J-S38009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RICHARD M. DECKER, JR.

                         Appellant                  No. 1944 MDA 2014


              Appeal from the PCRA Order of November 4, 2014
              In the Court of Common Pleas of Lancaster County
              Criminal Division at No.: CP-36-CR-0001576-2010


BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                              FILED JULY 14, 2015

      Richard M. Decker, Jr., appeals the November 4, 2014 order that

dismissed his petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the factual and procedural history of this

case as follows:

      On December 9, 2009[,] just after midnight, [Decker] and
      another individual entered the House of Pasta in Lancaster
      County, Pennsylvania, they each removed a six pack of beer
      from the cooler, then they left without paying for them. When
      they were about to drive away, two restaurant employees
      confronted [Decker] and the other individual, demanding that
      they return the beer. The other individual returned it, but
      [Decker] pointed a handgun1 at them, putting them in fear of
      imminent serious bodily injury.       [Decker] and the other
      individual drove off.
         1
            The handgun was a BB gun that looked like a
         semiautomatic weapon, and the orange tape indicating
         that it was a non-lethal weapon had been blackened to
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          make it look like a lethal weapon. Indeed, when the gun
          was pointed at the victims, they became afraid and left the
          parking lot.

       By Criminal Information at Docket No. 1576-2010, [Decker] was
       charged with Robbery-Threat of Immediate Serious Injury (F-1)
       (Count One), Criminal Conspiracy-Robbery (F-1) (Count 2), and
       Retail Theft (S) (Count Three).[1] Michael V. Marinaro, Esquire
       was appointed to represent [Decker].

       On August 11, 2011, [Decker] pled guilty pursuant to an open
       plea to the Robbery charge at Count One. Following submission
       of a 7-page written colloquy and the [sentencing court’s] oral
       colloquy, [the sentencing court] accepted [Decker’s] guilty plea
       and deferred sentencing pending the completion of a pre-
       sentence investigation.      On September 20, 2011, the
       Commonwealth filed a Notice of Intention to Seek Imposition of
       Mandatory Minimum Sentence pursuant to 42 Pa.C.S.A. § 9712.

       On September 23, 2011, [the sentencing court held its
       sentencing hearing.     Decker] was aware that a mandatory
       minimum sentence of at least five years could be imposed and
       was also aware that, without considering the mandatory
       sentencing and based on his prior record, the minimum sentence
       per sentencing guidelines would be 6.5 years. On Count One,
       [the sentencing court] sentenced [Decker] to a sentence of 6.5
       to 15 years plus restitution and costs. [Decker] did not file any
       post-sentence motions or a direct appeal.

       On October 3, 2013, [Decker] filed a pro se first Petition for
       Post-Conviction Relief. Vincent J. Quinn, Esquire, was appointed
       as counsel for this first PCRA Petition. On December 20, 2013,
       Attorney Quinn filed a “No-Merit Letter” and a Motion to
       Withdraw as Counsel (“Motion to Withdraw”) pursuant to
       Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
       On January 27, 2014, [the PCRA court] issued a Rule 907 [2]
       Notice, to which [Decker] did not respond. By Order docketed

____________________________________________


1
     See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(2), and 3929(a)(1),
respectively.
2
       Pa.R.Crim.P. 907.



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      on February 25, 2014, [the PCRA court] dismissed the Petition
      and granted Attorney Quinn’s Motion to Withdraw.

      On September 18, 2014, [Decker] filed his pro se second Petition
      for Post-Conviction Relief (“Second Petition”), claiming that he
      was sentenced pursuant to a minimum mandatory sentencing
      statute that subsequently was declared to be unconstitutional.
      He asked the [court] to re-sentence him without consideration of
      the sentencing statute. On September 26, 2014, [the PCRA
      court] issued a Rule 907 Notice informing [Decker] that [the
      PCRA court] intended to dismiss his Second Petition without
      further proceedings and allowing him to file a Response within
      20 days. Again, [Decker] did not file a Response. Therefore, by
      Order dated October 23, 2014 and docketed on November 4,
      2014, [the PCRA court] dismissed the Second Petition. On
      November 3, 2014, [Decker] filed a timely pro se Notice of
      Appeal. By Order dated November 19, 2014, [the PCRA court]
      directed him to file a [concise] statement of matters complained
      of on appeal (“Concise Statement”) within 21 days and notified
      him that “[a]ny issue not properly included in the statement
      timely filed and served pursuant to Pa.R.A.P. 1925(b) shall be
      deemed waived.” [Decker] failed to file a Concise Statement.

