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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
DEAN LEROY CUSTER,                       :         No. 803 WDA 2018
                                         :
                         Appellant       :


                  Appeal from the PCRA Order, April 17, 2018,
                in the Court of Common Pleas of Mercer County
               Criminal Division at No. CP-43-CR-0001279-2003


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 1, 2018

      Dean Leroy Custer appeals pro se from the order filed in the Court of

Common Pleas of Mercer County that dismissed his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we affirm.

      The procedural history as set forth by a previous panel of this court is

as follows:

              On May 12, 2004, [a]ppellant was convicted of
              numerous counts of rape, involuntary deviate sexual
              intercourse (IDSI), and other related sexual assault
              charges.[1] On October 28, 2004, [a]ppellant was
              sentenced to thirty to sixty years’ imprisonment to
              be followed by sixty years’ probation. This Court
              affirmed the judgment of sentence and our state


1 18 Pa.C.S.A. §§ 3121(a)(1), 3121(a)(2), 3121(a)(6),                3123(a)(1),
3123(a)(2), now 3123(b), and 3123(a)(7), respectively.
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             Supreme Court denied [a]ppellant’s petition for
             allowance of appeal on September 12, 2006.

Commonwealth v. Custer, 169 A.3d 1175 (Pa.Super. 2017) (Unpublished

memorandum) at 1.

      Appellant filed three prior PCRA petitions that were denied.      In the

third petition, this court affirmed the denial as the petition was untimely and

did not qualify under any of the exceptions to timeliness because Alleyne v.

United States, 570 U.S. 99 (2013) does not apply retroactively to cases on

collateral review. Custer at 2, 5-6.

      While appellant’s third PCRA petition was on appeal to this court,

appellant filed a fourth PCRA petition on November 7, 2016.          Appellant

conceded that his petition was untimely but alleged that his petition met an

exception to the timeliness requirement because the Supreme Court of

Pennsylvania and this court had ruled that mandatory sentencing was

unconstitutional and that these cases were previously unknown to him.

      On November 10, 2016, the PCRA court stayed action on the fourth

petition until this court ruled on appellant’s appeal from his third PCRA

petition.   On December 7, 2017, the PCRA court lifted the stay after this

court affirmed the dismissal of the third PCRA petition and our supreme

court denied appellant’s petition for allowance of appeal. Commonwealth

v. Custer, 170 A.3d 1010 (Pa. 2017).

      On March 26, 2018, the PCRA court informed appellant of its intent to

dismiss the PCRA petition.    On April 9, 2018, appellant filed an amended


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petition and alleged that he satisfied “one and/or two” of the exceptions to

the PCRA time-bar.     (Amended Petition, 4/9/18 at 3.)        By order dated

April 17, 2018, the PCRA court dismissed the PCRA petition.

      On May 3, 2018, appellant filed a notice of appeal. On June 13, 2018,

the trial court issued an order that stated that it was not filing an additional

opinion and referred to the order dated April 17, 2018.

      Appellant raises the following issues for this court’s review:

            1.    Whether [the PCRA] court arred [sic] by
                  sentencing [appellant] to illegal mandatory
                  minimum sentences of 30-60 [years] of
                  incarceration. Then imposed a second illegal
                  sentence of 60 [years] of probation after
                  incarceration[?]

            2.    Whether [the PCRA] court had the right to
                  knowingly appoint effective countsel [sic] that
                  withdrew numerous times[?]

            3.    Whether D.A. Karson Jr. had the right to
                  assign [sic] himsalf [sic] to [appellant’s] PCRA
                  after being prosecuted by PA state attorney
                  general for obstructing of administration of
                  law, hindering apprehension of prosecution
                  17 second degree charges[?]

            4.    Whether     D.A.   Karson,     Jr.,   P.d.   [sic]
                  Davis, Pd [sic]   Bogaty,       X-A.D.A.     [sic]
                  [M]c[E]wen, and retired Judge Reed all
                  commited [sic] governmental interference by
                  noncomplyence [sic] to [appellant’s] letters
                  dated from 6-27 through 6-30-17 and 8-15-17
                  in researching [appellant’s] P.S.I. report[?]

            5.    Whether [the] trial court properly sentenced
                  [appellant] without use of PSI report[?]




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Appellant’s brief at 3-4.2

      All PCRA petitions must be filed within one year of when a defendant’s

judgment of sentence becomes final.           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 the time for seeking

the review.”      42 Pa.C.S.A. § 9545(b)(3).          The Supreme Court of

Pennsylvania has held that the PCRA’s time restriction is constitutionally

sound.    Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).                In

addition, our supreme court has instructed that the timeliness of a PCRA

petition is jurisdictional.    If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Here, the trial court sentenced appellant on October 28, 2004. After

this court affirmed, our supreme court denied appellant’s petition for

allowance of appeal on August 23, 2006. Commonwealth v. Custer, 905

A.2d 499 (Pa. 2006).          Appellant did not seek further review with the

Supreme Court of the United States.          Consequently, appellant’s sentence

became final on November 21, 2006, after the ninety-day period in which he




2 Although the pages of appellant’s brief are not numbered, we have
numbered the pages in order to facilitate locating the applicable pages.


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was allowed to seek review with the Supreme Court of the United States

expired. See 42 Pa.C.S.A. § 9543(b)(3); U.S. Sup.Ct. R. 13(1). Appellant

needed to file his PCRA petition by November 21, 2007. This petition, filed

on November 7, 2016, is facially untimely.        As a result, the PCRA court

lacked jurisdiction to review appellant’s petition, unless appellant pleads and

proves that he meets one of the following exceptions to the time

requirement:

            (i)     the failure to raise the claim previously was the
                    result of interference by government officials
                    with the presentation of the claim in violation
                    of   the    Constitution     or  laws    of  this
                    Commonwealth or the Constitution or laws of
                    the United States;

            (ii)    the facts upon which the claim is predicated
                    were unknown to the petitioner and could not
                    have been ascertained by the exercise of due
                    diligence; or

            (iii)   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.A. § 9545(b)(1)(i)-(iii).     Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

      With respect to the issue of whether the PCRA petition was untimely,

appellant asserts that he received a mandatory minimum sentence which

was unconstitutional based on Alleyne v. United States, 570 U.S. 99


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(2013), that constitutional issues cannot be waived or time barred, and that

mandatory minimum sentences were not ruled unconstitutional until 2016.

      To the extent appellant is arguing that his sentence is illegal, this claim

does not allow him to skirt the timeliness requirement. “[E]ven claims that

a sentence was illegal, an issue deemed incapable of being waived, are not

beyond the jurisdictional time restrictions.”      Commonwealth v. Grafton,

928 A.2d 1112, 1114 (Pa.Super. 2007), citing Commonwealth v. Fahy,

737 A.2d 214 (Pa. 1999); Commonwealth v. Beck, 848 A.2d 987

(Pa.Super. 2004).         Therefore, appellant’s illegal sentencing claim does not

operate as an independent exception to the PCRA’s jurisdictional time-bar.

Furthermore, as this court already stated when it affirmed the dismissal of

his   prior   petition,     the   Pennsylvania   Supreme   Court   determined   in

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), that

Alleyne does not apply retroactively to cases pending on collateral review.

      Therefore, we find that appellant failed to plead or prove that he met

an exception to the timeliness requirements of the PCRA.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/1/2018



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