J-S66030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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