J-S64033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GLENN GEORGE DOSTER

                            Appellant               No. 363 EDA 2016


                 Appeal from the PCRA Order January 14, 2016
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0002246-1990
                            CP-09-CR-0002247-1990
                            CP-09-CR-0002248-1990
                            CP-09-CR-0002249-1990
                            CP-09-CR-0002250-1990
                            CP-09-CR-0002251-1990
                            CP-09-CR-0002252-1990
                            CP-09-CR-0002253-1990


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.                     FILED AUGUST 24, 2016

        Appellant Glenn George Doster appeals, pro se, the order entered in

the Court of Common Pleas of Bucks County on January 14, 2016,

dismissing as untimely his fourth petition filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 After our review, we affirm.

        In 1990, Appellant pleaded guilty to multiple counts of Involuntary

Deviate Sexual Intercourse (IDSI), Statutory Rape, Indecent Assault and

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-46.


*Former Justice specially assigned to the Superior Court.
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related charges arising out of his contact with nine minor boys in 1989.

Appellant was sentenced and thereafter filed two motions to modify his

sentence. The first resulted in a sentence modification and the second was

denied after a hearing on December 3, 1990. Appellant did not file a direct

appeal with this Court, but he did file a PCRA petition on September 27,

2000, and subsequent PCRA petitions followed.

     Appellant filed the instant PCRA petition, his fourth, on September 17,

2015, wherein he claimed the imposition of the mandatory minimum

sentence in his case had been illegal pursuant to the United States Supreme

Court’s decisions in Alleyne v. United States, ___ U.S. ____, 133 S.Ct.

2151, 2163 (2013) (holding that any fact which, by law, increases the

penalty for a crime must be treated as an element of the offense, submitted

to a jury rather than a judge, and found beyond a reasonable doubt and

Montgomery v. Louisiana, ___ U.S. ____, 136 S.Ct. 718 (2016) (holding

its decision in Miller v. Alabama, ___ U.S. ____, 132 S.Ct. 2455 (2012)

prohibiting under Eighth Amendment mandatory life sentences without

parole for juvenile offenders, announced a new substantive constitutional

rule that was retroactive on state collateral review). Appellant also asserted

this Court’s decision in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super.

2014), wherein we held the trial court had imposed an illegal sentence when




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it   ordered    mandatory      minimum         sentences   following   the   appellant’s

conviction of two counts of IDSI and related charges, is dispositive herein. 2

        After notifying Appellant of its intent to dismiss his PCRA petition

pursuant to Pa.R.Crim.P. 907 and following its review of Appellant’s answer

thereto, the trial court denied the petition without a hearing on January 14,

2016.     Appellant filed a timely appeal with this Court, and in his brief,

presents the following Statement of the Questions Involved:


        1.   Whether the denial of [Appellant’s] PCRA Petition was
        unlawful?

        2.     Whether a challenge to a sentence pursuant to Alleyne v.
        U.S. 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), implicates the
        legality of the sentence and therefore [is] non-waivable?


        3.   Whether [c]ontemporaneous convictions of IDSI 18 § 3123
        §§ A1 (4 counts), Rape, 18 § 3121 §§ A1 (4 counts), Indecent
        Assault 18 § 3126§§ A7, Explict [sic] Sexual Material, 18 § 5903
        §§ C1. Simple Assault, 18 § 2701 §§ A Statutory Rape, 18 §
        3122 (3 counts), Corruption of Minors 18 § 6301 §§ A (8
____________________________________________


2
   The procedural posture of Wolfe differs from that presented herein.
During Wolfe’s trial and prior to sentencing, the Supreme Court of the United
States issued its Alleyne decision, the effect of which was to invalidate a
range of Pennsylvania sentencing statutes predicating mandatory minimum
penalties upon non-elemental facts and requiring such facts to be
determined by a preponderance of the evidence at sentencing. See also,
Commonwealth v. Hopkins, ___ Pa. ____, ____, 117 A.3d 247, 262
(2015) (holding that Section 6317 of the Crimes Code is constitutionally
infirm for these reasons, under Alleyne). Recently, our Supreme Court
affirmed this Court’s holding in Wolfe. See Commonwealth v. Wolfe,
2016 WL 3388530, at *10 (Pa. June 20, 2016).




