J-S23011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DWAYNE EDWARD MAURER

                            Appellant                 No. 2776 EDA 2015


                  Appeal from the PCRA Order August 20, 2015
              in the Court of Common Pleas of Montgomery County
              Criminal Division, at No(s): CP-46-CR-0001986-2010


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                                FILED MAY 20, 2016

        Appellant, Dwayne Edward Maurer, appeals pro se from the order

dismissing as untimely his second petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On December 7, 2010, Appellant entered a negotiated guilty plea to

two counts of involuntary deviate sexual intercourse as result of his actions

toward his stepdaughter who, at the time of the offenses, was under the age

of thirteen. In return, the Commonwealth agreed to withdraw multiple

related charges. On March 18, 2011, in accordance with the plea agreement,

the trial court sentenced Appellant to a term of ten to twenty years of



____________________________________________



    Former Justice specially assigned to the Superior Court.
J-S23011-16



incarceration for the one count and a consecutive ten-year probationary

term for the other count. Appellant did not file a direct appeal.

      On February 3, 2012, Appellant filed a pro se PCRA petition, and the

PCRA court appointed counsel. PCRA counsel filed a petition to withdraw and

“no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). The PCRA court issued notice of its intent to dismiss Appellant’s PCRA

petition without a hearing. The court also granted PCRA counsel permission

to withdraw.    Appellant filed a response, but the PCRA court dismissed

Appellant’s petition.

      Appellant appealed to this Court. In an unpublished memorandum

decision a panel affirmed the order denying Appellant post-conviction relief.

See Commonwealth v. Maurer, 83 A.3d 1068 (Pa. Super. 2013) (Table).

Our Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Maurer, 2014 Pa. LEXIS 303 (Pa. 2014) (Table).

      On June 29, 2015, Appellant filed the pro se PCRA petition at issue.

The PCRA court issued notice of intent to dismiss his petition without a

hearing. Appellant filed a response. The PCRA court subsequently denied

Appellant’s PCRA petition. This timely appeal follows.

      Appellant raises the following issues:

      I.    Did the [PCRA court] err in dismissing the instant [PCRA
            petition] as untimely when the instant petition was filed
            within sixty (60) days of learning of the United States
            Supreme Court’s decision in Alleyne v. United States,


                                     -2-
J-S23011-16


              [133 S.Ct. 2151 (2013)], thereby rendering his sentence
              unconstitutional and illegal?

       II.    Did the [PCRA court] err in dismissing the instant [PCRA
              petition] by stating the Court lacks jurisdiction to consider
              the merits when the [trial court] always retains jurisdiction
              to correct an illegal sentence and the inherent power to do
              so?

Response Brief for Appellant at 3.1

       In order to address Appellant’s issues, we must first determine

whether the PCRA court correctly determined that Appellant untimely filed

his second PCRA petition. 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 the petitioner proves, that

an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii).    A   PCRA     petition   invoking   one   of   these   statutory

exceptions must “be filed within 60 days of the date the claims could have

been presented.” Hernandez, 79 A.3d 651-52 (citations omitted). See also

42 Pa.C.S.A. § 9545(b)(2).

       Appellant’s judgment of sentence became final on April 18, 2011,

when the thirty-day time period for filing an appeal to this Court expired.
____________________________________________


1
 Although Appellant inartfully raised these same claims in his original brief,
we cite them as clarified in Appellant’s response brief for ease of discussion.




                                           -3-
J-S23011-16


See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant needed to file the PCRA

petition at issue by April 18, 2012, in order for it to be timely. Appellant filed

the instant petition on June 9, 2015; it is untimely unless he has satisfied his

burden of pleading and proving that one of the enumerated exceptions

applies.

      Although Appellant challenges the legality of his sentence, this claim

still must be presented in a timely PCRA petition. See Commonwealth v.

Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). Appellant has failed to prove

any exception to the PCRA’s time bar. Initially, nowhere in our review of the

record do we find any indication that the sentence to which Appellant agreed

as part of his guilty plea included a mandatory minimum. In fact, as the trial

court noted at sentencing, Appellant agreed to imposition of the maximum

sentence on one count, and a consecutive ten-year probationary term on the

other count. See N.T., 3/18/11, at 13.          In return, the Commonwealth

withdrew multiple charges. See id., at 14.

      Even   if   Appellant’s   negotiated   sentence   included   a   mandatory

minimum, he would still not be entitled to relief. Appellant’s claim fails for

several reasons. First, as the PCRA Court aptly explained:

            Our Supreme Court has held that “subsequent decisional
      law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)
      of the PCRA.” Commonwealth v. Brandon, 51 A.3d 231, 235
      (Pa. Super. 2012) (citing Commonwealth v. Watts, 23 A.3d
      980, 987 (Pa. 2011)). Therefore, this claim fails.

           Even if Alleyne [and its progeny] were somehow to satisfy
      an exception to the time bar, [Appellant] did not raise [his claim]


                                      -4-
J-S23011-16


      until well beyond sixty days after those cases were decided.
      Date of case, not date of discovery is used for calculating
      exceptions. Brandon, 51 A.3d 235 (citation omitted).

PCRA Court Opinion, 10/21/15, at 6-7.

      Moreover, to the extent Appellant argues he should benefit from

retroactive application of the United States Supreme Court’s decision in

Alleyne, his claim fails. In Alleyne, the high Court held that, other than the

fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory minimum must be submitted to a jury and

proved beyond a reasonable doubt. See 131 S.Ct. at 2160-61. Assuming,

for the sake of argument, the Court recognized a new constitutional right in

Alleyne, neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held the right applies retroactively to cases in which the

judgment of sentence had become final. See Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014). Here, Appellant’s judgment of

sentence became final in 2011. Accordingly, the Court’s decision in Alleyne

does not apply. See Miller. See also Commonwealth v. Riggle, 119 A.3d

1058, 1067 (Pa. Super. 2015) (“Alleyne is not entitled to retroactive effect

in [the] PCRA setting.”).

      In sum, our review of the record supports the PCRA court’s conclusions

that Appellant’s second PCRA petition is facially untimely, and that he has

failed to establish an exception to the PCRA’s time bar. Therefore, because

the PCRA court correctly found that it was without jurisdiction to address




                                    -5-
J-S23011-16



Appellant’s substantive claims, we affirm its order denying post-conviction

relief.

          Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




                                   -6-
