J-S68006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :              IN THE SUPERIOR COURT OF
                             :                   PENNSYLVANIA
                             :
     v.                      :
                             :
                             :
DAVID MENGEL                 :
                             :
          Appellant          :              No. 29 MDA 2017

              Appeal from the PCRA Order November 30, 2016
 In the Court of Common Pleas of Berks County Criminal Division at No(s):
                         CP-06-CR-0001331-2008


BEFORE:    LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

JUDGMENT ORDER BY LAZARUS, J.:                    FILED OCTOBER 27, 2017

      David Mengel appeals from the trial court’s order dismissing his petition

filed pursuant to the Post Conviction Collateral Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

      On July 24, 2008, Mengel entered a guilty plea to involuntary deviate

sexual intercourse, aggravated indecent assault of a child, and incest. He was

sentenced, on October 21, 2008, to an aggregate term of 10-20 years’

imprisonment.    No post-sentence motions or direct appeal were filed.       On

October 20, 2014, Mengel filed the instant pro se PCRA petition claiming that

the mandatory minimum statute under which he was sentenced, 18 Pa.C.S. §

9718, is unconstitutional and his sentence, therefore, is illegal. Counsel was

appointed and subsequently filed a petition to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.3d 213 (Pa. Super. 1988); the court granted counsel’s

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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petition. After being granted an extension of time to file an objection to the

court’s Pa.R.Crim.P. 907 notice of intent to dismiss his petition, Mengel filed

an objection on October 31, 2016.              On November 30, 2016, the court

dismissed Mengel’s petition. This appeal follows.

       As the trial court recognizes, Mengel’s judgment of sentence became

final on November 21, 2008, after the time expired for him to file a direct

appeal. Pa.R.A.P. 903(a). Thus, he had one year from that date, or until

November 21, 2009, to file a timely PCRA petition.            See 42 Pa.C.S. §

9545(b)(1). Here, Mengel did not file his petition until October 20, 2014 --

almost 6 years later. Therefore, Mengel’s petition is facially untimely and the

PCRA court has no jurisdiction to entertain his petition unless he establishes

one of the exceptions to the PCRA jurisdictional time bar.

       Mengel’s petition does not prove an exception to the time bar;1 thus, he

is entitled to no relief. While Commonwealth v. Wolfe, 140 A.3d 651 (Pa.

____________________________________________


1 Mengel argues that because his petition was filed within 60 days of
Commonwealth v. Neumann, 99 A.3d 86 (Pa. Super. 2014) (decided
August 20, 2014), he meets the “newly discovered facts” exception to the
PCRA. In Neumann, our Court found that 42 Pa.C.S. § 9712.1(c) was not
severable with the remainder of the mandatory minimum statute and, thus,
was rendered unconstitutional by Alleyne v. United States, 133 S. Ct. 2151
(2013). See infra n.2. However, in Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa. Super. 2013), we stated that “[o]ur Courts have expressly
rejected the notion that judicial decisions can be considered newly-discovered
facts which would invoke the protections afforded by section 9545(b)(1)(ii).”
See also Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011) (holding that
subsequent decisional law does not amount to new “fact” for purposes of
invoking section 9545(b)(1)(ii) of PCRA).



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2016), deemed section 9718 unconstitutional on its face, the fact remains that

Mengel’s sentence was not illegal when imposed, he was sentenced under the

statute in justifiable reliance upon existing United States Supreme Court

precedent that it was constitutional, and the statute is not a nullity. Therefore,

Mengel’s sentence can be only considered illegal now if Alleyne v. United

States, 133 S. Ct. 2151 (2013),2 is held to apply retroactively. That is simply

not the case. In Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),

our Supreme Court clearly held that Alleyne does not apply retroactively to

cases pending on collateral review. Moreover, pursuant to Commonwealth

v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015), Alleyne does not meet

the new constitutional right exception to the PCRA time bar and, as such,

Alleyne will only be applied to cases pending on direct appeal when Alleyne

was issued.     Here, Mengel’s judgment of sentence became final five years

before Alleyne was decided.

       Accordingly, Mengel is not entitled to relief; the trial court lacked

jurisdiction to consider his petition and properly dismissed it as untimely.

Commonwealth v. Taylor, 65 A.3 462, 465 (Pa. Super. 2013) (“although

illegal sentencing issues cannot be waived, they still must be presented in a

timely PCRA petition.”).

       Order affirmed.

____________________________________________


2 In Alleyne, the United States Supreme Court held that an element of an
offense that increases the mandatory minimum sentence must be found by a
jury beyond a reasonable doubt. 133 S. Ct. at 2155.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017




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