J-S48004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JARED LEE DOWNWARD                         :
                                               :
                       Appellant               :   No. 2010 MDA 2016

                Appeal from the PCRA Order November 15, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005279-2008


BEFORE:      OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                   FILED AUGUST 21, 2017

        Jared Lee Downward appeals pro se from the Order entered November

15, 2016, in the Court of Common Pleas of Lancaster County that denied,

without a hearing, Downward’s serial petition filed pursuant to the

Pennsylvania        Post   Conviction Relief   Act, 42   Pa.C.S.   §§   9541–9546.

Downward claims he is serving an illegal sentence, and that he is entitled to

the same relief as those who can timely file PCRA petitions based on the

equal protection clause to the Constitution.        Based upon the following, we

affirm.

        The background of this case was summarized by this Court in

Downward’s prior PCRA appeal:


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     The relevant facts and procedural history of this case are as
     follows. From 2006 to 2008, [Downward] engaged in sexual acts
     with three minor victims. On July 23, 2009, [Downward] pled
     guilty to one count of rape of a child and three counts each of
     involuntary deviate sexual intercourse (“IDSI”), statutory sexual
     assault, corruption of minors, and indecent assault. The court
     sentenced [Downward] on November 25, 2009, to an aggregate
     term of twelve-and-one-half (12½) to twenty-eight (28) years’
     incarceration. [Downward’s] sentence included concurrent
     mandatory minimum terms of ten (10) to twenty (20) years’
     incarceration for the three IDSI convictions and the conviction
     for rape of a child, pursuant to 42 Pa.C.S.A. § 9718. [Downward]
     did not file a direct appeal.

     On October 12, 2010, [Downward] filed his first pro se PCRA
     petition. The court appointed counsel, who filed an amended
     petition. On December 21, 2011, the PCRA court entered an
     order granting in part and denying in part the petition. The court
     concluded [Downward’s] convictions for indecent assault, IDSI,
     and rape of a child with respect to one victim, C.S.P., should
     have merged for sentencing purposes. The court further
     determined [Downward] performed the act underlying his
     conviction for rape of a child before Section 9718 was amended
     to increase the mandatory minimum sentence for that offense
     from five to ten years’ incarceration. After PCRA counsel
     requested clarification of the decision, the court entered an
     amended order on January 19, 2012, in which it vacated
     [Downward’s] sentences for rape of a child, IDSI, and indecent
     assault with respect to C.S.P., and declared the mandatory
     minimum sentence applicable to [Downward’s] rape conviction
     under Section 9718 was five years’ incarceration. The court
     denied PCRA relief in all other respects, including [Downward’s]
     claim that additional charges should have merged for
     sentencing. [Downward] appealed the PCRA court’s order on
     February 21, 2012, after the court had scheduled a hearing to
     resentence [Downward] in accordance with the order. On March
     30, 2012, the court resentenced [Downward] to a mandatory
     minimum term of five (5) to ten (10) years’ incarceration for the
     rape of a child conviction and merged the indecent assault and
     IDSI convictions relating to C.S.P. The court re-imposed the
     original sentences for all other convictions, which resulted in a
     new aggregate sentence of twelve (12) to twenty-six years (26)
     years’ incarceration.3


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         ____________________________

               3
              The PCRA court’s order did not state it was vacating any
            of [Downward’s] sentences other than those for rape of a
            child, indecent assault, and IDSI with respect to C.S.P.
            Nevertheless, the court’s resentencing order indicates it
            re-imposed the original sentences for the remaining
            convictions.
         ____________________

         This Court affirmed the PCRA court’s January 19, 2012 order on
         November 1, 2012, and the Pennsylvania Supreme Court denied
         allowance of appeal on March 26, 2013. See Commonwealth v.
         Downward, 63 A.3d 818 (Pa.Super. 2012) (unpublished
         memorandum), appeal denied, 619 Pa. 698, 63 A.3d 1243
         (2013) (rejecting [Downward’s] additional merger claims).
         [Downward] filed his second pro se PCRA petition on April 23,
         2013, which the PCRA court denied as untimely on May 23,
         2013. This Court affirmed the PCRA court’s order on April 9,
         2014. See Commonwealth v. Downward, 102 A.3d 526
         (Pa.Super. 2014) (unpublished memorandum). On April 16,
         2015, [Downward] pro se filed the instant “motion for correction
         of sentence nunc pro tunc,” which the PCRA court denied on May
         13, 2015.

