J-S96038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

SCOTT LUCE

                            Appellant               No. 988 WDA 2016


                Appeal from the PCRA Order Dated May 9, 2016
               In the Court of Common Pleas of Crawford County
              Criminal Division at No(s): CP-20-CR-0000139-2002
                                          CP-20-CR-0000334-2001

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                           FILED APRIL 10, 2017

        Pro se Appellant, Scott Luce, appeals from the order dismissing his

second Post Conviction Relief Act (“PCRA”)1 petition.   Appellant contends

that his sentence was illegal under Alleyne v. United States, 133 S. Ct.

2151 (June 17, 2013),2 the holding of which he incorrectly contends was

made retroactive under Montgomery v. Louisiana, 136 S. Ct. 718

(Jan. 25, 2016). We quash the appeal as untimely.

        The facts relating to the underlying crimes are unnecessary for our

disposition. Appellant entered an open plea of guilty to aggravated indecent
____________________________________________


1
    42 Pa.C.S. §§ 9541-9456.
2
  Alleyne held that a mandatory minimum sentence is unconstitutional
unless all facts that increase the sentence are proven to a jury beyond a
reasonable doubt. Alleyne, 133 S. Ct. at 2155.
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assault of a child less than thirteen years old3 and statutory sexual assault.4

Commonwealth v. Luce, 143 WDA 2005, at 1-2 (Pa. Super., Sept. 8,

2005).     Appellant was nineteen years old when he committed the above

crimes. Id. at 1. The court sentenced Appellant on November 7, 2002. For

Appellant’s aggravated indecent assault conviction, the court imposed an

aggravated range sentence of four to ten years’ imprisonment. With respect

to his statutory sexual assault conviction, the court sentenced Appellant to

four to ten years’ imprisonment, which was outside of the aggravated range

and made consecutive to the other sentence.        At the time of Appellant’s

sentencing, there were no mandatory minimum sentences for the crimes at

issue.5

        Appellant did not immediately file a direct appeal, but he did file a

successful PCRA petition requesting reinstatement of his direct appeal rights
____________________________________________


3
    18 Pa.C.S. § 3125(a)(7).
4
    18 Pa.C.S. § 3122.1.
5
  In 2004, our Legislature amended 42 Pa.C.S. § 9718 to establish a
mandatory minimum sentence of two and one-half years’ imprisonment for a
conviction of aggravated indecent assault of a child less than thirteen years
old. Act No. 2004-217, P.L. 1703 (Nov. 30, 2004). Subsequently, the
Legislature again amended Section 9718 to set a mandatory minimum
sentence of five years. Act No. 2006-178, P.L. 1567 (Nov. 29, 2006).
Recently, our Supreme Court held Section 9718 unconstitutional in
Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016), a case on direct
appeal and not on collateral review. We have held, however, that imposition
of a standard guideline range sentence that exceeded the mandatory
minimum sentence is not unlawful. See also Commonwealth v. Zeigler,
112 A.3d 656, 662 (Pa. Super. 2015).



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nunc pro tunc. On direct appeal, this Court affirmed. Luce, 143 WDA 2005.

Appellant later filed an untimely first PCRA petition, the PCRA court

dismissed     that   petition,   and   this     Court   affirmed      that    dismissal.

Commonwealth v. Luce, 213 & 216 WDA 2012 (Pa. Super., Sept. 11,

2012).

        The PCRA court docketed Appellant’s second PCRA petition on

March 21, 2016. Appellant’s petition claimed that his sentences were illegal,

citing Montgomery; Alleyne; Miller v. Alabama, 567 U.S. 460 (June 25,

2012) (prohibiting juveniles from being sentenced to mandatory life

sentences without parole); and Teague v. Lane, 489 U.S. 288, 310 (1989)

(a plurality decision holding that a new rule of constitutional law does not

apply    retroactively   to   convictions     that   became   final    prior    to   the

announcement of the new rule).

        On April 6, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of

an intent to dismiss Appellant’s PCRA petition.         The PCRA court docketed

Appellant’s timely response to that notice on April 25, 2016.                Appellant’s

response expanded upon the arguments raised in his petition.

        The PCRA court dismissed Appellant’s petition on May 9, 2016. That

order informed Appellant, among other things, that he had thirty days to file

an appeal. The court mailed the dismissal to Appellant’s prison address via

certified mail.

        The PCRA court docketed Appellant’s notice of appeal on June 29,

2016. Appellant’s notice of appeal contains no other dates; the record does

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not include a certificate of service, envelope, postmark, or any other

indication of when Appellant placed his notice in the prison mail system. In

a Rule 1925(a) opinion, the PCRA court noted that the appeal appeared

untimely. We agree. Because the only information in the record supports

the conclusion that Appellant’s appeal is untimely, we quash the appeal.

      We must address the timeliness of an appeal because we have

jurisdiction only if a timely notice of appeal was filed. Commonwealth v.

Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc), appeal denied,

882 A.2d 477 (Pa. 2005). Here, the only information of record shows that

Appellant did not file his appeal until fifty-one days after entry of the PCRA

court’s May 9, 2016 order dismissing his PCRA petition.          An appeal is

untimely, however, if the notice of appeal is not filed within 30 days.

Pa.R.App.P. 903(a).

      We cannot extend the time for filing an appeal, though we can afford

relief if a notice of appeal is untimely because of fraud or a breakdown in the

processes of the court. Commonwealth v. Patterson, 940 A.2d 493, 498

(Pa. Super. 2007) (citations omitted), appeal denied, 960 A.2d 838 (Pa.

2008).   There is no evidence of fraud or a breakdown of court processes

here, however.    Indeed, Appellant’s brief asserts that “On June 29, 2016

appellant timely filed his notice of appeal,” Appellant’s Brief at 5 (emphasis

added), which suggests that Appellant deliberately filed on that date in a

mistaken belief that he had until June 29, 2016 to file.




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     Accordingly, having discerned no administrative breakdown in the

court system, we are barred from excusing Appellant’s untimely notice of

appeal, and we therefore quash the appeal.

     Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2017




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