J-S52030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FREDERICO ANTONIO DACENZO, JR.

                            Appellant                   No. 237 MDA 2017


                 Appeal from the PCRA Order January 18, 2017
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000074-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED AUGUST 29, 2017

        Frederico Antonio Dacenzo, Jr., appeals pro se from the trial court’s

order dismissing1 his third petition filed pursuant to the Post Conviction

Relief Act (PCRA).2 After careful review, we affirm.3

        On October 13, 2009, Dacenzo entered a negotiated guilty plea to ten

counts of sexual abuse of children (possession of child pornography) 4 and


____________________________________________


1
 The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal
error. Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super.
2012). The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. Id.
2
    42 Pa.C.S. §§ 9541-9546.
3
    We note that the Commonwealth has not filed an Appellee’s brief.
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one count of criminal use of a communication facility.5        Dacenzo was

sentenced to an aggregate term of 10-20 years’ imprisonment, with a 20-

year probationary tail.6 Dacenzo was also ordered to register for ten years

under Megan’s Law.7 Dacenzo did not file post-sentence motions or a direct

appeal.     On August 13, 2012, Dacenzo filed a pro se PCRA petition;

appointed counsel filed a motion to withdraw pursuant to Turner/Finley.

On October 24, 2012, Dacenzo filed a motion to dismiss counsel’s motion to

withdraw.     On December 6, 2012, the trial court entered an order giving

Dacenzo notice of its intent to dismiss his PCRA petition, in accordance with

Pa.R.Crim.P. 907(1), denying Dacenzo’s motion to dismiss and granting

counsel leave to withdraw.




                       _______________________
(Footnote Continued)
4
  18 Pa.C.S. § 6312(d). The first count of abuse of children was graded as a
third-degree felony, see 18 Pa.C.S. § 6312(d.1)(2)(i); the remaining nine
counts were graded as a second-degree felonies. Id. at § 6312(d.1)(2)(ii).
5
    18 Pa.C.S. § 7512(a), graded as a third-degree felony.
6
  Dacenzo was deemed not to be eligible under the Recidivism Risk
Reduction Incentive (RRRI) Act. See 61 Pa.C.S. §§ 4501-4512 (RRRI Act).
7
  Megan’s Law previously provided for the registration of sexual offenders
and was codified at 42 Pa.C.S.A. § 9791, et seq. Megan’s Law was replaced
with the Sexual Offender Registration and Notification Act (“SORNA”),
effective December 20, 2012. See 42 Pa.C.S.A. § 9799.10-9799.41.




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       On December 21, 2012, Dacenzo filed an objection to the court’s

intent to dismiss his petition.8 On January 8, 2013, the trial court dismissed

Dacenzo’s petition. Dacenzo appealed that decision; our Court affirmed the

trial court’s order concluding that the petition was patently untimely and

Dacenzo did not satisfy the “after-discovered fact” exception set forth in 42

Pa.C.S. § 9545(b)(1)(ii). See Commonwealth v. Dacenzo, 172 MDA 2013

(filed Sept. 19, 2013) (Pa. Super. 2013).

       On December 11, 2014, Dacenzo filed a pro se motion to amend his

sentence, seeking RRRI eligibility. On December 19, 2014, the court denied

the motion stating that Dacenzo was not RRRI eligible due to his conviction

for an offense that requires him to register under Megan’s Law.       See 61

Pa.C.S. § 4503(4).        In January 2015, Dacenzo filed an appeal from the

denial of his RRRI motion. On July 21, 2015, our Court affirmed the denial

of Dacenzo’s RRRI petition, treating the petition as a serial PCRA petition,

and concluding that the PCRA court lacked jurisdiction to grant Dacenzo any

relief where his petition was patently untimely and he did not plead and

prove any PCRA time-bar exception. Commonwealth v. Dacenzo, 80 MDA

2015 (filed July 21, 2015) (Pa. Super. 2015).



____________________________________________


8
  On December 26, 2012, Dacenzo appealed from the trial court’s order
denying his motion to dismiss counsel’s motion to withdraw. Our Court
subsequently dismissed this appeal as premature.




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       On February 23, 2016,9 Dacenzo filed the instant pro se PCRA petition,

his third.   On January 18, 2017, the PCRA court dismissed the petition as

untimely.

       Dacenzo filed a timely direct appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors relied upon for appeal.        On appeal,

Dacenzo presents the following issues for our consideration:

       (1)    Did the [c]ourt err when it used unconstitutional
              sentencing statutes to sentence [Dacenzo], then rule
              Alleyne v. U.S., [133 S. Ct. 2151] (2013), to be non-
              retroactive?

       (2)    Did the [c]ourt abuse its discretion when it used
              [Dacenzo’s] juvenile record to increase [his] [p]rior
              [record] score?10

       (3)    Did the [c]ourt abuse its discretion when it denied
              [Dacenzo] the [r]ight to [c]ounsel?

       (4)    Did the [c]ourt abuse its discretion when it issued an
              [i]ntent to [d]ismiss [Dacenzo’s] [PCRA] petition?

