J-S56015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID R. MCGINLEY,

                            Appellant                No. 193 MDA 2015


                Appeal from the PCRA Order December 23, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001634-1994


BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 27, 2015

       Appellant, David R. McGinley, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

       On October 11, 1995, Appellant was convicted by a jury of involuntary

deviate sexual intercourse, aggravated indecent assault, indecent assault,

indecent exposure, and corruption of minors as a result of his assault of a

five-year-old girl. The trial court sentenced Appellant on December 7, 1995,

to an aggregate term of incarceration of ten to thirty years. Appellant filed a

direct appeal, this Court affirmed the judgment of sentence on March 10,

1997, and our Supreme Court denied allowance of appeal. Commonwealth
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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v. McGinley, 0912 Harrisburg 1995, 695 A.2d 438 (Pa. Super. filed March

10, 1997) (unpublished memorandum), petition for allowance of appeal

denied, 698 A.2d 65 (Pa. 1997).

         Appellant filed an Application for Writ of Habeas Corpus on September

16, 1997, which was denied by the United States District Court for the

Middle District of Pennsylvania on January 22, 1999. Appellant then filed an

appeal with the United States Third Circuit Court of Appeals, which was

denied on September 15, 1999. Thereafter, Appellant filed multiple motions

in the federal courts, all of which were denied.

         On September 12, 2002, Appellant filed a pro se PCRA petition, his

first.   Counsel was appointed, and on February 10, 2003, the PCRA court

denied relief.    On appeal, we affirmed dismissal of the petition, and our

Supreme Court denied further review. Commonwealth v. McGinley, 450

MDA 2003, 847 A.2d 759 (Pa. Super., filed January 15, 2004) (unpublished

memorandum), petition for allowance of appeal denied, 856 A.2d 833 (Pa.

2004).

         On December 4, 2006, Appellant filed a Petition for Pre-Sentence

Investigation Report, which was treated as a PCRA petition and denied by

the PCRA court. We affirmed denial of the petition, and our Supreme Court

denied Appellant’s petition for allowance of appeal.      Commonwealth v.

McGinley, 434 MDA 2007, 951 A.2d 1214 (Pa. Super. filed February 15,




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2008) (unpublished memorandum), petition for allowance of appeal denied,

856 A.2d 833 (Pa. 2008).

      Next, Appellant filed a Motion for Post Conviction DNA Testing

pursuant to 42 Pa.C.S. § 9543.1 on January 25, 2009.         The PCRA court

denied relief on April 29, 2009. On appeal, this Court affirmed the denial,

and our Supreme Court denied further review.             Commonwealth v.

McGinley, 882 MDA 2009, 13 A.3d 981 (Pa. Super., filed September 13,

2010) (unpublished memorandum), petition for allowance of appeal denied,

21 A.3d 1192 (Pa. 2011).

      On October 12, 2012, Appellant filed a Petition for Recusal, which was

denied by the PCRA court on November 13, 2012. Appellant filed an appeal

to this Court on December 10, 2012, which we quashed by order filed on

January 15, 2013.

      Appellant filed the instant PCRA petition and a brief on July 1, 2014.

The PCRA court issued notice of its intent to dismiss the petition pursuant to

Pa.R.Crim.P. 907, and Appellant filed a response on December 15, 2014.

The PCRA court dismissed the PCRA petition on December 23, 2014.

Appellant filed the instant timely appeal, and both the PCRA court and

Appellant complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. IS THE APPELLANT’S SENTENCE ILLEGAL BECAUSE THE
      SENTENCING JUDGE DID NOT STATE THAT HE WAS IMPOSING A
      SENTENCE THAT EXCEEDED THE APPLICABLE SENTENCING


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      GUIDELINE RANGES IN VIOLATION OF STATUTORILY DEFINED
      STANDARD SENTENCING PROCEDURES?

      2. IS THE APPELLANT’S SENTENCE ILLEGAL BECAUSE THE
      SENTENCING JUDGE DID NOT PROVIDE A CONTEMPORANEOUS
      WRITTEN STATEMENT OF THE REASONS HE IMPOSED A
      SENTENCE THAT EXCEEDED THE APPLICABLE SENTENCING
      GUIDELINE RANGES IN VIOLATION OF STATUTORILY DEFINED
      STANDARD SENTENCING PROCEDURES?

      3. IS THE APPELLANT’S SENTENCE EXCESSIVE BECAUSE IT WAS
      IMPOSED TO THE MAXIMUM LIMITS ALLOWED BY STATUTE
      DESPITE THERE BEING NO EVIDENCE TO WARRANT OR
      SUPPORT SUCH A HARSH TERM OF PUNISHMENT?

