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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
MICHAEL B. STAHLEY                         :
          APPELLANT                        :
                                           :
                                           :     No. 632 MDA 2016

                   Appeal from the PCRA Order April 4, 2016
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000910-2004


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                        FILED NOVEMBER 23, 2016

        Appellant, Michael B. Stahley, appeals from the April 4. 2016 Order

dismissing his amended Petition pursuant to the Post Conviction Relief Act

(PCRA),42 Pa.C.S. §§ 9541-9546. We affirm.

        A jury found Appellant guilty of forcible rape, involuntary deviate

sexual intercourse, simple assault, burglary, terroristic threats, and theft

arising from a break-in and sexual assault that occurred on or about May 21,

2004. On October 2, 2006, the trial court adjudicated Appellant a sexually

violent predator (“SVP”), and imposed an aggregate sentence of twenty-two

and one-half years’ to forty-seven and one-half years’ imprisonment. This



*
    Retired Senior Judge assigned to the Superior Court.
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Court affirmed Appellant’s Judgment of Sentence.        Commonwealth v.

Stahley, 965 A.2d 303 (Pa. Super. 2008) (unpublished memorandum). The

Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of

Appeal on May 2, 2011.      Appellant’s Judgment of Sentence became final,

therefore, on August 1, 2011.      See Commonwealth v. Harris, 972 A.2d

1196, 1200 (Pa. Super. 2009); see also US. Sup. Ct. R. 13.

      On March 20, 2009, while Appellant’s Petition for Allowance of Appeal

was pending in the Supreme Court, Appellant filed his first PCRA Petition.

Following an evidentiary hearing, the PCRA court denied Appellant relief and

dismissed Appellant’s Petition.    Appellant timely appealed from the order

denying his PCRA Petition, and this Court affirmed.      Commonwealth v.

Stahley, 15 A.3d 535 (Pa. Super. 2010) (unpublished memorandum).

      On March 4, 2016, Appellant filed the instant pro se PCRA Petition. On

March 9, 2016, the PCRA court issued an Order and Notice of Intent to

dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P.

907, concluding that Appellant’s Petition was untimely filed and Appellant

had failed to plead and prove one of the statutory exceptions to the PCRA’s

time-bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      On March 23, 2016, Appellant filed an Answer to the Notice of Intent

to dismiss his PCRA Petition.     On April 4, 2016, the PCRA court dismissed

Appellant’s petition.   Appellant timely appealed.   Both Appellant and the

PCRA court complied with Pa.R.A.P. 1925.



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     Appellant raises the following two issues on appeal:

       1. Did the trial court err when it dismissed the PCRA when
       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. The Supreme Court of the United
       States or the Commonwealth of Pennsylvania has
       recognized the following retroactive Constitutional rights
       after my period for filing: The mandatory sentence is
       unconstitutional as per Supreme court of Pa. The Superior
       court also states that cases under 42 Pa.C.S. 9718 is
       unconstitutional. Based on United States Supreme Court
       decision on the mandatory sentences contained in section
       9718 is unconstitutional. Mandatory minimum Sentencing
       statutes in Pa. containing the language appearing in
       section 9718 (c) “are void in their entirely”.

       2. Pursuant to 42 Pa.C.S. 9545 (b) and that it does not
       meet any of the exceptions to the timeliness requirements.
       Because of an illegal sentence “is primarily restricted to
       those instances in which the term of the prisoner’s
       sentence is not authorized by the statutes which govern
       the penalty” for the crime of conviction. Collateral relief
       courts will, however, consider a motion to correct an illegal
       sentence based on a decision of the court holding that the
       eighth Amendment of the Federal Constitution prohibits a
       punishment for a type of crime or a class of offenders.
       The defendant had been prosecuted was unconstitutional
       or because the sentence was one the Court could not
       lawfully impose. “A conviction or sentence imposed in
       violation of a substantive rule is not just erroneous but
       contrary to law and, as a result, void. But a majority of
       this court, eager to reach the Merits of this case, resolves
       the question of our jurisdiction by deciding that the
       Constitution requires State Post-Conviction Courts to adopt
       Teague’s exception for so-called “substantive” NEW RULES
       and to provide State law remedies for The violations of
       those rules to prisoners whose sentences have long ago
       became final. This conscription into Federal service of
       State Post-Conviction Courts is nothing short of
       astonishing.



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Appellant’s Brief at 1 (verbatim).

      We note at the outset that Appellant’s Brief is, at best, confusing, and,

at worst, incomprehensible.          However, it appears that Appellant is

essentially arguing that the PCRA court erred in dismissing his Petition as

untimely because he is serving an illegal mandatory minimum sentence. Id.

at 6-7.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).    Before addressing the merits of Appellant’s claims, however, we

must first determine whether we have jurisdiction to entertain the

underlying PCRA Petition.    No court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008).

