J-S33017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DAVID R. MCGINLEY                          :
                                               :
                      Appellant                :   No. 1940 MDA 2016

                 Appeal from the PCRA Order October 27, 2016
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001634-1994


BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                      FILED JUNE 06, 2017

        David R. McGinley appeals pro se from the order entered in the

Dauphin County Court of Common Pleas, dismissing his serial Post

Conviction Relief Act (“PCRA”) petition, 42 Pa.C.S. §§ 9541-9546. McGinley

seeks relief from the judgment of sentence of 10 to 30 years’ imprisonment,

imposed after he was found guilty by a jury of involuntary deviate sexual

intercourse (ISDI), aggravated indecent assault, indecent assault, indecent

exposure, and corruption of minors. 1, 2 Based upon the following, we affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.       §§   3123(5),      3125(6),    3126(a)(6),   3127,   and   6301,
respectively.
2
  McGinley was sentenced as follows: for IDSI, 7 to 20 years’ imprisonment;
for aggravated indecent assault, 3 to 10 years’ imprisonment; for indecent
assault, 6 to 24 months’ imprisonment; for indecent exposure, 6 to 12
(Footnote Continued Next Page)
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      The facts supporting McGinley’s convictions are set forth in this Court’s

decision affirming the judgment of sentence. See Commonwealth v.

McGinley, 695 A.2d 438 (Pa. Super. 1997) (unpublished memorandum),

appeal denied, 698 A.2d 65 (Pa. 1997). A detailed recitation of the

procedural history of this case is set forth in this Court’s decision affirming

the denial of McGinley’s previous PCRA petition.     See Commonwealth v.

McGinley, 134 A.3d 108 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, ___ A.3d ___ (Pa. filed Sept. 23, 2016).

      Procedurally, it is important to note that the instant pro se petition was

filed on August 2, 2016, while McGinley’s petition for allowance of appeal

regarding his previous PCRA petition was pending in our Supreme Court.

See Commonwealth v. Lark, 746 A.2d 585 (2000) (holding court has no

jurisdiction to review subsequent PCRA petition that is filed while appeal

from previous PCRA petition is still pending). However, the PCRA court ruled

on the present petition after the denial of the petition for allowance of

appeal.

      The instant PCRA petition is facially untimely, and cannot be reviewed

unless McGinley pleads and proves a statutory exception to the PCRA time
                       _______________________
(Footnote Continued)

months’ imprisonment; and for corruption of minors, 12 to 24 months’
imprisonment. All sentences were made to run concurrently except for that
resulting from the IDSI conviction, which was to run consecutive to the
remaining sentences. Thus, the aggregate sentence was 10 to 30 years’
imprisonment.




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J-S33017-17



bar.   42 Pa.C.S. § 9545(b)(1)(i-iii).   Any petition invoking one of these

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

been presented. 42 Pa.C.S. § 9545(b)(2).

       Here, McGinley asserts that he received a mandatory minimum

sentence for IDSI, and that his sentence is therefore illegal pursuant to

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. June 20, 2016) (holding 42

Pa.C.S. § 9718, the statute providing a mandatory minimum sentence for

IDSI crimes, is unconstitutional under Alleyne v. United States, 133 S. Ct.

2151 (2013)). As such, McGinley’s claim implicates the PCRA exception that

requires a petitioner    to   plead and prove    “the right asserted is a

constitutional right that was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania after the time period provided

in this section and has been held by that court to apply retroactively.” 42

Pa.C.S. § 9545(b)(1)(iii).

       However, the Wolfe Court did not recognize a new constitutional right,

let alone hold that any such right applied retroactively; rather, Wolfe merely

applied Alleyne on direct appeal to hold Section 9718 was unconstitutional.

Furthermore, our Supreme Court has held that Alleyne itself does not apply

retroactively to cases on collateral review where the petitioner’s judgment of

sentence has become final. Commonwealth v. Washington, 142 A.3d

810, 820 (Pa. 2016). Therefore, McGinley’s citation to Wolfe does not

establish the PCRA exception for a new retroactive constitutional right, 42

Pa.C.S. § 9545(b)(1)(iii).

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       In short, because the present petition is patently untimely and does

not satisfy any PCRA statutory exception, the PCRA court properly dismissed

the petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




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