       (5)    Did the [c]ourt err when it waited six (6) days to mail its
              [i]ntent to [d]ismiss order to [Dacenzo]?,
____________________________________________


9
  While Dacenzo claims that he filed his petition on February 23, 2016, the
clerk of courts actually time-stamped it on March 4, 2016. However,
pursuant to Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super.
1998), “the prisoner mailbox rule provides that the date of delivery of the
PCRA petition by the defendant to the proper prison authority or to a prison
mailbox is considered the date of filing the petition.” Therefore, we will use
the February date as the controlling date.
10
   This issue is not cognizable under the PCRA as it raises a discretionary
aspect of Dacenzo’s sentence. See Commonwealth v. Tilghman, 531
A.2d 441 (Pa. Super. 1985); 42 Pa.C.S. § 9543(a)(2) (eligibility for relief
under PCRA).




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      (6)   Did the [c]ourt abuse its discretion when it ignored
            [Dacenzo’s] [o]bjection to the [c]ourt’s [i]ntent to
            [d]ismiss?

      (7)   Did the [c]ourt abuse its discretion          when    it    ruled
            [Dacenzo’s] PCRA petition as untimely?

      (8)   Did the [c]ourt abuse its discretion when it [d]ismissed
            [Dacenzo’s] PCRA petition?

      (9)   Did the [c]ourt err when it waited seven (7) days to mail
            its [o]rder to [d]ismiss?

Appellant’s Brief at 4-5.

      Before we address the merits of Dacenzo’s claims on appeal, we must

determine whether his PCRA petition was timely filed. Generally, a petition

for PCRA relief, including a second or subsequent petition, must be filed

within one year of the date the judgment is final.           See 42 Pa.C.S. §

9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d 1054 (Pa.

Super.   1997).     There     are,   however,   exceptions   to   the   timeliness

requirement, set forth in section 9545(b) of the PCRA. Where the petition

alleges, and the petitioner proves, that an exception to the time for filing the

petition is met, the petition will be considered timely. Id. These exceptions

include interference by government officials in the presentation of the claim,

after-discovered facts or evidence, and an after-recognized constitutional

right. See 42 Pa.C.S. § 9545(b)(1)(ii)-(iii). A PCRA petition invoking one of

these exceptions must “be filed within 60 days of the date the claims could

have been presented.”       Id. at (b)(2).   The timeliness requirements of the

PCRA are jurisdictional in nature and, accordingly, a PCRA court cannot hear



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untimely petitions.      Commonwealth v. Robinson, 837 A.2d 1157 (Pa.

2003).

       Instantly, Dacenzo filed his PCRA petition on February 23, 2016, when

he deposited it with prison authorities. Little, supra. Dacenzo’s judgment

of sentence became final, for purposes of the PCRA, on February 15, 2010,

after the time expired for him to file a direct appeal.            Pa.R.A.P. 903.

Therefore, in order to be timely under the PCRA, Dacenzo would have had to

have filed his petition by February 15, 2011. Accordingly, Dacenzo’s petition

is facially untimely. However, we must determine whether Dacenzo has pled

and proven an exception to the PCRA time bar.

       Dacenzo’s petition raises the PCRA’s “newly recognized constitutional

right” exception, 42 Pa.C.S. § 9545(b)(1)(iii). Specifically, Dacenzo claims

that his sentence is illegal because it was based on an unconstitutional

mandatory minimum statute,11 in contravention of Alleyne, supra, and that

he filed his petition within 60 days of the date of the recent United States

Supreme Court decision, Montgomery v. Louisiana, 136 S. Ct. 718

(2016).     In Alleyne, the Supreme Court held that “facts that increase

mandatory minimum sentences must be submitted to the jury” and must be

found beyond a reasonable doubt.               Id. at 2163.   In Montgomery, the

Supreme Court determined that the holding of Miller v. Alabama, 132 S.

____________________________________________


11
  It does not appear that Dacenzo was ever sentenced pursuant to an
unconstitutional mandatory minimum sentence.



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Ct. 2455 (2012),12 is a substantive rule of constitutional law to which state

collateral review courts were required, as a constitutional matter, to give

retroactive effect.

       A challenge to a sentence premised upon Alleyne implicates the

legality of the sentence. Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.

Super. 2014) (en banc).          While 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. See 42 Pa.C.S. § 9543(a)(2)(vii).

       Dacenzo is not entitled to relief in his untimely PCRA petition. In

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), the defendant

also filed an untimely PCRA petition raising the claim that his mandatory

minimum sentence was illegal. To overcome the untimeliness of his petition,

the defendant unsuccessfully argued that Alleyne announced a new

constitutional right under the PCRA that applies retroactively. Additionally,

the Court found meritless the defendant’s allegation that his illegal sentence

claim was not waivable on appeal where “in order for th[e] Court to review a

legality of sentence claim, there must be a basis for [its] jurisdiction.” Id. at

995.    Finally, the Miller Court held that Alleyne is not to be applied

retroactively to cases in which the judgment of sentence had become final.
____________________________________________


12
   In Miller, supra, the United States Supreme Court held that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile homicide offenders.” Miller, 132 S.
Ct. at 2469. Miller has no applicability to the instant case.



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Id. See also Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016)

(rule announced in Alleyne does not apply retroactively to cases pending on

collateral review).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




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