J-S19026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LINDSAY P. SHULER,

                            Appellant                 No. 1457 MDA 2016


                 Appeal from the PCRA Order August 15, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000323-2003

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 12, 2017

        Appellant, Lindsay P. Shuler, appeals pro se from the post-conviction

court’s August 8, 2016 order denying his petition under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           After careful review, we

conclude that Appellant’s petition was untimely filed and, therefore, the

PCRA court properly denied it. Thus, we affirm.

        The facts of Appellant’s underlying convictions are unnecessary to our

disposition of his appeal, and we also need not reiterate the lengthy and

complex procedural history of his case. We only note that on February 14,

2003, Appellant pled guilty to various sexual offenses, including rape of a

person less than thirteen years old. He was sentenced on July 3, 2003, to

an aggregate term of 6 to 12 years’ incarceration, followed by 10 years’
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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probation.     Appellant filed a timely direct appeal and, after this Court

affirmed, our Supreme Court denied his petition for allowance of appeal on

August 9, 2004. See Commonwealth v. Shuler, 849 A.2d 610 (Pa. Super.

2004) (unpublished memorandum), appeal denied, 857 A.2d 678 (Pa.

2004).

       Between 2005 and 2015, Appellant filed several PCRA petitions, all of

which were denied. On July 25, 2016, he filed another pro se petition, which

he titled, “Motion to Vacate Mandatory Sentence, Nunc Pro Tunc.” Therein,

Appellant contended that a mandatory minimum term of incarceration

imposed in his case is illegal under Alleyne v. U.S., 133 S.Ct. 2151.        On

August 15, 2016, the PCRA court issued an order denying Appellant’s

petition.1

       Appellant filed a timely, pro se notice of appeal. He also filed a pro se

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,

despite not being ordered to do so by the court.        The court filed a Rule

1925(a) opinion on September 15, 2016, stating that it was relying on the

reasons set forth in its order denying Appellant’s petition. Herein, Appellant

presents four questions for our review:
____________________________________________


1
  The PCRA court did not issue a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s petition without a hearing. However, Appellant does not
challenge that omission on appeal and, even if he did, “our Supreme Court
has held that where the PCRA petition is untimely, the failure to provide [a
Rule 907] notice is not reversible error.” Commonwealth v. Davis, 916
A.2d 1206, 1208 (Pa. Super. 2007).



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      I) Did the PCRA [c]ourt commit an error of law by not applying
      [] Appellant’s case retroactively, when his case was still pending
      [on] appeal at the time Alleyne … was decided?

      II) Did the [t]rial [c]ourt commit an error of law by imposing an
      illegal mandatory minimum sentence under 42 Pa.C.S.A. [§]
      9718,    which     is   facially void   pursuant    to   Alleyne;
      [Commonwealth v.] Newman[, 99 A.3d 86 (Pa. Super. 2014)
      (en banc)]; [and Commonwealth v.] Valentine[, 101 A.3d
      801 (Pa. Super. 2014),] and can never be waived?

      III) Did the [t]rial [c]ourt commit an error of law by violating []
      Appellant’s due process rights of the U.S. Constitution
      Amendment VI, for its failure to notify him that every element of
      his crimes and facts must be presented to the jury, found
      beyond a reasonable doubt and made part of the record, before
      waiver of [the] right to [a] jury trial?

      IV) Did the PCRA [c]ourt commit an error of law by violating []
      Appellant’s equal protection rights of the U.S. Constitution
      Amendment XIV, Sec. 1, for its failure to provide a rationale
      bases [sic] for the difference in treatment and treat his case
      upon the same rule under the same circumstances when it
      dismissed [] Appellant’s Motion to Vacate Mandatory Minimum
      Sentence, Nunc Pro Tunc?

Appellant’s Brief at 3.

      To begin, we note that in Appellant’s “Motion to Vacate Mandatory

Minimum Sentence, Nunc Pro Tunc,” he presented a cognizable PCRA issue

by arguing that his mandatory minimum sentence is illegal under Alleyne.

See Newman, 99 A.3d at 90 (stating that “a challenge to a sentence

premised upon Alleyne … implicates the legality of the sentence”);

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (“Issues

concerning the legality of sentence are cognizable under the PCRA.”)

(citation omitted).   “[A]lthough legality of sentence is always subject to

review within the PCRA, claims must first satisfy the PCRA’s time limits or


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one of the exceptions thereto.”      Commonwealth v. Fahy, 737 A.2d 214,

222 (Pa. 1999).

      Here, Appellant’s judgment of sentence became final on November 7,

2004, ninety days after the Pennsylvania Supreme Court denied his petition

for allowance of appeal.     See 42 Pa.C.S. § 9545(b)(3) (stating that a

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Commonwealth v. Owens,

718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,

petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court). Consequently, Appellant’s current petition, filed in July of

2016, is patently untimely, and for this Court to have jurisdiction to review

the merits of his challenge to the legality of his sentence, Appellant must

prove that he meets one of the exceptions to the timeliness requirements

set forth in 42 Pa.C.S. § 9545(b).

      Appellant has failed to meet this burden.       In his petition, and on

appeal, Appellant argues that a mandatory minimum sentence imposed in

his case is illegal under Alleyne, in which the United States Supreme Court

held that “facts that increase mandatory minimum sentences must be

submitted to the jury” and found beyond a reasonable doubt. Alleyne, 133

S.Ct. at 2163. Presumably, Appellant’s reliance on Alleyne is an effort to

satisfy the ‘new constitutional right’ exception of section 9545(b)(1)(iii). His

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attempt do so, however, fails because Alleyne cannot satisfy the ‘new

constitutional     right’    exception         of   section   9545(b)(1)(iii).   In

Commonwealth v. Abul-Salaam, 812 A.2d 487 (Pa. 2002), our Supreme

Court stated:

       Subsection (iii) of Section 9545[(b)(1)] 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 this court 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 been held” is in
       the past tense. These words mean that 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.

Id. at 501.         In the more recent decision of              Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016), our Supreme Court held that

Alleyne does not apply retroactively to collateral attacks on mandatory

minimum sentences. Thus, Appellant cannot rely on Alleyne to satisfy the

exception of section 9545(b)(1)(iii).2 Consequently, the PCRA court did not

err in denying Appellant’s untimely petition, and we are without jurisdiction

to address the merits of his legality of sentence claim.

____________________________________________


2
  We note, however, that if at some point the United States Supreme Court
holds that Alleyne does apply retroactively to collateral review, Appellant
may file a PCRA petition within 60 days of that decision reasserting the
timeliness exception of section 9545(b)(1)(iii).



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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2017




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