J-S08017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD LOUIS ALVINO, JR.                  :
                                               :
                       Appellant               :   No. 791 WDA 2019

              Appeal from the PCRA Order Entered April 26, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
           No(s): CP-02-CR-0005030-2000, CP-02-CR-0010576-1998


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                             FILED MARCH 2, 2020

        Richard Louis Alvino, Jr. (Appellant) appeals pro se from the order

entered in the Allegheny County Court of Common Pleas, denying his second

Post-Conviction Relief Act1 (PCRA) petition as untimely filed.2 Appellant, who

received mandatory minimum sentences under 42 Pa.C.S. § 9718(a)(1)

(sentences for offenses against infant persons), avers he has established relief

under the “new constitutional right” timeliness exception of the PCRA. We

affirm.

        In 1998, Appellant was charged in both Allegheny County and Butler

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1   42 Pa.C.S. §§ 9541-9546.

2 Following one extension of time granted by this Court, Appellant filed his
brief two days late. However, the Commonwealth has not objected. See
Pa.R.A.P. 2188 (if appellant fails to file brief within time prescribed by these
rules, or within the time as extended, appellee may move for dismissal).
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County with a combined 25 counts related to his sexual abuse of his minor

child. The Allegheny County charges were docketed at CP-02-CR-0010576-

1998 (Docket 98-10576). On March 27, 2000, the Butler County Court of

Common Pleas transferred its case to the Allegheny County Court of Common

Pleas (trial court) and ordered it to be consolidated with the pending Allegheny

County charges.3 The Butler County matter was then assigned a new docket

number, CP-02-CR-0005030-2000 (Docket 00-5030).

       On August 28, 2000, Appellant appeared before the trial court and

pleaded guilty, but mentally ill, at both dockets. On April 26, 2001, the trial

court imposed sentences at both dockets, of an aggregate term of 28½ to 57

years’ imprisonment, to be followed by 55 years’ probation. Pertinently, the

sentences included five mandatory terms for offenses committed against

minors, pursuant to 42 Pa.C.S. § 9718(a)(1).4

       Appellant took a timely direct appeal. This Court affirmed his judgments

of sentence at both dockets on May 22, 2002, and the Pennsylvania Supreme

Court denied allowance of appeal on December 30, 2002. Commonwealth


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3 The Butler County court’s transfer order appears in the certified record for
Docket 00-5030, as the 16th page of the filing entered as
“DJ_Criminal_Complaint.”

4 The Section 9718(a)(1) five-year mandatory term was imposed on these
counts: (1) two counts of involuntary deviate sexual intercourse (IDSI), 18
Pa.C.S. § 3123(a)(1), at Docket 98-10576; (2) two counts of IDSI, 18 Pa.C.S.
§ 3123(a)(1), at Docket 00-5030; and (3) one count of rape by forcible
compulsion, 18 Pa.C.S. § 3121(a)(1) at Docket 00-5030. Each of these five
mandatory terms were to run consecutively.

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v. Alvino, 1247 WDA 2001 (unpub. memo.) (Pa. Super. May 22, 2002),

appeal denied, 321 WAL 2002 (Dec. 30, 2002).

       On January 5, 2004, Appellant filed a pro se PCRA petition.       After

appointing counsel to represent Appellant, the PCRA dismissed Appellant’s

petition on May 3, 2004.

       More than 14 years later, on January 29, 2019, Appellant filed the

underlying PCRA petition, pro se, claiming his Section § 9718 mandatory

minimum sentences were illegal under Commonwealth v. Wolfe, 140 A.3d

651 (Pa. 2016) (invalidating 42 Pa.C.S. § 9718(a)(1) pursuant to Alleyne v.

United States, 570 U.S. 99 (2013)),5 and Commonwealth v. Resto, 179

A.3d 18 (Pa. 2018) (plurality) (holding 42 Pa.C.S. § 9718(a)(1)(3) does not

run afoul of Alleyne).

       The PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the

petition without a hearing. The court found Appellant’s petition was untimely,

where the Pennsylvania Supreme Court has not held Alleyne — upon which

Wolfe relied — applies retroactively to satisfy any of the 42 Pa.C.S. §

9545(b)(1) PCRA timeliness exceptions. Appellant filed a response, but the

PCRA court dismissed Appellant’s petition on April 26, 2019.        We note

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5 In Alleyne, the High Court “held that any fact that, 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.” Wolfe,
140 A.3d at 653.




