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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
SHAWN MITCHELL WADSWORTH, : No. 1485 WDA 2016
:
Appellant :
Appeal from the PCRA Order, August 24, 2016,
in the Court of Common Pleas of Armstrong County
Criminal Division at No. CP-03-CR-0000218-2012
BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 15, 2017
Shawn Michael Wadsworth appeals pro se from the August 24, 2016
order denying his serial PCRA1 petition as untimely. After careful review, we
affirm.
The underlying facts and early procedural history of this case were
summarized by both the PCRA court and a prior panel of this court and need
not be reiterated here. See PCRA opinion, 8/24/16 at 1-3;
Commonwealth v. Wadsworth, 104 A.3d 54 (Pa.Super. 2014)
(unpublished memorandum at 1). Appellant filed the instant pro se PCRA
petition, his fourth, on July 20, 2016. On August 2, 2016, the PCRA court
provided appellant with notice of its intention to dismiss his petition without
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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a hearing, pursuant to Pa.R.Crim.P. 907(1). On August 8, 2016, appellant
amended his PCRA petition and filed a handwritten 9-page appendix.
Thereafter, on August 24, 2016, the PCRA court dismissed appellant’s
petition without a hearing. This appeal followed.
The record reflects that appellant’s pro se notice of appeal was
received by the clerk of courts on September 29, 2016, 36 days after the
entry of the August 24, 2016 order dismissing his PCRA petition. Although
appellant’s notice of appeal appears to be untimely on its face, we conclude
that the prisoner mailbox rule2 applies to this case. Here, appellant’s notice
of appeal is dated September 23, 2016 and accompanied by a certificate of
mailing indicating that it was deposited with prison authorities on that date.
Accordingly, we deem the instant appeal to be timely.3
On appeal, appellant raises the following eight issues challenging the
PCRA court’s dismissal of his serial petition as untimely:
1. Did the [PCRA court] commit an abuse of
discretion and/or error of law when it failed to
2
Under the prisoner mailbox rule, an appeal by a pro se prisoner is deemed
filed on the date the prisoner deposits the appeal with prison authorities or
places it in a prison mailbox, though the appeal is actually received after the
deadline for filing an appeal. See Commonwealth v. Chambers, 35 A.3d
34, 38 (Pa.Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012).
3
Although not ordered to do so, appellant filed a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b), on
September 29, 2016. On October 6, 2016, the PCRA court filed a
Rule 1925(a) opinion wherein it references the 10-page memorandum that it
filed in support of the August 24, 2016 order dismissing appellant’s fourth
PCRA petition. (See PCRA court Rule 1925(a) opinion, 10/6/16; PCRA court
opinion, 8/24/16).
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construe appellant’s pro se pleadings liberally
enough to have stated the valid claim(s) upon
which he might prevail and/or consider them to
be filed as the legal vehicle appropriate to be
granted relief?
2. Did the [PCRA court] commit an abuse of
discretion and/or error of law when it found
appellant’s petition, which it treated as a PCRA,
to be untimely on its face and lacking in merit?
3. Did the [PCRA court] commit an abuse of
discretion and/or error of law when it failed to
vacate appellant’s illegal conviction with its
inherent authority, despite the inconsistency of
the verdict?
4. Did the [PCRA court] commit an abuse of
discretion and/or error of law when it failed to
vacate appellant’s illegal conviction with its
inherent authority, despite the statutes of
which he was convicted being repealed?
5. Did the [PCRA court] commit an abuse of
discretion and/or error of law when it found
that the repealed subsection of 42 Pa.C.S.[A.]
§ 9718 with which appellant was sentenced
would not have been likewise found to be
unconstitutional?
6. Did the [PCRA court] commit an abuse of
discretion and/or error of law when it failed to
vacate appellant’s illegal sentence with its
inherent authority, despite the mandatory
minimum sentencing statutes used being
facially unconstitutional, nonseverable (sic),
and void?
7. Did the [PCRA court] err by failing to exercise
its inherent authority to correct appellant’s
illegal conviction and sentence due to
violations of his many significant constitutional
rights implied but not directly cognizable?
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8. Is appellant legally innocent of the charges for
which he was found guilty and incarcerated?
Appellant’s brief at 4.
Before we address the merits of appellant’s arguments, we must first
consider the timeliness of appellant’s PCRA petition because it implicates the
jurisdiction of this court and the PCRA court. Commonwealth v. Davis, 86
A.3d 883, 887 (Pa.Super. 2014) (citation omitted).