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      counts), allows application of the Mandatory Minimum sentence
      at, 42 PA.C.S.A. § 9718, held void in its entirety and
      unconstitutional by Commonwealth v. Wolfe, 2014 PA. Super
      288, 106 A.3d 800, 2014 PA.LEXIS 4977?


      4.    Does these rulings apply retroactive [sic]?


Appellant’s Brief at 5.

      Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa.Super. 2003) (en banc).             Before addressing the

merits of Appellant's claims, we must first determine whether we have

jurisdiction to entertain the underlying PCRA petition. See Commonwealth

v. Hackett, 598 Pa. 350, 956 A.2d 978, 983 (2008) (explaining that the

timeliness of a PCRA petition is a jurisdictional requisite).

      The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition


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will be excused.   42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

     (i)      the failure to raise a claim previously was the result of
              interference    by    government     officials with    the
              presentation of the claim in violation of the Constitution
              or the law of this Commonwealth or the Constitution or
              law 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 Pennsylvania after
              the time period provide in this section and has been
              held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).   “We emphasize that it is the petitioner

who bears the burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947

A.2d 714, 719 (2008) (citations omitted).

     Instantly, Appellant was sentenced on September 24, 1990, and the

second of his motions for reconsideration of sentence was denied on

December 3, 1990. Appellant did not file a timely appeal with this Court.

Therefore, Appellant’s judgment of sentence became final thirty days

thereafter on January 3, 1991. 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


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review[ ]”).    In Appellant’s case, a timely first petition for post-conviction

relief would have had to have been filed by January 16, 1997, pursuant to

the grace period provided for petitioners whose judgments of sentence

became    final   prior    to   the     effective   date    of   the    amended      PCRA.

Commonwealth v. Davis, 916 A.2d 1206, 1208-09 (Pa.Super. 2007)

(explaining that the 1995 amendments to the PCRA provide that if a

judgment of sentence became final before January 16, 1996, the effective

date of the amendments, a PCRA petition will be considered timely if filed

within one year of the effective date of the amendments, or by January 16,

1997; however, this grace period applies only to first PCRA petitions).

Appellant filed the instant PCRA petition on September 17, 2015; therefore,

it is patently untimely.

      Appellant argues his petition is not time-barred because the newly

recognized     constitutional   right     exception   set    forth     in   42   Pa.C.S.   §

9545(b)(1)(iii) applies. Specifically, Appellant avers he is serving an “illegal

sentence” and is entitled to “retroactive relief” under Alleyne. Appellant’s

Brief at 6.    To avail himself of the newly-discovered constitutional right

exception to the PCRA time bar, Appellant would have had to have filed the

instant PCRA petition within sixty (60) days of the date of the Alleyne

decision. See 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Brandon, 51

A.3d 231, 235 (Pa.Super. 2012) (“the sixty-day period begins to run upon

the date of the underlying judicial decision”). That case was decided on June


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17, 2013; therefore, Appellant must have pled this exception thereunder in a

PCRA petition filed by August 17, 2013. The filing of the instant petition on

September 17, 2015, clearly falls outside the sixty (60) day statutory

requirement.

      Moreover, although the United States Supreme Court has not ruled

upon the retroactive effect of Apprendi or Alleyne, the Supreme Court of

Pennsylvania recently filed an Opinion in Commonwealth v. Washington,

2016 WL 3909088 (Pa. July 19, 2016) wherein it addressed the retroactive

effect of Alleyne and held “that Alleyne [ v. United States, ___ U.S.

____, 133 S.Ct. 2151 (2013),] does not apply retroactively to cases pending

on collateral review. . . .”   Id. at *8. As such, Appellant cannot successfully

claim the aforesaid caselaw renders his sentence “void in its entirety,

unconstitutional and illegal” because he was entitled to “retroactive

application” of a newly-recognized constitutional right thereunder.

        Based on the foregoing, we find the PCRA court lacked jurisdiction to

consider the merits of Appellant’s fourth PCRA petition and properly

dismissed it as untimely filed.      Accordingly, we affirm the PCRA court’s

January 14, 2016, Order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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