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Appellant’s petition, the court’s Rule 907 notice, and the court’s dismissal

order were each a single document that listed both trial docket numbers.

Appellant’s single, timely notice of appeal similarly listed both docket

numbers.6

         On June 24, 2019, this Court issued a per curiam order, directing

Appellant to show cause why his appeal should not be quashed pursuant to

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (where order resolves

issues arising on more than one docket, proper practice under Pa.R.A.P.

341(a) is to file separate appeals; failure to do so requires quashal of appeal).

Appellant responded that, inter alia, because the trial court consolidated the

two dockets in 2000, this case falls “within the exception” in Walker and

Commonwealth v. Shreffler, 201 A.3d 757 (Pa. Super. 2018). Appellant’s

Response to Order to Show Cause, 7/8/19, at 2-4. This Court discharged the

rule to show cause but advised Appellant the merits panel may revisit this

issue.

         Appellant presents three issues for our review:

         I. When . . . Appellant filed a single Notice of Appeal with Two (2)
         lower court docket numbers, was Quashal required[?]

         II. Whether the PCRA Court erred when it denied Appellant’s PCRA
         Petition because the Pennsylvania Supreme Court has never
         specifically held that Commonwealth v. Resto, 179 A.3d 18 (Pa.
         2018) was retroactive, when Tyler v. Cain, 533 U.S. 652
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6 Appellant complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.


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       (2001)[,] holds multiple holdings can render a new rule
       retroactive if the holdings in those cases necessarily dictate
       retroactively[?]

       III. Whether Commonwealth v. Resto is retroactive applying
       this holding?

Appellant’s Brief at 1-2.

       Appellant first contends this Court should not quash this appeal due to

his filing of a single notice of appeal. In support, he cites Commonwealth v.

Stansbury, 219 A.3d 157 (Pa. Super. 2019), pet. allocator pending, 656 EAL

2019, and avers “identical circumstances” were presented in this case.7

Appellant’s Brief at 7.

       We first note that in Walker, our Supreme Court held Pa.R.A.P. 341(a)

“require[s] that when a single order resolves issues arising on more than one

lower court docket, separate notices of appeal must be filed. The failure to

do so will result in quashal of the appeal.” Walker, 185 A.3d at 977. In

Shreffler, this Court stated, in a footnote, that quashal was not appropriate

under Walker, although the appellant filed a single notice of appeal, because

the appellant’s two criminal matters were previously consolidated. Shreffler,


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7 In his brief, Appellant has abandoned the arguments previously raised in his
response to this Court’s rule to show cause, and instead presents a new legal
theory. Nevertheless, where the issue of quashal goes to this Court’s
jurisdiction, we may sua sponte consider any relevant legal authority. See
Commonwealth v. Gaines, 127 A.3d 15, 17 (Pa. Super. 2015) (en banc)
(“We may raise issues concerning our appellate jurisdiction sua sponte.”).




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201 A.3d at 760 n.8, 761 n.12.

       Similarly, in this case, the Butler County court ordered the Butler County

charges to be transferred to Allegheny County and “consolidated” with the

Allegheny County charges. Thus, quashal is not appropriate.8 See Shreffler,

201 A.3d at 760 n.8, 761 n.12.

       In his last two issues, Appellant claims the PCRA court erred in

dismissing his PCRA petition as untimely. It is undisputed Appellant’s January

29, 2019, PCRA petition was filed beyond the general one-year PCRA filing

period.9   We thus consider his claim that he met the exception at Section

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8 Although the Butler County court ordered the Docket 00-5030 charges to be
transferred to Allegheny County and to be “consolidated” with Docket 98-
10576, there is no order or formal acknowledgement by the Allegheny County
court that it was consolidating the two cases. Nevertheless, even if the two
cases were not consolidated, we would agree with Appellant’s argument on
appeal that Stansbury applies.

       In Stansbury, the PCRA court’s order listed two case docket numbers,
but erroneously advised the petitioner he had thirty days “to file a written
notice of appeal to the Superior Court.” Stansbury, 219 A.3d at 159. This
Court declined to quash the appeal under Walker, concluding the PCRA
court’s misinformation “amount[ed] to a breakdown in court operations such
that we may overlook the defective nature of [the] timely notice of appeal.”
Id. at 160. Here, the PCRA court’s order likewise advised: “[Appellant] has
the right to appeal this Court’s denial of his PCRA Petition to the Superior Court
but must do so by filing a Notice of Appeal within thirty (30) days.” Order,
4/26/19. See Stansbury, 219 A.3d at 159. Such incorrect advisement would
constitute a “breakdown in court operations” excusing any Pa.R.A.P. 341(a)
violation.

