J-S50028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SCOTT KERNS

                            Appellant                  No. 131 MDA 2016


            Appeal from the PCRA Order Entered December 28, 2015
                In the Court of Common Pleas of Berks County
               Criminal Division at No: CP-06-CR-0000371-2001




BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 22, 2016

        Appellant, Scott Kerns, appeals pro se from the December 28, 2015

order dismissing his thirteenth1 petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        On November 7, 2000, the Commonwealth charged Appellant with

Involuntary Deviate Sexual Intercourse2 (“IDSI”) and other offenses arising

from Appellant’s abuse of the minor daughter of Appellant’s wife. On May
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*
    Former Justice specially assigned to the Superior Court.
1
    This number includes PCRA petitions and other petitions, bearing various
titles, which the trial court treated as PCRA petitions. Appellant also has
sought habeas corpus and other relief in federal court.
2
    18 Pa.C.S.A. § 3123.
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14, 2001, Appellant pled guilty to one count of IDSI. On January 18, 2002,

the trial court sentenced Appellant to 7½ to 20 years of incarceration. This

Court affirmed the judgment of sentence on December 13, 2003. Appellant

filed his timely first PCRA petition on February 14, 2004. The PCRA court

dismissed that petition on June 8, 2004.      This Court affirmed the PCRA

court’s order on March 4, 2005.         Subsequently, Appellant filed serial

petitions in state and federal court. Appellant filed the instant petition, his

thirteenth, on September 24, 2015.

      The PCRA’s jurisdictional timeliness provision states 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 thirteenth PCRA petition is facially untimely.    He argues

that that his petition is timely in light of the new constitutional rule

announced in Alleyne v. United States, 133 S. Ct. 2151 (2013).              In

Alleyne the Supreme Court held that any fact other than a prior conviction

requiring imposition of a mandatory minimum sentence must be found

beyond a reasonable doubt by the trier of fact.        Id. at 2155.    Section

9545(b)(1)(iii) permits an otherwise untimely petition where the petition is


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based on a constitutional right recognized by the United States or

Pennsylvania Supreme Courts.             42 Pa.C.S.A. § 9545(b)(1)(iii).       Section

9545(2) requires that any petition qualifying for an exception under

§ 9545(b)(1) must be filed within 60 days of the first date on which the

claim could have been raised. 42 Pa.C.S.A. § 9545(b)(2). Appellant cannot

file a timely petition under Alleyne because his petition post-dates Alleyne

by more than two years.

        Appellant also cites Montgomery v. Louisiana, 136 S. Ct. 718

(2016) because he believes the Supreme Court’s retroactivity analysis in

that case renders Alleyne retroactive.              To date, the Courts of this

Commonwealth considering the issue have held that Alleyne does not apply

retroactively. See Commonwealth v. Miller, 102 A.3d 988, 994-95 (Pa.

Super.     2014)      (concluding     that     Alleyne   issues   do     not   trigger

§ 9545(b)(1)(iii)).

        Furthermore, we need not address Appellant’s retroactivity argument

under    Montgomery, because             Appellant did   not   receive   a five-year

mandatory minimum sentence.3 As noted above, Appellant received a 7½

year minimum sentence. He argues that his sentence is illegal because the

facts that prompted the trial court to sentence him above the guideline
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3
  Under § 9718 of the judiciary code, certain IDSI convictions carry a five-
year mandatory minimum sentence. 42 Pa.C.S.A. § 9718. That section is
unconstitutional under Alleyne. Commonwealth v. Wolfe, ___ A.3d ___
2016 WL 3388530 (Pa. 2016).



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range were not submitted to a jury and found beyond a reasonable doubt.

Appellant’s Pro Se Brief at 5, 9. The trial court’s exercise of its sentencing

discretion does not implicate Alleyne.     Appellant’s argument is unavailing

even if—contrary to existing precedent—we apply Alleyne retroactively. We

therefore affirm the PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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