Commonwealth v. Downward, 158 A.3d 177 [1037 MDA 2015] (Pa.

Super. September 13, 2016) (unpublished memorandum, at 1–4) (some

footnotes omitted). This Court found that the trial court should have treated

Downward’s “motion for correction of sentence nunc pro tunc” as a PCRA

petition, determined that the PCRA petition was untimely and Downward had

failed    to       plead   and   prove   any   exception   to   the   PCRA’s   timeliness

requirements, and affirmed the denial of relief. See id.




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       On September 29, 2016, Downward filed the present pro se PCRA

petition — his fourth.1 On October 25, 2016, the PCRA court issued notice of

intent to dismiss the petition as untimely. Downward filed a response to the

Rule 907 notice, after which the PCRA court dismissed the petition on

November 15, 2016. This appeal followed.

       Our standard of review is well settled:

       When reviewing the propriety of an order denying PCRA relief,
       this Court is limited to a determination of whether the evidence
       of record supports the PCRA court's conclusions and whether its
       ruling is free of legal error. This Court will not disturb the PCRA
       court’s findings unless there is no support for them in the
       certified record.

Commonwealth v. Woods, ___ A.3d ___, ___ [2017 PA Super 181] (Pa.

Super. 2017) (citations omitted).

       The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000).                 All PCRA

petitions must be filed within one year of the date upon which the judgment

____________________________________________



1
  Although this petition was time-stamped and docketed on October, 3,
2016, the mailing envelope included in the certified record with the PCRA
petition reflects a post-mark date of September 29, 2016. Pursuant to the
prisoner mailbox rule, a PCRA petition is considered filed on the date it was
delivered to prison authorities for mailing. See Commonwealth v. Castro,
766 A.2d 1283, 1287 (Pa. Super. 2001); Commonwealth v. Little, 716
A.2d 1287 (Pa. Super. 1998). Applying the prisoner mailbox rule, we
consider September 29, 2016 as the date of filing of Downward’s present
petition.




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J-S48004-17


of sentence became final, unless one of the statutory exceptions applies. 42

Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition invoking one of these exceptions

must be filed within 60 days of the date the claim could have been

presented. 42 Pa.C.S. § 9545(b)(2).

       Here, the instant PCRA petition is facially untimely as Downward’s

judgment of sentence became final on December 28, 2009.2 Therefore, this

petition cannot be reviewed unless Downward pleads and proves a statutory

exception to the PCRA time bar.

       In his present petition, Downward asserts that because he was

sentenced to two mandatory minimum sentences pursuant to 42 Pa.C.S. §

9718 for IDSI, he is entitled to resentencing under Alleyne v. United

States, 133 S. Ct. 2151 (2013)3 and Commonwealth v. Wolfe, 140 A.3d

____________________________________________


2
   See Commonwealth v. Downward, 158 A.3d 177 (Pa. Super.
September 13, 2016) (unpublished memorandum, at *8 and n.6) (finding
“[Downward’s] judgment of sentence became final on Monday, December
28, 2009, upon the expiration of the time to file a direct appeal with this
Court from the original date of sentencing on November 25, 2009”; “even if
we used the amended sentence date of March 30, 2012, as the relevant date
for determining when [Downward’s] judgment of sentence became final, the
current PCRA petition is still time-barred.”).
3
 In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S. Ct.
at 2155. “The effect [of Alleyne] was to invalidate a range of Pennsylvania
sentencing statutes predicating mandatory minimum penalties upon non-
elemental facts and requiring such facts to be determined by a
preponderance of the evidence at sentencing.” Commonwealth v.
Washington, 142 A.3d 810, 812 (Pa. 2016).