9On direct appeal, after the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal on December 30, 2002, he had 90 days, or
until Monday, March 31, 2003, to seek certiorari with the United States



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9545(b)(1)(iii), which provides an otherwise untimely petition may be

reviewed when

       the petition alleges and the petitioner proves 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.

See 42 Pa.C.S. § 9545(b)(1)(iii). We note, “[t]he timeliness requirement for

PCRA      petitions    ‘is    mandatory        and   jurisdictional   in   nature[.]’”

Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en

banc) (citation omitted).

       Although Appellant’s PCRA petition cited both Wolfe and Resto to

satisfy the PCRA’s time exception at 42 Pa.C.S. § 9543(b)(1)(iii), on appeal

he relies solely on Resto.        Appellant avers that Resto announced a “new

constitutional right . . . not to be sentenced under the mandatory minimum

sentences required [Section] 9718(a)(1),” and that his petition was filed

within one year of the Resto decision. Appellant’s Brief at 8. He further avers


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Supreme Court. See U.S. Sup. Ct. R. 13; see also 1 Pa.C.S. § 1908 (when
last day of any period of time referred to in any statute falls on Sunday, such
day shall be omitted from computation). Appellant did not seek certiorari,
and thus his judgment of sentence became final for PCRA purposes on that
day. See 42 Pa.C.S. § 9545(b)(3) (judgment becomes final at conclusion of
direct review, including discretionary review in the Supreme Court of the
United States, or at expiration of time for seeking such review). Appellant
then generally had one year, until March 31, 2004, to file a PCRA petition.
See 42 Pa.C.S. § 9545(b)(1) (any petition, including a second or subsequent
petition, shall be filed within one year of the date judgment becomes final).
As stated above, the instant petition was filed in 2019.


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this Resto right applies retroactively, pursuant to Teague v. Lane, 489 U.S.

288 (1989) (plurality), which Appellant summarizes allowed multiple decisions

to collectively “render a new rule retroactive if the holdings in those cases

necessarily dictate retroactivity of the new rule.” Id. at 9. Appellant further

avers that Teague held “a new rule should be applied retroactively if it places

certain kinds of primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe.” Id. at 9-10. We disagree.

       In 2001, Appellant’s mandatory five-year minimum sentences were

imposed pursuant to a former version of Subsection 9718(a)(1), which was

virtually identical to the latest version (save for the newer, longer mandatory

term of ten years). Resto, however, addressed Subsection 9718(a)(3) and

is thus not applicable in this case.10 Additionally, the opinion announcing the

judgment of the Court in Resto stated Subsection 9718(a)(3) did not

implicate Alleyne, as it “require[d] no proof of any predicate or aggravating

facts.”   Resto, 179 A.3d at 20-21.            Accordingly, even if Appellant were

sentenced under Subsection 9718(a)(3), Resto would provide not provide the

relief requested.

       While Appellant has abandoned his PCRA petition claim citing Wolfe, we

note no relief would be due under that decision as well.          The PCRA court

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10 We further note that when Appellant was sentenced, there was no
Subsection 9718(a)(3); that subsection was not added until 2004. See Act
2004-217 (S.B. 1099), P.L. 1703, § 4.



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correctly pointed out that Wolfe invalidated Subsection 9718(a)(1) pursuant

to Alleyne, but the Pennsylvania Supreme Court has held Alleyne does not

apply retroactively to cases pending on PCRA review. 11 PCRA Ct. Notice of

Intention to Dismiss, 3/5/19, at 1-2, citing Commonwealth v. Washington,

142 A.3d 810, 820 (Pa. 2016).

       We agree with the PCRA court that Appellant has not established his

PCRA petition was timely filed under the Subsection 9545(b)(1)(iii) “new

constitutional right” exception. Accordingly, we affirm the order dismissing

Appellant’s petition.

       Order affirmed.



       Judge Musmanno joins the memorandum.

       Judge Olson concurs in the result.




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11 Although Wolfe analyzed a later version of Subsection 9718(a)(1), the
dispositive language found to be unconstitutional was also present in the 2001
version of the statute, under which Appellant was sentenced. See Wolfe,
140 A.3d at 665.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2020




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