PCRA Court Opinion, 1/7/2015, at 1-4 (citations to record and some

footnotes omitted).   On January 7, 2015, the PCRA court filed an opinion

pursuant to Pa.R.A.P. 1925(a), in which it concluded that Decker had waived

all of his issues on appeal because he did not file a concise statement.

      Decker raises one issue on appeal: “Was [Decker] sentenced under the

mandatory sentencing statutes guidelines therefore making [Decker’s]

sentences illegal under the United States Constitution and the Pennsylvania

Constitution?” Decker’s Brief at v.

      Before reaching the merits of Decker’s issue, we must determine

whether Decker has preserved the issue, and whether we have jurisdiction

to entertain it.   Rule 1925(b) requires an appellant to file a concise


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statement if ordered to do so by the presiding judge.          Any issues not

preserved in the concise statement are waived. Pa.R.A.P. 1925(b)(4)(viii).

However, claims regarding the legality of sentence are non-waivable.

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008).

Challenges to the application of a mandatory minimum sentence are

generally challenges to the legality of a sentence.        Commonwealth v.

Eisenberg, 98 A.3d 1268, 1274 (Pa. 2014). Therefore, Decker’s failure to

file a concise statement is not fatal to his claim, if, and only if, we have

jurisdiction to review the case.       See Commonwealth v. Robinson, 931

A.2d 15, 19-20 (Pa. Super. 2007) (“A challenge to the legality of the

sentence . . . is non-waivable, and may be entertained so long as the

reviewing court has jurisdiction.”).

      Accordingly, we must consider whether we have jurisdiction to

consider Decker’s issue on appeal.         “[T]he PCRA time restrictions are

jurisdictional in nature; consequently, Pennsylvania courts may not entertain

untimely PCRA petitions.”    Commonwealth v. Watts, 23 A.3d 980, 983

(Pa. 2011). Although a challenge to the legality of a sentence is technically

non-waivable, a court must first have jurisdiction before it may review such

a claim. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

      To be timely, a PCRA petition must be filed within one year of the

judgment of sentence becoming final.          42 Pa.C.S.A. § 9545(b)(1).   “[A]

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

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Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.”    42 Pa.C.S.A. § 9545(b)(3). The statute also provides for three

exceptions to the one-year time bar:

     (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.

42 Pa.C.S.A. § 9545(b).

     Here, Decker’s sentence became final on October 23, 2011, when the

time elapsed for Decker to file a direct appeal. Therefore, Decker had until

October 23, 2012 to file a timely PCRA petition.       The instant petition was

filed on September 18, 2014 and was facially untimely. We must determine

whether any of the exceptions apply.

     In his PCRA petition, Decker asserts that the “newly-discovered fact”

exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), should apply. Decker argues that

he could not have known about Alleyne v. United States, 133 S.Ct. 2151


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(2013), and its progeny, which have declared the mandatory minimum

sentence statute unconstitutional, and their existence could not have been

ascertained within the one-year time bar. PCRA Petition, 9/18/2014, at 3-4.

However, our Supreme Court has held that “subsequent decisional law does

not amount to a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.”

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). Therefore, this

exception does not provide Decker relief.

     Decker also is not entitled to relief pursuant to the “newly recognized

constitutional right” exception.   See 42 Pa.C.S.A. § 9545(b)(1)(iii).     We

have held that the exception does not apply to cases involving Alleyne:

     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 Appellant’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. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

     Because no exception to the PCRA time-bar applies, Decker’s PCRA

petition was untimely.     Neither this Court nor the PCRA court have

jurisdiction to reach the merits of Decker’s legality of the sentence claim,

and we affirm the PCRA court’s order dismissing the petition.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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