J-S64012-16


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.
J-S64012-16


              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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J-S64012-16



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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J-S64012-16



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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