      Appellant attempts to invoke our jurisdiction by averring that he is

entitled to relief under the PCRA as a result of the constitutional right

recognized in Alleyne v. United States, 133 S.Ct. 2151, 2156, 2164

(2013), and its progeny. This claim fails.

      A PCRA petition must be filed within one year of the date the

underlying judgment becomes final; a judgment is deemed final at the

conclusion of direct review or at the expiration of time for seeking review.

42 Pa.C.S. § 9545(b)(1), (3).        The statutory exceptions to the timeliness




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requirement allow for very limited circumstances to excuse the late filing of

a petition. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).

      Here, Appellant appears to be invoking the timeliness exception found

in Section 9545(b)(1)(iii). Appellant’s Brief at 7. In order to obtain relief

under this subsection, a petitioner must plead and prove that “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).     A petitioner asserting a

timeliness exception must file a petition within 60 days of the date the claim

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

      With respect to Appellant’s claim on appeal the trial court opined as

follows:

           Here,    [Appellant]     alleges  that   his   sentence   is
           unconstitutional pursuant to the Pennsylvania Superior
           Court’s decision in Commonwealth v. Wolfe, wherein the
           Court held that mandatory sentences imposed pursuant to
           42 Pa.C.S. § 9718(a)(1) are unconstitutional and not
           severable in light of [Alleyne, supra]. Wolfe, 106 A.3d
           800, 806 (Pa. Super. 2014), appeal granted, 121 A.3d 433
           (Pa. 2015).         Accordingly [Appellant] attacks the
           constitutionality of his sentence under the third PCRA time
           bar exception. See 42 Pa.C.S. § 9545(b)(1)(iii).

           [Appellant’s] argument fails on a number of fronts.
           Initially, even if this [c]ourt were to determine that
           Alleyne created a new constitutional right, and therefore
           implicate[s] one of the exceptions to the PCRA time bar,
           the Superior Court has unequivocally held that Alleyne




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        does not apply retroactively to cases on collateral
        review.[1] See Commonwealth v. Miller, 102 A.3d 988,
        995-96 (Pa. Super. 2014). As [Appellant’s] judgment
        became final well before Alleyne was decided, this
        argument is meritless and this [c]ourt lacks jurisdiction to
        consider    [Appellant’s]  instant     Petition.        See
        Commonwealth v. Hall, [771 A.2d 1232 (Pa. 2001).]

        Furthermore, 42 Pa.C.S. § 9545(b)(2) requires defendant’s
        [sic] to file a PCRA [P]etition within sixty (60) days of the
        date the claim could have been presented. Alleyne was
        decided on June 17, 2013, more than two and one half
        years before [Appellant] filed the instant PCRA Petition.
        Wolfe was decided on December 24, 2014, almost one
        and one half years before [Appellant] filed the instant
        PCRA Petition. Accordingly, even if Alleyne did create a
        new constitutional right and it was determined to apply
        retroactively, [Appellant’s] instant petition is untimely
        pursuant to 42 Pa.C.S. § 9545(b)(2).

        Finally, [Appellant] alleges that he was sentenced under 42
        Pa.C.S. § 9718(a)(1) which concerns offenses against
        infant persons. [Appellant] is wrong. The victim in the
        underlying case was thirty (30) years-old at the time the
        offense was committed. See Motion for PCRA Restoration
        of Appeal Rights, ¶ 18(a), 9/17/07. [Appellant] was not
        sentenced under 42 Pa.C.S. § 9718(a)(1), and no mention
        of 42 Pa.C.S. § 9718(a)(1) exists in the record. As such,
        even if the instant PCRA [Petition] satisfied the
        aforementioned requirements, [Appellant’s] argument fails
        on substantive grounds.

PCRA Opinion, 6/6/16, at 4-5 (unpaginated, footnotes omitted).

     We agree with the PCRA court’s conclusion that Appellant’s instant

PCRA petition was patently untimely and that he failed to prove the

applicability of any of the PCRA’s timeliness exceptions. Therefore, the PCRA

1
 Moreover, the Pennsylvania Supreme Court has explicitly held that Alleyne
does not apply retroactively on collateral review.   Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016).



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court lacked jurisdiction to address his claims and properly dismissed his

Petition seeking relief under Alleyne. Furthermore, our review of the record

confirms that Appellant was not sentenced under 42 Pa.C.S. § 9718.

Accordingly, even if he had timely filed his PCRA Petition, we agree with the

PCRA court that he would likewise not be entitled to relief on substantive

grounds.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2016




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