J.S23043/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
WILLIAM P. D’AGOSTINO,                      :
                                            :
                          Appellant         :
                                            :     No. 2940 EDA 2015

                Appeal from the PCRA Order September 9, 2015
     in the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0004405-1998

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                     FILED MARCH 04, 2016

        Appellant, William P. D’Agostino, appeals pro se from the dismissal of

his fifth Post Conviction Relief Act1 (“PCRA”) petition. Appellant claims that

his mandatory minimum sentence, which became final in May 2000, is illegal

in light of Alleyne v. United States, 133 S. Ct. 2151 (2013), and that he

timely filed the instant petition within sixty days of a previously unknown

fact, i.e., the decision in Commonwealth v. Hopkins, 117 A.3d 247 (Pa.

2015).      The PCRA court has ably addressed the issues regarding the

timeliness of the instant PCRA petition. Therefore, we affirm on the basis of

that court’s opinion and need only reiterate that judicial decisions are not

new facts for the purposes of establishing an exception to the PCRA time-bar


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J.S23043/16


under 42 Pa.C.S. § 9545(b)(1)(ii).    See Commonwealth v. Cintora, 69

A.3d 759, 763 (Pa. Super. 2013).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/4/2016




                                     -2-
                                                                         Circulated 02/16/2016 02:33 PM




                IN THE COURT OF COMMONPLEAS OF MONTGOl'vlERY COUNTY
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                                   PENNSYLVANIA
                                  CRIMINALDIVISION


        COMMONWEALTHOF PENNSYLVANIA                          CP-46-CR-0004405-1998

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                            FACTUALAND PROCEDURALHISTORY

                    Appellant, vVilliam D'Agostino, appeals from the final order of

       dismissal dated September 9, 2015, dismissing his untimely fifth petition

       seeking post-conviction relief under the Post-Conviction Relief Act {'1PCRAn), 42

       Pa.C.S.A. §§ 9541 - 9546. Specifically, this Court determined that Appellant

       failed qualify for the newly recognized constitutional right time-bar exception

       pursuant to Section 9545(b)(iii), as alleged in his PCRA petition because Alleyne

       v. U.S. does not retroactively apply to post-conviction proceedings. Therefore,

       this Court concluded that it lacked jurisdiction to reach the underlying merits

       of the claims raised therein.

                   By way of a brief background of this case, on February 16, 2000,

       Appellant entered into an open guilty plea to four counts of involuntary deviate

       sexual intercourse, related to sexual contact between 1992 and 1994 with a 14-




                                                                                           (8)
year-old victim. Appellant was subsequently sentenced on April 6, 2000, to a

term of 10 to 20 years' imprisonment. A direct appeal was not filed.

              On April 6, 2001, Appellant filed a timely prose PCRA petition.

Counsel was appointed, and at the conclusion of PCRA counsel's review a no

merit letter was filed pursuant to the dictates of Tuner/Finley1. After proper

pre-dismissal notice as set forth in Pa.R.Crim.P. 907, a final order of dismissal

was issued on June 7, 2001. On May 21, 2002, our Superior Court affirmed the

dismissal of Appellant's PCRA petition. Our Supreme Court denied Appellant's

petition for allowance of appeal on November 27, 2002.

             On November 7, 2005, Appellant filed an untimely second PCRA

petition. Counsel was again appointed, and counsel determined that it was

untimely and without merit. Pre-dismissal notice was provided, and thereafter a

final notice of dismissal was entered on February 1, 2006. Appellant appealed

to our Superior Court, and on September 11, 2006, our Superior Court affirmed

the dismissal of Appellant's second PCRA petition.

             OnNovember 24, 2006, Appellant filed an untimely third PCRA

petition. Pursuant to Pa.R.Crim.P. 907, a pre-dismissal notice was issued on

December 14, 2006, which was followed by a final order of dismissal on

January 4, 2007. Appellant appealed to our Superior Court and on July 29,

2007, and the dismissal of the third PCRA petition was upheld.




      Commonwealth v. Twner, 544 A.2d 927 (Pas. 1988); Commonwealth v. Finley, 550 A.2d
      213 (Pa.Super. 1988) (en bane).
                                           2
                  On May 11, 2012, Appellant filed an untimely fourth PCRA petition.

     Again, a pre-dismissal notice was issued on June 26, 2012. A final order of

      dismissal followed on July 16, 2012. Appellant did not appeal.

