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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DONALD LEROY SHOUEY, JR.
Appellant No. 2208 MDA 2015
Appeal from the PCRA Order December 15, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001340-2011
BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 25, 2016
Appellant, Donald Leroy Shouey, Jr., appeals from the order dismissing
as untimely his second petition for post-conviction relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The pertinent facts and procedural history may be summarized as
follows. Following a jury trial, Shouey was convicted of sexual assault,
aggravated indecent assault, and indecent assault. The trial court sentenced
him to an aggregate term of 11 to 22 years’ imprisonment. Shouey did not
file a direct appeal.
Shouey filed a timely pro se PCRA petition on April 29, 2013. The PCRA
court appointed counsel, who filed an amended PCRA petition. Shouey later
withdrew his PCRA petition.
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On July 22, 2015, Shouey filed a second pro se PCRA petition, alleging
that his mandatory minimum sentence was unconstitutional in light of the
Supreme Court of Pennsylvania’s decision in Commonwealth v. Hopkins,
117 A.3d 247 (Pa. 2015). Upon receipt of the petition, the PCRA court
appointed counsel. The PCRA court later issued notice of its intent to dismiss
the petition without a hearing. PCRA counsel did not file a response. The
PCRA court then dismissed Shouey’s petition as untimely on December 15,
2015. This timely appeal follows.
Prior to addressing Shouey’s substantive claims, we must first
determine whether the PCRA court correctly concluded that Shouey’s latest
PCRA petition was untimely filed.
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 proves an exception to the time for
filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claims could have been presented.” Hernandez, 79 A.3d at
651-652 (citing 42 Pa.C.S.A. § 9545(b)(2)). Exceptions to the time bar must
be pled in the petition, and may not be raised for the first time on appeal.
See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see
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also Pa.R.A.P. 302(a) (providing that issues not raised before the lower
court are waived and cannot be raised for the first time on appeal).
Shouey’s judgment of sentence became final on May 19, 2013, when
the thirty-day time period for filing an appeal to this Court expired. See 42
Pa.C.S.A. § 9545(b)(3). Therefore, Shouey needed to file the petition at
issue by May 19, 2014 in order for it to be timely. He filed the instant
petition over a year later; it is untimely unless Shouey has satisfied the
burden of pleading and proving one of the timeliness exceptions.
Shouey has failed to prove the applicability of any of the exceptions to
the PCRA’s time bar. Within his PCRA petition, Shouey appears to assert that
he meets the newly discovered constitutional right exception to the PCRA’s
time bar because of the Pennsylvania Supreme Court’s ruling in Hopkins.
See 117 A.3d at 247; see also 42 Pa.C.S.A. § 9545(b)(1)(iii).
There are multiple problems with Shouey’s position. First, the
Hopkins decision did not announce a “new rule,” but simply assessed the
validity of § 6317 under Alleyne and concluded that particular mandatory
minimum sentencing statute was unconstitutional. Even if Hopkins had
announced a new rule, neither our Supreme Court nor the United States
Supreme Court has held that Hopkins applies retroactively to post-
conviction petitions. Consequently, to the extent Shouey attempts to rely on
Hopkins, he has not satisfied the timeliness exception of § 9545(b)(1).
Furthermore, Shouey’s reliance on Hopkins is entirely misplaced. He was
never sentenced pursuant to § 6317 and any holding invalidating § 6317
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would have no effect on his sentence. Additionally, even assuming that
Shouey relied on Hopkins to assert that Alleyne announced a new
constitutional right, our Supreme Court recently held that “Alleyne does not
apply retroactively to cases pending on collateral review. . . .”
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Finally,
Shouey fails to assert this exception in his Rule 1925(b) statement or in his
appellate brief. By abandoning this argument, he has waived all claims that
the newly discovered constitutional right exception applies to his PCRA
petition. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)
(“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived.”).
Additionally, in his appellate brief, Shouey asserts that he raised the
governmental interference exception to the PCRA time bar by asserting that
the Commonwealth and trial court misrepresented the application of a
mandatory sentence to Shouey’s charges. See Appellate Brief, at 4. In order
for a petitioner to obtain relief from the PCRA’s time bar based upon
government interference, he must plead that the “failure to raise the claim
[or claims] previously was the result of interference by government officials
with the presentation of the claim [or claims] in violation of the Constitution
or laws of this Commonwealth or the Constitution or laws of the United
States.” 42 Pa.C.S.A. §9545(b)(1)(i). However, in his PCRA petition, Shouey
did not specifically plead that government interference prevented him from
presenting his claim. Shouey only avers that his sentence was illegal due to
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this misrepresentation. Shouey did not claim that he was prevented from
raising PCRA claims based upon governmental interference until he appealed
the PCRA court’s dismissal of his petition. Therefore, because Shouey did not
effectively raise this exception to the PCRA’s time bar before the PCRA court,
he has waived this issue on appeal. See Burton, 936 A.2d at 525.
In sum, Shouey’s latest PCRA petition is untimely, and he has waived
all exceptions to the timeliness requirements of the PCRA. Therefore, the
PCRA court properly concluded that it lacked jurisdiction and correctly denied
Shouey post-conviction relief without a hearing.
Order affirmed.
Judge Jenkins joins the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2016
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