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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL GEORGE FREDERICK
Appellant No. 557 EDA 2016
Appeal from the PCRA Order January 20, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No: CP- 15 -CR- 0000311 -2009
BEFORE: STABILE, SOLANO, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 08, 2016
Appellant, Paul George Frederick, appeals pro se from the January 20,
2016 order entered in the Court of Common Pleas of Chester County ( "PCRA
court ") dismissing his petition pursuant to the Post Conviction Relief Act
( "PCRA "), 42 Pa.C.S.A. §§ 9541 -46. Upon review, we affirm.
The PCRA court summarized the relevant background of this matter as
follows.
On July 9, 2010, [Appellant] pled guilty to two (2)
counts of Involuntary Deviate Sexual Intercourse [(IDSI)]
and two counts of Endangering the Welfare of a Child
[(EWOC)]. Sentencing was deferred until an evaluation of
[Appellant] could be completed by the State Sexual
Offender Assessment Board. Another hearing was held on
* Former Justice specially assigned to the Superior Court.
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October 1, 2010, during which [Appellant] was found to be
a sexually violent predator, and he was sentenced to 5 to
10 years incarceration.
[Appellant] filed his PCRA [p]etition on August 4,
2015. [Appellant was appointed counsel on August 10,
2015. Counsel filed a petition for leave to withdraw
pursuant to Turner/Finley1 on September 14, 2015.] On
November 2, 2015, the [PCRA] court entered an [o]rder
giving [Appellant] notice of intent to dismiss the [p]etition
without a hearing. The [p]etition was ultimately dismissed
by [o]rder dated January 20, 2016. [Appellant] now
appeals the dismissal of his PCRA [p]etition.
[Appellant] filed his [n]otice of [a]ppeal on February
12, 2016. On February 18, 2016, [Appellant] was ordered
to file a [c]oncise [s]tatement of [e]rrors [c]omplained of
on [a]ppeal, which we[re] received on March 10, 2016.
PCRA Court Opinion, 3/17/16, at 1 -2.
Before this Court addresses the merits of Appellant's issues,2 we must
determine whether this Court can entertain Appellant's appeal. Appellant
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
2 Appellant raised the following issues on appeal:
I. Did the [PCRA court] err in denying the [PCRA] [p]etition without
a hearing by misapprehending the retrospective application in
Commonwealth v. Hopkins, 117 A.3d 247 (2015) when it's
paradigm, Alleyne v. United States, 133 S.Ct. 2151 (2013)
created a "substantive rule," which "the Constitution requires
State Collateral Review Courts to give retroactive effect to that
rule ?"
II. Did the [PCRA] [c]ourt err in denying the [PCRA] [p]etition
without a hearing when [Appellant] filed the instant [PCRA]
[p]etition timely by filing within sixty (60) days of learning fo the
(Footnote Continued Next Page)
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argues his petition qualifies for the timeliness exception set forth in
§ 9545(b)(1)(iii) because of our Supreme Court's decision in
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). Appellant's Brief at
9.
The PCRA's jurisdictional timeliness provision requires that a petitioner
must file a petition within one year of the date on which his judgment of
sentence becomes final, or plead and prove the applicability of one of the
three statutory exceptions to the one -year time bar. 42 Pa.C.S.A.
§ 9545(b)(1); Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010). Failure to do so deprives the PCRA court of jurisdiction to entertain
the petition. Id.
Appellant's PCRA petition is facially untimely. Appellant was sentenced
on October 1, 2010, and did not file a direct appeal. His judgment became
final on November 1, 2010, and his time to file a PCRA petition expired on
November 1, 2011. Appellant argues that that his petition is timely in light
of the new constitutional rules announced in Alleyne v. United States, 133
(Footnote Continued)
Supreme Court of Pennsylvania's decision in Commonwealth v.
Hopkins, 117 A.3d 247 (2015)?
III. Did the [PCRA] [c]ourt err in denying the [PCRA] [p]etition
without a hearing when [Appellant] contends through the Court's
inherent power, the [PCRA] [c]ourt always retains jurisdiction to
correct his patently unconstitutional, and therefore illegal
sentence?
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S. Ct. 2151 (2013), Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015),
and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Appellant's
argument is fatally flawed because Alleyne and its progeny do not apply
retroactively to cases pending on collateral review. See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016). As a result, Appellant's
petition does not satisfy the new constitutional right exception to the PCRA.
Furthermore, we need not address Appellant's retroactivity argument
under Montgomery, because Appellant did not receive a mandatory
minimum sentence.3 As noted above, Appellant received a five year
minimum sentence as the Commonwealth waived the ten year mandatory
minimum sentence. See Sentencing Order, 10/1/10, at 1. We therefore
affirm the PCRA court's order.
Order affirmed.
Judgment Entered.
J:seph Seletyn,
D.
Prothonotary
Date: 11/8/2016
3 Under § 9718 of the judiciary code, certain IDSI convictions carry a ten -
year mandatory minimum sentence. 42 Pa.C.S.A. § 9718. That section is
unconstitutional under Alleyne. Commonwealth v. Wolfe, 140 A.3d 651,
653 2016 WL 3388530 (Pa. 2016).
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