, 133 S.Ct, 2151, 186 L.Ed.2d 314 (2013). In Alleyne, the
Supreme Court of the United States held that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Id., 133 S.Ct. at 2155.
3
The PCRA court properly considered Appellant’s filing as a PCRA petition.
See Commonwealth v. Taylor, 65 A.3d 462, 466, 467 (Pa.Super.2013)
(“[A]ny motion filed after the finality of a sentence that raises an issue that
can be addressed under the PCRA is to be treated as a PCRA petition.
[Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa.Super.2007)]…, [A]n
untimely post-sentence motion filed after finality of judgment is to be
treated as a PCRA petition.”).
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Appellant filed a counseled response to the notice on April 11, 2016. On
May 6, 2016, the PCRA court dismissed Appellant’s petition.
On May 16, 2016, Appellant timely filed a notice of appeal. On May
17, 2016, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely
complied on May 20, 2016. Appellant raises the following issue for our
review:
WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT PCRA RELIEF IN THE FORM OF VACATING HIS
AGGRAVATED INDECENT ASSAULT SENTENCE THAT
CONTAINED A MANDATORY MINIMUM INCARCERATION
TERM OF FIVE YEARS BASED UPON THE UNITED STATES
SUPREME COURT DECISIONS OF MILLER V. ALABAMA,
[___] U.S. ___, 132 S.CT. 2455[, 183 L.Ed.2d 407]
(2012), ALLEYNE… AND MONTGOMERY V. LOUISIANA,
[___] U.S. ___[, 136 S.Ct 718, 193 L.Ed2d 599] (2016)?
Appellant’s Brief at 7.
Before we address the merits of Appellant’s claim, we must determine
whether his PCRA petition was timely. The timeliness of a PCRA petition
implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord
finality to the collateral review process[,]” the PCRA “confers no authority
upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA
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timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With
respect to jurisdiction under the PCRA, this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed final at
the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed
more than one year after the judgment of sentence becomes final only if the
claim falls within one of the following three statutory exceptions, which the
petitioner must plead and prove:
(i) the failure to raise the claim 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;
(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). Further, if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
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days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Appellant’s judgment of sentence became final on April 15,
2009, when his time to file a direct appeal expired. See 42 Pa.C.S. §
9545(b)(3). Thus, he had until April 15, 2010 to timely file a petition for
relief pursuant to the PCRA. See 42 Pa.C.S. § 9545(b)(1). Appellant’s
petition, filed November 16, 2015, is facially untimely. We must now
determine whether Appellant has pled and proved any of the exceptions to
the PCRA time bar.
Appellant claims that his sentence was illegal pursuant to Alleyne
because the court imposed a five-year minimum sentence on his aggravated
indecent assault conviction pursuant to 42 Pa.C.S. § 9718.4 Appellant
admits that neither the United States Supreme Court nor the Pennsylvania
Supreme Court has held that Alleyne applies retroactively. Appellant
argues, however, that because the United States Supreme Court held that
Miller v. Alabama applies retroactively, “it makes logical sense that
[Alleyne] should and will be applied retroactively to cases such as
[A]ppellant’s.” Appellant’s Brief at 16-17.
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4
This Court struck down § 9718 as unconstitutional pursuant to Alleyne in
Commonwealth v. Wolfe, 106 A.3d 800, 806 (Pa.Super.2014), aff'd, 140
A.3d 651 (Pa.2016).
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Unfortunately for Appellant, to qualify for the constitutional right
exception to the PCRA time limitation, Appellant must plead and prove that
the Supreme Court of Pennsylvania or the Supreme Court of the United
States has recognized a constitutional right and that the right “has been
held by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii)
(emphasis added). In Commonwealth v. Washington, 142 A.3d 810
(Pa.2016), the Supreme Court of Pennsylvania held that Alleyne does not
apply retroactively to cases pending on collateral review. As Appellant
admits, neither the Supreme Court of Pennsylvania nor the Supreme Court
of the United States has held that Alleyne applies retroactively. Thus,
Appellant’s petition remains time-barred, and the PCRA court correctly
determined it lacked jurisdiction to hear it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
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