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651 (Pa. June 20, 2016) (holding 42 Pa.C.S. § 9718 is unconstitutional

under Alleyne). As such, Downward’s claim implicates the PCRA exception

that requires a petitioner to plead and prove “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)(iii).4

       The   PCRA     judge,    the   Honorable   David   L.   Ashworth,   analyzed

Downward’s claim, as follows:

             Here, Downward appears to be invoking the time-bar
       exception under Section 9545(b)(1)(iii). Downward maintains
       that his mandatory minimum sentence pursuant to 42 Pa.C.S.A.
       § 9718, which provides mandatory minimum sentences for
       various crimes against children, is unconstitutional pursuant to
       Wolfe.     (See 2016 PCRA Petition at ¶¶14–15.)             Thus,
       Downward’s argument may be characterized as an attempt to
       assert the “new constitutional right” exception to the PCRA time-
       bar based on Wolfe.

              In Wolfe, the [Pennsylvania] Supreme Court affirmed the
       Superior Court’s holding that Section 9718 is unconstitutional
       under Alleyne. Wolfe, supra at ___, 140 A.3d at 663 (“[W]e
       reaffirm Hopkins[5] and find that Section 9718 is irremediably
       unconstitutional on its face, nonseverable, and void.”).


____________________________________________



4
 As the instant pro se petition was on filed September 29, 2016, which falls
within 60 days of this Court’s decision affirming the denial of relief on
Downwards’ third PCRA petition on September 13, 2016, Downward has
satisfied the 60-day requirement of 42 Pa.C.S. § 9545(b)(2).




                                           -6-
J-S48004-17


              This reliance on Wolfe is misplaced, however, as the
        Supreme Court did not recognize a new constitutional right, let
        alone hold any such right applied retroactively. Rather, it merely
        applied Alleyne to hold that a particular mandatory minimum
        sentence applied to Downward was unconstitutional. It is well-
        settled that Alleyne does not invalidate a mandatory minimum
        sentence when the claim is raised in an untimely PCRA petition.
        See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
        2014). Furthermore, our Supreme Court has held that Alleyne
        and its progeny do not apply retroactively to cases on collateral
        review. Commonwealth v. Washington, ___ Pa. ___, 142
        A.3d 810, [820] (2016). Thus, the Wolfe decision does not
        assist Downward in establishing a timeliness exception to the
        PCRA’s limitations.
        ____________________________
            5
              In Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d
            247, 249 (2015), our Supreme Court applied Alleyne to
            hold that the mandatory minimum sentence found at 18
            Pa.C.S.A. § 6317 (relating to drug activity in a school
            zone) was unconstitutional, and that severance of the
            violative provisions from the statue is not permissible.
        ________________________________________



PCRA Court Opinion, 11/15/2016, at 8–9.                 We agree with the sound

reasoning of Judge Ashworth.

        Wolfe involved a direct appeal from a judgment of sentence that post-

dated     Alleyne      and    applied    Alleyne   to   hold   Section   9718   was

unconstitutional; Wolfe did not establish a new constitutional right, much

less a constitutional right that applies retroactively.            Furthermore, in

Washington, supra, the Pennsylvania Supreme Court held “Alleyne does

not apply retroactively to cases pending on collateral review.” Id., 142 A.3d

at 820.




                                            -7-
J-S48004-17


       In short, because the present petition is patently untimely and does

not satisfy any PCRA statutory exception, Downward’s fourth PCRA petition

was properly dismissed as the PCRA court lacked jurisdiction to review the

petition.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




____________________________________________


5
  Because Downward’s petition does not overcome the PCRA time-bar, this
Court as well as the PCRA court lacks jurisdiction to entertain Downward’s
second, equal protection challenge.



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