                  On August 14, 2015, Appellant filed a fifth PCRA petition, which is

     currently at issue in this appeal. Therein, Appellant asserted that his fifth PCRA

en   petition was timely under the newly recognized constitutional right exception

     because Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which was

     decided on June 15, 2015, held that the mandatory minimum statute that he

     was sentenced under, 42 Pa.CS.A. §9718, to be unconstitutional    in light of

     Alleyne. On August 19, 2015, a pre-dismissal notice was issued, giving

     Appellant notice of this Court's intention to dismiss his untimely serial PCRA

     petition because no timeliness exceptions applied, and specifically, under

     Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), Alleyne has been

     held not to apply retroactively in the PCRA context.

                  On September 3, 2015, Appellant filed a response to the pre-

     dismissal notice, asserting that this Court had misinterpreted his claim and

     that a court always has jurisdiction to correct an illegal sentence. On September

     9, 2015, this Court issued a final order of dismissal from which Appellant

     presently appeals.

                 In response to Appellant's timely notice of appeal, this Court

     issued an order directing Appellant to file a concise statement of errors

     complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant has complied.



                                             3
                                               ISSUE
co
         I.    Whether this Court properly dismissed this fifth PCRA as untimely, when
               Appellanfs claim did not qualify under the newly recognized
               constitutional right time-bar exception because Alleyne is not retroactive
               in the PCRA con text.
\
    '                                      DISCUSSION
        I.     This Court properly dismissed this fifth PCRA as untimely, when
Uc             Appellant's claim did not qualify under the newly recognized
               constitutional right time-bar exception because Alleyne is not retroactive
               in the PCRA context.

                     Initially, this Court notes that while the Commonwealth did file a

        notice to seek mandatory minimum sentence, it is unclear that Appellant was

        sentenced pursuant to the mandatory minimum at 42 Pa.CS.A. §9718, rather

        than in the aggravated range of the sentencing guidelines. At the time of

        sentencing, the sentencing court stated, "Itlhe sentencing guidelines applicable

        here, due to the time that the crimes were committed, are the older set of

        guidelines." (Sentencing 4/6/2000 p, 82). The court went on to delineate the

        sentencing guideline ranges. Id. However, later the court stated "[alll four

        offenses carry mandatory minimums of five years imprisonment." Id. at 83.

        Ultimately, Appellant was sentenced to seven to 20 years' imprisonment on the

        first count of involuntary deviate sexual intercourse. On the second count,

        Appellant was sentenced to five to 10 years' imprisonment, concurrent to count

        1. On the third count, Appellant was sentenced to a term of five to 10 years'

        imprisonment, consecutive to count 2. Finally on count four, Appellant was
        sentenced to five to 10 years' imprisonment, concurrent to count 1. Id. at 84.

        Accordingly, Appellant may not have even been sentenced under the mandatory

                                                4
     minimum sentencing scheme, and his current Alleyne claim must fail on that
co   basis. However, even assuming Appellant was sentenced under the now

     unconstitutional sentencing scheme, Appellant's claim of timeliness must also

     fail as explained below.

                   Our appellate court, when reviewing the propriety of an order

fH   dismissing a PCRA petition on timeliness grounds, determines whether the

     decision of the trial court is supported by the evidence of record and is free of

     legal error. Commonwealth v. Williamson, 21 A.3d 236, 240 (Pa.Super. 2011).

     The trial court's findings with regard to the timeliness of a PCRA petition will

     not be disturbed unless there is no support for those findings in the certified

     record. Id.

                   The timeliness of a PCRA petition is a jurisdictional requisite.

     Commonwealth v. Robinson. 12 A.3d 477, 479 (Pa.Super. 2011). "Iunsdicrional

     time limits go to a court's right or competency to adjudicate a controversy." Id.

     (quoting Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)).       uu the
     petition is determined to be untimely, and no exception has been pled and

     proven, the petition must be dismissed without a hearing because Pennsylvania

     courts are without jurisdiction to consider the merits of the

     petition." Commonwealth v. Tackson, 30 A.3d 516, 519 (Pa.Super. 2011)

     (quoting Commonwealth v. Perrin, 94 7 A.2d 1284, 1285 (Pa.Super. 2008))

                   Any PCRA petition, including a second and subsequent one, must

     be filed within one year of the date the judgment of sentence becomes final. 42

     Pa.CS.A. §9545(b)(l). A judgment of sentence becomes final at the conclusion

                                               5
               of direct review, or when the time for seeking such review expires. 42 Pa.CS.A.
0)             §9545(b)(3).
, ... ,11-,

