J-S35014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

CHADWYCKE JAY STEVENSON,

                         Appellant                   No. 190 MDA 2018


              Appeal from the PCRA Order December 13, 2017
               In the Court of Common Pleas of Perry County
            Criminal Division at No(s): CP-50-CR-0000268-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 23, 2018

      Appellant, Chadwycke Jay Stevenson, appeals from the post-conviction

court’s December 13, 2017 order dismissing, as untimely, his petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We

affirm.

      The facts of Appellant’s case are not necessary to our disposition of his

present appeal.    We need only note that Appellant was convicted of

involuntary deviate sexual intercourse and, on January 8, 2015, he was

sentenced to mandatory term of 10 to 20 years’ for that offense pursuant to

42 Pa.C.S. § 9718(a)(1). Appellant did not file a direct appeal; consequently,

his judgment of sentence became final on February 7, 2015.

      On June 20, 2016, our Supreme Court issued Commonwealth v.

Wolfe, 140 A.3d 651 (Pa. 2016), holding that section 9718 is unconstitutional
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in light of Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding

that “facts that increase mandatory minimum sentences must be submitted

to the jury” and found beyond a reasonable doubt). Approximately one year

later, on June 23, 2017, Appellant filed a pro se PCRA petition asserting that

his mandatory sentence is illegal under Wolfe. Counsel was appointed and

filed an amended petition on his behalf. On December 13, 2017, the PCRA

court issued an order dismissing Appellant’s petition without a hearing,

concluding that it was untimely.1

       Appellant filed a timely notice of appeal and also timely complied with

the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The PCRA court issued a Rule 1925(a) opinion on

March 2, 2018. Herein, Appellant presents one issue for our review:

       Should the [PCRA] petition filed by [Appellant] be deemed
       untimely even though he filed after he discovered the Court’s
       ruling made in … Wolfe …, which found that mandatory sentences
       for sexual crimes [are] unconstitutional?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

       This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

____________________________________________


1 The PCRA court did not file a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition without a hearing. However, Appellant does not challenge
that error on appeal, thus waiving this claim for our review.               See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure
to challenge the absence of a Rule 907 notice constitutes waiver.”) (citation
omitted). Additionally, even had Appellant raised this issue, we have stated
that “where the petition is untimely,” the failure to issue a Rule 907 notice
“does not automatically warrant reversal.” Id. (citation omitted).

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by the evidence of record and is free of legal error.        Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007) (stating PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded to address the merits of the petition). Under the PCRA,

any petition for post-conviction relief, including a second or subsequent one,

must be filed within one year of the date the judgment of sentence becomes

final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:

      (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 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.



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42 Pa.C.S. § 9545(b)(1)(i)-(iii).    Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, as stated supra, Appellant’s judgment of sentence became final

on February 7, 2015, at the conclusion of the 30-day period for filing an appeal

with this Court from his judgment of sentence. See 42 Pa.C.S. § 9545(b)(3)

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

expiration of the time for seeking the review); Pa.R.A.P. 903(a) (notice of

appeal to Superior Court must be filed within 30 days after the entry of the

order from which the appeal is taken). Accordingly, he had until February 8,

2016, to file a timely petition, making his present petition filed on June 23,

2017 patently untimely. Thus, for this Court to have jurisdiction to review the

merits thereof, Appellant must prove that he meets one of the exceptions to

the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      Appellant fails to meet this burden.      Initially, his reliance on Wolfe

cannot satisfy the one-year time-bar of the PCRA for several reasons. First,

the Wolfe Court did not announce a new constitutional rule; it simply applied

the rule announced in Alleyne to hold that the mandatory minimum

sentencing scheme set forth in 42 Pa.C.S. § 9718 is unconstitutional.

Additionally, even if Wolfe did create a new rule, the Supreme Court did not

hold that Wolfe applies retroactively. Finally, Appellant did not file his petition

within 60 days of Wolfe’s filing; therefore, he cannot satisfy section

9545(b)(2).

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     Appellant also contends that the interests of justice demand that we

grant him sentencing relief, despite the untimeliness of his petition.   See

Appellant’s Brief at 12-13. However, our Supreme Court has made clear that

the PCRA “confers no authority upon [an appellate] [c]ourt to fashion ad hoc

equitable exceptions to the PCRA time-bar in addition to those exceptions

expressly delineated in the Act.” Commonwealth v. Watts, 23 A.3d 980,

983 (Pa. 2011) (citations omitted). Because, for the reasons stated supra,

Appellant cannot meet any of the statutory exceptions set forth in section

9545(b)(1), we cannot grant him relief on the basis of equity.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/23/2018




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