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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
DYLAN L. MATTERN,                          :
                         Appellant         :
                                           :     No. 993 MDA 2016

                 Appeal from the Order Entered May 31, 2016
               In the Court of Common Pleas of Montour County
              Criminal Division at No(s): CP-47-CR-0000003-2007


BEFORE: OTT, DUBOW, AND PLATT*, JJ.

MEMORANDUM BY DUBOW, J.:                         FILED FEBRUARY 08, 2017

        Appellant, Dylan L. Mattern, appeals pro se from the May 31, 2016

Order entered in the Court of Common Pleas of Montour County denying and

dismissing his Petition for “Writ of Mandamus,” which we review as a Petition

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

9541-9546.      After careful review, we affirm on the basis that Appellant’s

Petition for “Writ of Mandamus” is untimely and this Court, thus, lacks

jurisdiction to review the Petition.

        The underlying facts and procedural history, as summarized in this

Court’s memorandum decision disposing of Appellant’s direct appeal from

the denial of his most recent post-sentence filing, are as follows:


*
    Retired Senior Judge Assigned to the Superior Court.
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      On January 30, 2007, Appellant pled guilty to aggravated
      indecent assault for sexually abusing a fifteen-year-old girl. On
      June 23, 2007, Appellant was sentenced to four to ten years of
      incarceration and, after a hearing, designated as a sexually
      violent predator (SVP) pursuant to 42 Pa.C.S. §§ 9795–9799.9
      (Megan’s Law II). He did not file a direct appeal. On November
      26, 2007, Appellant pro se filed a [PCRA Petition] challenging his
      classification as an SVP. Counsel was appointed. On August 11,
      2008, the PCRA court denied relief to Appellant, concluding that
      the relief he was requesting was non-cognizable under the PCRA.
      Appellant did not file a notice of appeal from that order.

      In the next several years, Appellant pro se filed a series of
      motions for sentence reduction and credit for time served.
      Relevant to the instant matter, Appellant raised the issue of his
      SVP classification once again by filing a petition for a writ of
      habeas corpus with the lower court on October 1, 2015. On
      November 2, 2015, the lower court denied this petition.
      Appellant filed a notice of appeal. Both Appellant and the lower
      court complied with Pa.R.A.P. 1925.


Commonwealth        v.   Mattern,   No.   2123    MDA    2015,     unpublished

memorandum at 1-2 (Pa. Super. filed June 8, 2016) (footnotes omitted).

On June 8, 2016, this Court affirmed the lower court’s dismissal of

Appellant’s Petition for Writ of Habeas Corpus.

      On April 20, 2016, Appellant filed the instant pro se Petition for “Writ

of Mandamus.” On May 31, 2016, the lower court denied and dismissed

Appellant’s Petition for “Writ of Mandamus.”

      On June 17, 2016, Appellant timely filed a pro se Notice of Appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents four issues for our review:




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   1. Appellant’s plea agreement is silent on whether the Appellant
      may withdraw the plea in the event that the trial court does not
      concur in the recommended sentence.

   2. Appellant’s guilty plea was improperly accepted by the court,
      because the trial court failed to demonstrate on the record,
      Appellant’s understanding of the charges and did not disclose
      that the elements of the crime charged were outlined in
      understandable terms, the court failed to comply with that
      mandatory requirement.

   3. Appellant’s plea is not voluntary and understandingly tendered,
      the Court failed to conduct an on the record colloquy regarding
      the plea as required by Pa.R.Crim.P. 590, formerly Pa.R.Crim.P.
      319(A).

   4. The trial court and counsel for Appellant failed to advise him of
      his right to petition to withdraw his guilty plea, of the right to
      counsel in filing such a petition and of the consequences of not
      filing such a petition.

Appellant’s Brief at (actual page) 8 (some capitalization omitted).

      As an initial matter, we deem Appellant’s Petition for “Writ of

Mandamus” to be a Petition filed pursuant to the PCRA. See 42 Pa.C.S. §§

9541-9546. The PCRA “shall be the sole means of obtaining collateral relief

and encompasses all other common law and statutory remedies for the same

purpose that exist when this subchapter takes effect[.]” 42 Pa.C.S. § 9542.