      4. IS THE APPELLANT’S SENTENCE ILLEGAL BECAUSE THE
      SENTENCING JUDGE EXHIBITED BIAS, PREJUDICE, AND ILL -
      WILL THROUGHOUT THE ADJUDICATION PROCESS AND
      ESPECIALLY BY THE MAXIMUM SENTENCE HE IMPOSED IN
      VIOLATION OF STATUTORILY DEFINED STANDARD SENTENCING
      PROCEDURES?

      5. IS THE APPELLANT’S SENTENCE ILLEGAL BECAUSE IT WAS
      IMPOSED    IN  VIOLATION   OF   RECENTLY   RECOGNIZED
      CONSTITUTIONAL PRINCIPLES THAT MAKE MANDATORY
      SENTENCING STATUTES A SEPARATE ELEMENT OF A CRIME
      THAT MUST BE SUBMITTED TOA JURY AND FOUND BEYOND A
      REASONABLE DOUBT?

Appellant’s Brief at v (verbatim).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

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Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).      “There is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.”     Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “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 time for seeking the review.”              42 Pa.C.S.

§ 9545(b)(3).

      Nevertheless, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),




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and (iii), is met.1 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented.

42 Pa.C.S. § 9545(b)(2).        In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

        The record does not reflect that Appellant sought review in the United

States Supreme Court after the Pennsylvania Supreme Court denied his

petition for allowance of appeal on July 10, 1997. Accordingly, Appellant’s

judgment of sentence became final in October 8, 1997, ninety days after the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of
____________________________________________


1
    The exceptions to the timeliness requirement are:

        (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. § 9545(b)(1)(i), (ii), and (iii).




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appeal and the time for filing a petition for review with the United States

Supreme Court expired. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. Here,

Appellant’s petition was filed more than seventeen years after his judgment

of sentence became final.

       Appellant has failed to assert any exceptions to the PCRA time bar;

indeed, he makes no argument concerning the timeliness of the petition.

Thus, regarding the first four issues that challenge the discretionary aspects

of sentence, the petition is untimely and no exceptions apply.2

       Appellant’s fifth issue asserts that his sentence was illegal in light of

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), based

upon the application of 42 Pa.C.S. § 9718.3 In Commonwealth v. Wolfe,

106 A.3d 800, 806 (Pa. Super. 2014), petition for allowance of appeal

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2
   We note additionally that the first four issues are waived because they
could have been raised on direct appeal and were not.                The PCRA
procedurally bars claims of trial court error by requiring a petitioner to show
the allegation of error is not previously litigated or waived. 42 Pa.C.S. §§
9543(a)(3), 9544; Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
780 (Pa. Super. 2015) (claims of trial court error that were not raised on
direct appeal are waived). Finally, “[c]hallenges to the discretionary aspects
of sentencing are not cognizable under the PCRA. See 42 Pa.C.S. §
9543(a)(2)(vii); [Commonwealth v.] Evans, [866 A.2d 442, 445–445 (Pa.
Super. 2005)].” Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa.
Super. 2007). Cf. Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa.
Super. 2013) (bald discretionary sentencing challenges are not cognizable
under PCRA) (citing Evans and Commonwealth v. Guthrie, 749 A.2d 502
(Pa. Super. 2000)).
3
    That section provided for mandatory minimum sentences for certain
crimes “against infant persons.” 42 Pa.C.S. § 9718.



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granted, 63 MAL 2015, 2015 WL 4755651 (Pa. filed August 12, 2015), and

relying upon Commonwealth v. Newman, 99 A.2d 86 (Pa. Super. 2014)

(en banc), this Court held that section 9718 is indistinguishable from the

statutes struck down in Newman and Commonwealth v. Valentine, 101

A.3d 801 (Pa. Super. 2014). Thus, we determined that 42 Pa.C.S. § 9718,

likewise, is void in its entirety and additionally, is facially void. Wolfe, 106

A.3d at 806.4

       This issue is not waived because challenges to the legality of a

sentence cannot be waived. Commonwealth v. Miller, 102 A.3d 988, 996

(Pa. Super. 2014) (Alleyne challenge to legality of sentence is “not

technically waivable”).      However, the issue is untimely because Appellant

raised it for the first time more than one year after his judgment of sentence

became final, and he has not asserted and proved one of the PCRA’s

enumerated exceptions.           As a result, we lack jurisdiction to review it.   42

Pa.C.S. § 9545(b).

