J-S53038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
GARY MATEER,                              :
                                          :
                   Appellant              :           No. 419 MDA 2015

            Appeal from the Order entered on September 24, 2014
              in the Court of Common Pleas of Dauphin County,
                Criminal Division, No. CP-22-CR-0000181-1999

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 29, 2015

        Gary Mateer (“Mateer”) appeals, pro se, from the Order dismissing his

Petition for Writ of Habeas Corpus. We affirm.

        On May 13, 1999, Mateer pled guilty to aggravated assault and

criminal conspiracy.    On September 16, 1999, the trial court sentenced

Mateer to an aggregate sentence of seven and one-half to twenty years in

prison, followed by twenty years of probation.    Mateer did not file a direct

appeal.    Mateer filed Petitions pursuant to the Post Conviction Relief Act

(“PCRA”)1 in September 2000 and March 2001. These Petitions were denied.




1
    See 42 Pa.C.S.A. §§ 9541-9546.
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      On September 5, 2014, Mateer filed a Petition for Writ of Habeas

Corpus. On September 24, 2014, the Petition was dismissed. Mateer filed a

Notice of Appeal.2

      Mateer has set forth numerous questions in his Statement of Questions

Involved. See Brief for Appellant at 2. To summarize, Mateer contends that

the mandatory minimum sentence imposed against him under 42 Pa.C.S.A.

§ 9712.1 was illegal based upon the United States Supreme Court’s decision

in Alleyne v. United States, 133 S. Ct. 2151 (2013).3             See Brief for

Appellant at 7-16.

      Preliminarily, we note that any petition filed after the judgment of

sentence becomes final will be treated as a petition filed pursuant to the

PCRA.    See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.

2011).   It is well-settled that the PCRA subsumes the remedy of habeas

corpus   where   the   PCRA   provides   a   remedy   for   the   claim.   See

Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013); see also 42

Pa.C.S.A. § 9542 (providing that “[t]he action established in this subchapter

shall be the sole means of obtaining collateral relief and encompasses all

2
  Mateer’s Notice of Appeal was docketed on November 24, 2015, well
outside thirty days of the underlying Order. See Pa.R.A.P. 903(a). Mateer
explains that he filed a Notice of Appeal on October 15, 2014, but mistakenly
sent the Notice to the trial court judge.         Because it appears Mateer
attempted to timely file his Notice, we decline to quash the appeal.
3
  The Alleyne Court held that any fact that increases the mandatory
minimum sentence for a crime is an element that must be submitted to the
jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155,
2163.


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other common law and statutory remedies for the same purpose that exists

when this subchapter takes effect, including habeas corpus.”).             In his

Petition,   Mateer   challenges    the   legality   of   his   sentence.     See

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating

that issues pertaining to Alleyne raise a legality of sentence challenge).

Because Mateer filed his Petition after his judgment of sentence became

final, and the PCRA provides a remedy for his claim, the Petition should have

been treated as a PCRA Petition.

      Our standard of review regarding a dismissal of a PCRA petition is

whether the PCRA court’s decision is supported by the evidence of record

and is free of legal error. Commonwealth v. Garcia, 23 A.3d 1059, 1061

(Pa. Super. 2011).

      We observe that all PCRA petitions, including second or subsequent

petitions, must be filed within one year of the defendant’s judgment of

sentence becoming final.    See 42 Pa.C.S.A. § 9545(b)(1).          “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 review.”               Id.

§ 9545(b)(3).    The PCRA’s timeliness requirements are jurisdictional in

nature and a court may not address the merits of the issues raised if the

PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010).



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      In this case, Mateer’s judgment of sentence became final in October

1999, after the time to seek review with this Court had expired.          Thus,

Mateer’s September 2014 Petition is facially untimely under the PCRA.

      However, Pennsylvania courts may consider an untimely petition

where the defendant can explicitly plead and prove one of three exceptions

set forth in the PCRA.   See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).     Any PCRA

petition invoking one of these exceptions “shall be filed within 60 days of the

date the claim could have been presented.”       Id. § 9545(b)(2); Albrecht,

994 A.2d at 1094.

      Here, Mateer does not explicitly invoke any of the timeliness

exceptions in either his Petition or his appellate brief. See Commonwealth

v. Crews, 863 A.2d 498, 501 (Pa. 2004) (stating that “it is the petitioner’s

burden to plead in the petition and prove that one of the exceptions applies.”

(citation omitted, emphasis in original)).    While Mateer fails to invoke a

timeliness exception, he does challenge the legality of the sentence based

upon the Alleyne decision. Brief for Appellant at 7-16.4

      It is well-settled that “[a]lthough legality of sentence is always subject

to review within the PCRA, claims must still first satisfy the PCRA’s time

limits or one of the exceptions thereto.”     Commonwealth v. Fahy, 737


4
  It is unclear from the record whether the trial court imposed a mandatory
minimum sentence on Mateer. See PCRA Court Opinion, 9/25, at 1 n.2
(stating that there was no mention of a mandatory sentence during the
guilty plea); 3 (stating that the sentence was “substantially in excess of the
mandatory minimum sentence required by law.”).


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A.2d 214, 223 (Pa. 1999); see also Commonwealth v. Seskey, 86 A.3d

237, 241 (Pa. Super. 2014). Accordingly, because Mateer did not plead or

prove any of the exceptions to the PCRA’s jurisdictional time bar, we cannot

address his legality of sentence challenge. See Fahy, 737 A.2d at 223.5

      Based upon the foregoing, we conclude that the PCRA court properly

dismissed Mateer’s Petition, although we do so on grounds other than those

set forth by the PCRA court. See Commonwealth v. Charleston, 94 A.3d

1012, 1028 (Pa. Super. 2014) (stating that “we may affirm the PCRA court’s

decision on any basis.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2015



5
  Even if Mateer properly invoked the new constitutional right exception, he
failed to file his Petition within 60 days of June 17, 2013, the date on which
the Supreme Court issued the Alleyne decision. See Commonwealth v.
Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (stating that to fulfill the 60-
day requirement, defendants need to file their petitions within 60 days from
the date of the court’s decision). Moreover, Alleyne is not retroactive to
cases where the judgment of sentence was final. See Miller, 102 A.3d at
995 (stating that neither the Pennsylvania Supreme Court nor the United
States Supreme Court has held that Alleyne is to be applied retroactively to
cases in which the judgment of sentence has become final); see also
Commonwealth v. Riggle, 2015 PA Super 147, at *3-6 (Pa. Super. 2015).
Thus, Mateer would not satisfy the statutory exception at section
§ 9545(b)(1)(iii).


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