J-S45036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFFREY CRAIG BOWSER,

                            Appellant                 No. 1939 WDA 2015


                Appeal from the PCRA Order November 10, 2015
                in the Court of Common Pleas of Mercer County
               Criminal Division at No.: CP-43-CR-0000317-2007
                            CP-43-CR-0001350-2007


BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JULY 26, 2016

        Appellant, Jeffrey Craig Bowser, appeals from the order dismissing his

timely second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 We affirm.

        The PCRA court summarized the relevant facts and procedural history

of this case as follows:

               After pleading guilty to a number of sex offenses,
        [Appellant] was sentenced on August           27, 2008[,] to an
        aggregate term of 47½ to 114 years of imprisonment by the
        [trial court]. [Appellant] then filed his first PCRA [petition],
        arguing that his sentence was illegal, and [the] [c]ourt appointed
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 We have amended the caption to reflect that the PCRA court’s order dated
November 6, 2015, was filed on November 10, 2015.
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        PCRA counsel. PCRA counsel, the Commonwealth, and [the]
        [c]ourt all agreed that PCRA relief was warranted because
        former defense counsel, the Commonwealth, and [the trial court]
        relied on incorrect sentencing guidelines, which resulted in
        incorrect mandatory minimum sentences on some of the charges
        and an incorrect offense gravity score on at least one charge.
        [Appellant], the Commonwealth, and [the] [c]ourt agreed that
        the proper remedy was to vacate the prior sentence and to re-
        sentence [Appellant] on all counts.

              [The] [c]ourt re-sentenced [Appellant] on April 18, 2013[,]
        to an aggregate term of 39½ to 84 years of imprisonment. Each
        of [Appellant’s] individual sentences were within the standard
        guideline range, and were also above any of the applicable
        mandatory minimum sentence requirements. [The] [c]ourt did
        not explicitly sentence [Appellant] pursuant to any of the various
        mandatory minimum sentence provisions. At the time of re-
        sentencing, [Appellant] stated that being re-sentenced would
        resolve the issues of his PCRA.[2] Nonetheless, [Appellant] filed
        a motion to modify the sentence, which was denied by [the]
        [c]ourt. [Appellant] then filed an appeal to the Superior Court,
        which    affirmed    [the    judgment      of  sentence].   [(See
        Commonwealth v. Bowser, 2014 WL 10964985, at *1 (Pa.
        Super. filed Apr. 25, 2014) (unpublished memorandum).
        Appellant did not file a petition for allowance of appeal with our
        Supreme Court.]

               On April 24, 2015, [Appellant] filed a second PCRA
        petition. [The] [c]ourt appointed counsel and a hearing was held
        on November 6, 2015. Prior to the hearing, PCRA counsel
        narrowed the issues down to three, the first two of which dealt
        with the circumstances regarding [Appellant’s] guilty plea. The
        third issue was whether [Appellant’s] sentence from April 18,
        2013[,] was legal in light of the fact that he was sentenced
        subject to mandatory minimums that Pennsylvania appellate
        courts have since ruled are unconstitutional.[3] On November
____________________________________________


2
    (See N.T. Resentencing Hearing, 4/18/13, at 3-4).
3
   See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014),
affirmed, 2016 WL 3388530, at *10 (Pa. filed June 20, 2016). There, the
Superior Court held that 42 Pa.C.S.A. § 9718 (which provides for a
(Footnote Continued Next Page)


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J-S45036-16


      10, 2015, [the] [c]ourt issued an [o]rder denying the PCRA
      [petition.] . . .

(PCRA Court Opinion, 1/22/16, at 1-2) (citation formatting provided in

footnotes). This timely appeal followed.4

      Appellant raises the following issue for our review: “Whether the [t]rial

[c]ourt erred in sentencing the Appellant to unconstitutional mandatory

sentences?”     (Appellant’s Brief, at 4).        He acknowledges that the court

sentenced him “beyond the mandatory minimum,” but nevertheless argues

that he is entitled to resentencing because the court referred to the

mandatory minimums as part of the sentence. (Id. at 8; see id. at 7 (citing

Wolfe and Alleyne, supra)). This issue does not merit relief.

      The standard of review for an order denying post-conviction
      relief is limited to whether the record supports the PCRA court’s
      determination, and whether that decision is free of legal error.
      The PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

      In Alleyne, issued on June 17, 2013, the United States Supreme

Court held that any facts that increase mandatory minimum sentences must

be submitted to jury and found beyond reasonable doubt.            See Alleyne,
                       _______________________
(Footnote Continued)

mandatory minimum sentence on specified sex crimes) was unconstitutional
under the Alleyne v. United States, 133 S.Ct. 2151 (2013), framework.
4
  Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on December 21, 2015. The
court entered an opinion on January 22, 2016. See Pa.R.A.P. 1925.



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J-S45036-16



supra at 2155. “[A] challenge to a sentence premised upon Alleyne . . .

implicates the legality of the sentence and cannot be waived on appeal.”

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc),

appeal denied, 121 A.3d 496 (Pa. 2015). “Such a claim may be raised on

direct appeal, or in a timely filed PCRA petition.” Commonwealth v. Ruiz,

131 A.3d 54, 60 (Pa. Super. 2015) (citations omitted; some emphasis

original; some emphasis added). A petitioner in a case on timely collateral

review is entitled to retroactive application of Alleyne where his “case was

still pending on direct appeal when Alleyne was handed down[.]” Id. at 59-

60 (citation and internal quotation mark omitted).

       Here, Appellant’s judgment of sentence became final on May 27,

2014,5 when his time to file a petition for allowance of appeal with the

Pennsylvania Supreme Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. §

9545(b)(3). Thus, because his case was still pending on direct review when

Alleyne was issued, he is entitled to its retroactive application, assuming

the trial court applied the mandatory minimum sentence provisions relating

to sex offenses. See Ruiz, supra at 59-60. This determination, however,

does not end our inquiry.

       Specifically, we agree with the PCRA court that Alleyne is utterly

inapplicable to the instant case because the trial court did not sentence

____________________________________________


5
 May 25, 2014 fell on Sunday of Memorial Day weekend. See 1 Pa.C.S.A. §
1908.



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J-S45036-16



Appellant pursuant to any mandatory minimum sentencing statute.         (See

PCRA Ct. Op., at 4). The trial court, mindful of Appellant’s extensive sexual

abuse of his son and mentally handicapped daughter, beginning when they

were ten years old, imposed a sentence above the mandatory minimum

provisions, within the standard range of the sentencing guidelines.     (See

id.; see also N.T. Re-sentencing, at 30-34, 58, 68-69, 76, 79, 82-86;

Bowser, supra at *2, *4).       Therefore, Appellant’s argument based on

Alleyne fails.   See Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.

Super. 2015) (stating that although mandatory minimum sentence provision

exists for defendant’s offense, sentencing court exceeded mandatory

minimum sentence when it applied standard guideline range sentence;

hence, court did not sentence defendant based on mandatory statute, and

sentence not illegal on that ground). Accordingly, we affirm the order of the

PCRA court.

     Order affirmed.




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J-S45036-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




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