                           There are three statutory exceptions to the timeliness requirements

              of the PCRA, which provide very limited circumstances to excuse the late filing
I\:,          of a petition. To invoke an exception. a petition must allege and the petitioner

              must prove that (1) the failure to raise the claim earlier was due to the

              interference of government officials; (2) the claims is predicated on facts that

              were unknown to the petitioner and could not have been discovered with due

              diligence or (3) the right asserted was recognized by the United States Supreme

              Court or the Pennsylvania Supreme Court as a constitutional right after the

              petitioner's case was decided and the right has been upheld to apply

              retroactively. 42 Pa.CS.A. §9545(b)(l)(i)·(iii).A petition alleging one of these

              exceptions must be filed within sixty days of the date that the claim could have

              been presented. 42 Pa.CS.A. §954S(b)(2).The 60-day rule requires a petitioner

              to plead and prove that the information on which he relies could not have been

              obtained earlier, despite the exercise of due diligence. Commonwealth v.

              Marshall, 596 Pa. 58 7 94 7 A.2d 714, 720 (2008).
                                    1




                           "As such, when a PCRA petition is not filed within one year of the

              expiration of direct review, or not eligible for one of the three limited

              exceptions, or entitled to one of the exceptions, but not filed within 60 days of

              the date that the claim could have been first brought, the trial court has no

              power to address the substantive merits of a petitioner's PCRA claims."



                                                       6
      Commonwealth v. Robinsonl 12 A.3d 477, 479 (Pa.Super. 2011) (quoting

      Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)).

                     In this case, there is no dispute that this fifth PCRA petition is

      facially untimely, i.e., that it was filed more than a year after Appellant's

     judgment of sentence became final. Rather, the issue raised is whether the

en   newly recognized constitutional right timeliness exception, Section

      9545(b)(l)(iii), applies, making this a timely petition, establishing jurisdiction

     for a review of the underlying merits.

                     Alleyne has not been held to apply retroactively to post-conviction

     proceedings by either the United States Supreme Court or the Pennsylvania

     Supreme Court, thus, this claim must fail.2 In fact, the case of Commonwealth v.

     Miller, 102 A.3d 988 (Pa.Super. 2014) addressed this issue of whether an

     untimely PCRA petition can be saved under Section 954S(b)(l)(iii) based on

     Alleyne. First, the Miller Court set forth the requirements under this exception

     as follows:


                    Subsection (iii) of Section 9545[ (b)(l)] has two
                    requirements. First, it provides 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 provided in this
                    section. Second, it provides that the right "has been
                    held" by "that court" to apply retroactively. Thus, a
                    petitioner must prove that there is a "new"
                    constitutional right and that the right "has been held"
                    by that court to apply retroactively. The language "has

             This Court notes that in the recent case of Commonwealth v. Riggle, 119 A.3d 1058
     (Pa.Super, 2015), the Pennsylvania Superior Court held that the U.S. Supreme Court's holding in
     Alleyne v. U.S. was not entitled to retroactive effect on post-conviction review since the new rule
     set forth in Alleyne was not substantive and did not constitute a watershed procedural rule.
                                                      7
                    been held" is in the past tense. These words mean that
0)
                    the action has already occurred, i.e., "that court" has
                    already held the new constitutional right to be
                    retroactive to cases on collateral review. By employing
                    the past tense in writing this provision, the legislature
                    clearly intended that the right was already recognized
                    at the time the petition was filed.
     Miller, 102 A.3d 988 at 994. The Miller Court opined that because neither the

     United States Supreme Court nor the Pennsylvania Supreme Court, announced

     that Alleyne applied retroactively) that decision could not qualify as a

     timeliness exception, Id. at 995. Accordingly, Appellant cannot avail himself of

     this timeliness exception to the time-bar requirements     of the PCRA. This fifth

     PCRA petition was untimely filed, and it was properly dismissed without

     reaching the merits of the underlying issue.


                                         CONCLUSION

                    Based on the foregoing analysis, the final order of dismissal dated

     September 9, 2015, dismissing Appellant's untimely fifth PCRA petition should

     be affirmed.



                                                   BY THE COURT:




                                                   m~~~~
                                                   COURT OF COMMON PLEAS
                                                   MONTGOMERY COUNTY
                                                   PENNSYLVANIA
                                                   3ST" JUDICIAL DISTRICT




                                               8
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ftl
;::r   Copies sent on October 30, 2015
       By Interoffice Mail to:
       Anne Schools, Court Administration

       By First Class Mail to:
       William D'Agostino #EF3714
       SCI Rockview
       Box A
       Bellefonte, PA 16823




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