       As noted, Appellant fails to assert the applicability of any of the section

9545(b)(2) exceptions in his brief.             Instead, he merely argues that his

sentence was illegal. The only exception that arguably could be applicable is

the   third   exception     of     section     9545(b)(1),   the   “newly   recognized

constitutional right” exception.         “Our Courts have expressly rejected the
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4
  Appellant’s PCRA petition was filed more than five months before Wolfe
was filed.



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notion that judicial decisions can be considered newly-discovered facts which

would     invoke   the   protections   afforded   by   section    9545(b)(1)(ii).”

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013);

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (judicial decision

does not qualify as an exception under section 9545(b)(1)(ii)). Alleyne, a

judicial decision, is not a “fact” that satisfies 42 Pa.C.S. § 9545(b)(1)(ii).

        However, this Court has held that even if Alleyne is interpreted as

enunciating a newly recognized constitutional right, such right is not

applicable retroactively to cases on PCRA review. Miller, 102 A.3d at 995.

        Even assuming that Alleyne did announce a new constitutional
        right, neither our Supreme Court, nor the United States
        Supreme Court has held that Alleyne is to be applied
        retroactively to cases in which the judgment of sentence had
        become final.      This is fatal to [the a]ppellant’s argument
        regarding the PCRA time-bar. This Court has recognized that a
        new rule of constitutional law is applied retroactively to cases on
        collateral review only if the United States Supreme Court or our
        Supreme Court specifically holds it to be retroactively applicable
        to those cases. Commonwealth v. Phillips, 31 A.3d 317, 320
        (Pa. Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059
        (2012), citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478,
        150 L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
        Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
        purposes of subsection (iii), the language ‘has been held by that
        court to apply retroactively’ means the court announcing the rule
        must have also ruled on the retroactivity of the new
        constitutional right, before the petitioner can assert retroactive
        application of the right in a PCRA petition”), appeal denied, 597
        Pa. 715, 951 A.2d 1163 (2008). Therefore, [the a]ppellant has
        failed to satisfy the new constitutional right exception to the
        time-bar.

              We are aware that an issue pertaining to Alleyne goes to
        the legality of the sentence. See Commonwealth v. Newman,
        99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (stating, “a

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      challenge to a sentence premised upon Alleyne likewise
      implicates the legality of the sentence and cannot be waived on
      appeal”). It is generally true that “this Court is endowed with
      the ability to consider an issue of illegality of sentence sua
      sponte.” Commonwealth v. Orellana, 86 A.3d 877, 883 n.7
      (Pa. Super. 2014) (citation omitted). However, in order for this
      Court to review a legality of sentence claim, there must be a
      basis for our jurisdiction to engage in such review.          See
      Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.
      Super. 2011) (stating, “a challenge to the legality of a
      sentence ... may be entertained as long as the reviewing court
      has jurisdiction”) (citation omitted).    As this Court recently
      noted, “[t]hough not technically waivable, a legality of sentence
      claim may nevertheless be lost should it be raised ... in an
      untimely PCRA petition for which no time-bar exception applies,
      thus depriving the court of jurisdiction over the claim.”
      [Commonwealth v.] Seskey, [86 A.3d 237, 242 (Pa. Super.
      2014).    As a result, the PCRA court lacked jurisdiction to
      consider the merits of [the a]ppellant’s second PCRA petition, as
      it was untimely filed and no exception was proven.

Miller, 102 A.3d 995–996 (Pa. Super. 2014).             Cf. Commonwealth v.

Riggle, 119 A.3d 1058 (Pa. Super. 2015) (In a timely PCRA petition,

Alleyne not applicable retroactively on PCRA review). Miller applies to the

instant case. See also Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.

Super. 2013) (“[A]lthough illegal sentencing issues cannot be waived, they

still must be presented in a timely PCRA petition.”).

      Moreover, Alleyne was decided on June 17, 2013. Appellant filed his

PCRA petition on July 1, 2014, well over sixty days after the date the claim

could have been presented. See Commonwealth v. Boyd, 923 A.2d 513,

517 (Pa. Super. 2007) (stating that “[w]ith regard to [a newly] recognized

constitutional right, this Court has held that the sixty-day period begins to

run upon the date of the underlying judicial decision.”).

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     Accordingly, the PCRA court properly dismissed Appellant’s PCRA

petition as untimely.   Because the court below was without jurisdiction to

reach the merits of the PCRA petition, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015




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