J-S73044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID T. WAGNER

                            Appellant                 No. 728 WDA 2016


                    Appeal from the PCRA Order May 6, 2016
               In the Court of Common Pleas of Crawford County
              Criminal Division at No(s): CP-20-CR-0000524-2008


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED OCTOBER 13, 2016

        David T. Wagner (“Appellant”) appeals from the order entered in the

Crawford County Court of Common Pleas, which dismissed his petition filed

for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On November 6, 2008, Appellant pled guilty to two counts of sexual assault

and one count of aggravated indecent assault related to numerous sexual

offenses Appellant committed over a three-month period against his fifteen-

year-old step-daughter. In exchange for his plea, thirty-seven (37) counts

against him were nolle prossed.



____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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       On March 4, 2009, the court sentenced Appellant to five (5) to ten

(10) years’ incarceration for aggravated indecent assault and three (3) to six

(6) years’ incarceration for each of his sexual assault convictions. The court

imposed the sexual assault sentences concurrently to each other, but

consecutively to the aggravated indecent assault sentence, resulting in an

aggregate sentence of eight (8) to sixteen (16) years’ incarceration.         On

March 12, 2009, Appellant filed a motion to modify sentence, which the

court denied on March 16, 2009. Appellant did not file a direct appeal.

       On November 16, 2015, Appellant filed a pro se “motion to vacate

judgment of sentence, and/or set aside mandatory minimum sentence

pursuant to Alleyne v. United States,[2] nunc pro tunc”. On November 23,

2015, the court treated Appellant’s filing as his first petition filed for relief

pursuant to the PCRA3 and appointed counsel. On March 30, 2016, the court

issued notice of its intent to dismiss Appellant’s petition without a hearing.

____________________________________________


2
  ___ U.S. ___, 133 S.Ct, 2151, 186 L.Ed.2d 314 (2013). In Alleyne, the
Supreme Court of the United States held that “[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.” Id., 133 S.Ct. at 2155.
3
  The PCRA court properly considered Appellant’s filing as a PCRA petition.
See Commonwealth v. Taylor, 65 A.3d 462, 466, 467 (Pa.Super.2013)
(“[A]ny motion filed after the finality of a sentence that raises an issue that
can be addressed under the PCRA is to be treated as a PCRA petition.
[Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa.Super.2007)]…, [A]n
untimely post-sentence motion filed after finality of judgment is to be
treated as a PCRA petition.”).




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Appellant filed a counseled response to the notice on April 11, 2016.    On

May 6, 2016, the PCRA court dismissed Appellant’s petition.

      On May 16, 2016, Appellant timely filed a notice of appeal. On May

17, 2016, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely

complied on May 20, 2016.      Appellant raises the following issue for our

review:

          WHETHER THE PCRA COURT ERRED IN DENYING
          APPELLANT PCRA RELIEF IN THE FORM OF VACATING HIS
          AGGRAVATED INDECENT ASSAULT SENTENCE THAT
          CONTAINED A MANDATORY MINIMUM INCARCERATION
          TERM OF FIVE YEARS BASED UPON THE UNITED STATES
          SUPREME COURT DECISIONS OF MILLER V. ALABAMA,
          [___] U.S. ___, 132 S.CT. 2455[, 183 L.Ed.2d 407]
          (2012), ALLEYNE… AND MONTGOMERY V. LOUISIANA,
          [___] U.S. ___[, 136 S.Ct 718, 193 L.Ed2d 599] (2016)?

Appellant’s Brief at 7.

      Before we address the merits of Appellant’s claim, we must determine

whether his PCRA petition was timely.    The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).     “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA




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timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. A judgment is deemed 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

            (i) the failure to raise the claim 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).       Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

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days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

       Here, Appellant’s judgment of sentence became final on April 15,

2009, when his time to file a direct appeal expired.         See 42 Pa.C.S. §

9545(b)(3).     Thus, he had until April 15, 2010 to timely file a petition for

relief pursuant to the PCRA.          See 42 Pa.C.S. § 9545(b)(1).   Appellant’s

petition, filed November 16, 2015, is facially untimely.        We must now

determine whether Appellant has pled and proved any of the exceptions to

the PCRA time bar.

       Appellant claims that his sentence was illegal pursuant to Alleyne

because the court imposed a five-year minimum sentence on his aggravated

indecent assault conviction pursuant to 42 Pa.C.S. § 9718.4           Appellant

admits that neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held that Alleyne applies retroactively. Appellant

argues, however, that because the United States Supreme Court held that

Miller v. Alabama applies retroactively, “it makes logical sense that

[Alleyne] should and will be applied retroactively to cases such as

[A]ppellant’s.” Appellant’s Brief at 16-17.


____________________________________________


4
  This Court struck down § 9718 as unconstitutional pursuant to Alleyne in
Commonwealth v. Wolfe, 106 A.3d 800, 806 (Pa.Super.2014), aff'd, 140
A.3d 651 (Pa.2016).




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      Unfortunately for Appellant, to qualify for the constitutional right

exception to the PCRA time limitation, Appellant must plead and prove that

the Supreme Court of Pennsylvania or the Supreme Court of the United

States has recognized a constitutional right and that the right “has been

held by that court to apply retroactively.”     42 Pa.C.S. § 9545(b)(1)(iii)

(emphasis added).       In Commonwealth v. Washington, 142 A.3d 810

(Pa.2016), the Supreme Court of Pennsylvania held that Alleyne does not

apply retroactively to cases pending on collateral review.     As Appellant

admits, neither the Supreme Court of Pennsylvania nor the Supreme Court

of the United States has held that Alleyne applies retroactively.     Thus,

Appellant’s petition remains time-barred, and the PCRA court correctly

determined it lacked jurisdiction to hear it.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2016




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