To be timely, a PCRA petition must be filed within
one year of the date that the petitioner’s judgment
of sentence became final, unless the petition alleges
and the petitioner proves one or more of the
following statutory exceptions:
(i) the failure to raise the claim previously
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.A. § 9545(b)(1).
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Commonwealth v. Marshall, 947 A.2d 714, 719-720 (Pa. 2008) (some
citations omitted). “[A]n untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the three limited
exceptions to the time for filing the petition, set forth at [42 Pa.C.S.A.
§ 9545] are met.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa.Super.
2014) (footnote omitted).
Instantly, appellant’s judgment of sentence became final on
December 8, 2012, 30 days after the trial court imposed its judgment of
sentence and the time for filing a direct appeal with this court expired. See
42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment becomes 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[]”). Appellant’s instant PCRA
petition, his fourth, was filed on July 20, 2016 and is patently untimely,
unless one of the three statutory exceptions to the PCRA’s one-year
jurisdictional time-bar applies.
The crux of appellant’s arguments on appeal is that the PCRA court
erred in denying his petition as untimely because his sentence violated
Alleyne v. United States, U.S. , 133 S.Ct. 2151 (2013), and this
court’s subsequent decision in Commonwealth v. Wolfe, 106 A.3d 800
(Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016). (Appellant’s brief at
16-18.) Appellant further posits that Alleyne and its progeny announced a
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new constitutional right under Section 9545(b)(1)(iii) that applies
retroactively. (Id. at 19-24.)
In Alleyne, the United States Supreme Court held that the Sixth
Amendment requires 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.” Alleyne, 133 S.Ct. at 2155 (citation omitted).
Thereafter, in Wolfe, a panel of this court held that the version of
mandatory minimum sentencing provisions set forth in 42 Pa.C.S.A. § 9718
that were in effect from January 1, 2007 until August 17, 2014, were
unconstitutional in their entirety in light of Alleyne and subsequent
decisions by this court. Wolfe, 106 A.3d at 806, citing, inter alia,
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014), appeal
denied, 121 A.3d 496 (Pa. 2015) (en banc). Appellant maintains that
because Section 9718 was invalidated by Alleyne, he is entitled to be
resentenced without the application of any mandatory minimum sentencing
provisions. (Appellant’s brief at 16-24.) We disagree.
Instantly, appellant was sentenced on November 8, 2012, to an
aggregate term of 5 to 10 years’ imprisonment imposed after a jury found
him guilty of two counts of failure to comply with registration of sexual
offenders requirements.4 Alleyne, in turn, was decided on June 17, 2013.
Contrary to appellant’s contention, this court has expressly rejected the
4
18 Pa.C.S.A. § 4915(a)(1) and (a)(3), respectively.
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notion that Alleyne applies retroactively to cases on collateral review. See
Commonwealth v. Washington, 142 A.3d 810, 814-815 (Pa. 2016)
(holding that the Alleyne decision does not apply retroactively to collateral
attacks upon mandatory minimum sentences advanced in PCRA
proceedings). Accordingly, we agree with the PCRA court that Alleyne and
its progeny do not apply retroactively to the instant matter, which was
already at the PCRA review stage at the time Alleyne was decided.
Additionally, the record further reflects that appellant was not sentenced to
the mandatory minimum sentencing provisions set forth in Section 9718.
Rather, appellant was sentenced pursuant to the now-repealed 42 Pa.C.S.A.
§ 9718.3(a)(1)(iii) and (iv). Accordingly, appellant’s claim in this regard
warrants no relief.
Lastly, even if any of remaining claims set forth in appellant’s brief
met the underlying requirements of Section 9545(b)(1), he still would not be
entitled to any relief. (See appellant’s brief at 11-16, 24-29.) Appellant has
failed to demonstrate that he raised any of his claims within 60 days of the
date the claim could have been presented, as required by
Section 9545(b)(2). To fulfill the 60-day requirement, appellant needed to
file his petition within 60 days from the date Alleyne was decided. See
Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012)
(concluding that, “the sixty-day period begins to run upon the date of the
underlying judicial decision[,]” not the date appellant became aware of the
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decision). As noted, the Supreme Court’s decision in Alleyne was filed on
June 17, 2013, and appellant first raised an Alleyne issue in his untimely
third petition filed on October 17, 2014. Appellant’s instant PCRA petition, in
turn, was filed 21 months later on July 20, 2016. Thus, appellant’s petition
is untimely on this basis as well.
Accordingly, we find no error on the part of the PCRA court in
dismissing appellant’s fourth petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2017
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