Our Supreme Court reiterated, “claims that could be brought under the

PCRA must be brought under that Act.” Commonwealth v. Hall, 771 A.2d

1232, 1235 (Pa. 2001) (emphasis in original).     Any petition filed after the

judgment of sentence becomes final will be treated as a PCRA petition if the

claim is cognizable under the PCRA. Commonwealth v. Fowler, 930 A.2d.

586, 591 (Pa. Super. 2007). In his pro se Petition for “Writ of Mandamus,”


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Appellant requests relief based upon allegations of an unlawfully induced

guilty plea and ineffective assistance of counsel, both of which are

cognizable under the PCRA.       Writ of Mandamus, filed 4/20/16, at (actual

page) 1-2; See 42 Pa.C.S. § 9543(a)(2).        Accordingly, we must review

Appellant’s Petition for “Writ of Mandamus” as a PCRA Petition, and we will

refer to it as such hereafter.

      We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.    Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final

“at the conclusion of direct review, including discretionary review in the



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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). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the petitioner

does not file the PCRA petition in a timely manner.       Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Appellant’s Judgment of Sentence became final on July 23,

2007, upon expiration of the time to file a Notice of Appeal. See 42 Pa.C.S.

§ 9545(b)(3); Pa.R.A.P. 903(a); Commonwealth v. Brown, 943 A.2d 264,

268 (Pa. 2008) (holding that when no direct appeal is filed, the one-year

period allowed for the filing of a PCRA petition commences upon the actual

expiration of the time period allowed for seeking direct review). In order to

be timely, Appellant needed to submit his PCRA Petition by July 23, 2008.

Id.   Appellant filed this PCRA Petition on April 20, 2016, more than eight

years after his Judgment of Sentence became final. The PCRA court properly

concluded that Appellant’s Petition is facially untimely. PCRA Court Opinion,

filed 5/31/16, at 7.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

      (b) Time for filing petition.

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the


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      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

            (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).     “[I]t is the appellant's burden to allege and

prove that one of the timeliness exceptions applies.”     Albrecht, supra at

1094 (citations omitted).

      Here, Appellant requests post-sentence relief eight years after his

sentence became final by putting forth allegations that he entered into an

unlawfully induced guilty plea and that his counsel was ineffective. Writ of

Mandamus, filed 4/20/16, at (actual page) 1-2. Neither claim falls under an

exception to the PCRA’s time bar.       See 42 Pa.C.S. § 9545(b).     In fact,

Appellant entirely fails to address the time bar issue.

      Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §


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9545(b)(1), and properly denied and dismissed Appellant’s Petition as

untimely. See PCRA Court Opinion at 1-3. We, thus, affirm the denial of

PCRA relief.1

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/8/2017




1
  As part of Appellant’s argument that he was unlawfully induced into a
guilty plea he summarily asserts that when the sentencing court rejected the
recommendation of the pre-sentence investigation report, the court
“imposed a sentence of 4 to 10 years, based upon facts found by the judge,
thus violating the holding in Apprendi and [Alleyne v. United States, 133
S.Ct. 2151 (2013)], [which] constitutes a Blakely violation.”         Writ of
Mandamus, filed 4/20/16, at (actual page) 4 (some capitalization omitted).
This argument is undeveloped. In addition, although a legality of sentence
claim cannot be waived, it must be properly raised in a timely PCRA Petition.
Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007); 42
Pa.C.S. § 9545(b)(2). The United States Supreme Court decided Alleyne on
June 17, 2013. In order to invoke the “constitutional right” exception under
42 Pa.C.S. § 9545(b)(1)(iii), Appellant needed to submit his PCRA Petition
within 60 days of June 17, 2013. See Commonwealth v. Boyd, 923 A.2d
513, 517 (Pa. Super. 2007) (stating that the 60-day period begins to run
upon the date of the underlying judicial decision). Appellant filed this PCRA
Petition on April 20, 2016, well after 60 days of the Alleyne decision. In
addition, our Supreme Court has recently reiterated that Alleyne does not
apply    retroactively   on   post-conviction   collateral review.        See
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).




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