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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                             :
SHAWN MITCHELL WADSWORTH,                    :         No. 1485 WDA 2016
                                             :
                           Appellant         :


                  Appeal from the PCRA Order, August 24, 2016,
               in the Court of Common Pleas of Armstrong County
                Criminal Division at No. CP-03-CR-0000218-2012


BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED JUNE 15, 2017

        Shawn Michael Wadsworth appeals pro se from the August 24, 2016

order denying his serial PCRA1 petition as untimely. After careful review, we

affirm.

        The underlying facts and early procedural history of this case were

summarized by both the PCRA court and a prior panel of this court and need

not     be   reiterated    here.       See   PCRA    opinion,   8/24/16   at    1-3;

Commonwealth          v.    Wadsworth,       104    A.3d   54   (Pa.Super.     2014)

(unpublished memorandum at 1). Appellant filed the instant pro se PCRA

petition, his fourth, on July 20, 2016. On August 2, 2016, the PCRA court

provided appellant with notice of its intention to dismiss his petition without



1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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a hearing, pursuant to Pa.R.Crim.P. 907(1). On August 8, 2016, appellant

amended his PCRA petition and filed a handwritten 9-page appendix.

Thereafter, on August 24, 2016, the PCRA court dismissed appellant’s

petition without a hearing. This appeal followed.

      The record reflects that appellant’s pro se notice of appeal was

received by the clerk of courts on September 29, 2016, 36 days after the

entry of the August 24, 2016 order dismissing his PCRA petition. Although

appellant’s notice of appeal appears to be untimely on its face, we conclude

that the prisoner mailbox rule2 applies to this case. Here, appellant’s notice

of appeal is dated September 23, 2016 and accompanied by a certificate of

mailing indicating that it was deposited with prison authorities on that date.

Accordingly, we deem the instant appeal to be timely.3

      On appeal, appellant raises the following eight issues challenging the

PCRA court’s dismissal of his serial petition as untimely:

            1.    Did the [PCRA court] commit an abuse of
                  discretion and/or error of law when it failed to

2
   Under the prisoner mailbox rule, an appeal by a pro se prisoner is deemed
filed on the date the prisoner deposits the appeal with prison authorities or
places it in a prison mailbox, though the appeal is actually received after the
deadline for filing an appeal. See Commonwealth v. Chambers, 35 A.3d
34, 38 (Pa.Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012).
3
   Although not ordered to do so, appellant filed a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b), on
September 29, 2016.        On October 6, 2016, the PCRA court filed a
Rule 1925(a) opinion wherein it references the 10-page memorandum that it
filed in support of the August 24, 2016 order dismissing appellant’s fourth
PCRA petition. (See PCRA court Rule 1925(a) opinion, 10/6/16; PCRA court
opinion, 8/24/16).


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               construe appellant’s pro se pleadings liberally
               enough to have stated the valid claim(s) upon
               which he might prevail and/or consider them to
               be filed as the legal vehicle appropriate to be
               granted relief?

          2.   Did the [PCRA court] commit an abuse of
               discretion and/or error of law when it found
               appellant’s petition, which it treated as a PCRA,
               to be untimely on its face and lacking in merit?

          3.   Did the [PCRA court] commit an abuse of
               discretion and/or error of law when it failed to
               vacate appellant’s illegal conviction with its
               inherent authority, despite the inconsistency of
               the verdict?

          4.   Did the [PCRA court] commit an abuse of
               discretion and/or error of law when it failed to
               vacate appellant’s illegal conviction with its
               inherent authority, despite the statutes of
               which he was convicted being repealed?

          5.   Did the [PCRA court] commit an abuse of
               discretion and/or error of law when it found
               that the repealed subsection of 42 Pa.C.S.[A.]
               § 9718 with which appellant was sentenced
               would not have been likewise found to be
               unconstitutional?

          6.   Did the [PCRA court] commit an abuse of
               discretion and/or error of law when it failed to
               vacate appellant’s illegal sentence with its
               inherent authority, despite the mandatory
               minimum sentencing statutes used being
               facially unconstitutional, nonseverable (sic),
               and void?

          7.   Did the [PCRA court] err by failing to exercise
               its inherent authority to correct appellant’s
               illegal conviction and sentence due to
               violations of his many significant constitutional
               rights implied but not directly cognizable?



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            8.      Is appellant legally innocent of the charges for
                    which he was found guilty and incarcerated?

Appellant’s brief at 4.

      Before we address the merits of appellant’s arguments, we must first

consider the timeliness of appellant’s PCRA petition because it implicates the

jurisdiction of this court and the PCRA court. Commonwealth v. Davis, 86

A.3d 883, 887 (Pa.Super. 2014) (citation omitted).

            To be timely, a PCRA petition must be filed within
            one year of the date that the petitioner’s judgment
            of sentence became final, unless the petition alleges
            and the petitioner proves one or more of the
            following statutory exceptions:

            (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)(1).




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Commonwealth v. Marshall, 947 A.2d 714, 719-720 (Pa. 2008) (some

citations omitted).    “[A]n untimely petition may be received when the

petition alleges, and the petitioner proves, that any of the three limited

exceptions to the time for filing the petition, set forth at [42 Pa.C.S.A.

§ 9545] are met.”     Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa.Super.

2014) (footnote omitted).

      Instantly,   appellant’s     judgment   of   sentence   became   final   on

December 8, 2012, 30 days after the trial court imposed its judgment of

sentence and the time for filing a direct appeal with this court expired. See

42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment becomes 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[]”).         Appellant’s instant PCRA

petition, his fourth, was filed on July 20, 2016 and is patently untimely,

unless one of the three statutory exceptions to the PCRA’s one-year

jurisdictional time-bar applies.

      The crux of appellant’s arguments on appeal is that the PCRA court

erred in denying his petition as untimely because his sentence violated

Alleyne v. United States,            U.S.     , 133 S.Ct. 2151 (2013), and this

court’s subsequent decision in Commonwealth v. Wolfe, 106 A.3d 800

(Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016). (Appellant’s brief at

16-18.) Appellant further posits that Alleyne and its progeny announced a



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new     constitutional   right   under   Section   9545(b)(1)(iii)   that   applies

retroactively. (Id. at 19-24.)

        In Alleyne, the United States Supreme Court held that the Sixth

Amendment requires 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.”        Alleyne, 133 S.Ct. at 2155 (citation omitted).

Thereafter, in Wolfe, a panel of this court held that the version of

mandatory minimum sentencing provisions set forth in 42 Pa.C.S.A. § 9718

that were in effect from January 1, 2007 until August 17, 2014, were

unconstitutional in their entirety in light of Alleyne and subsequent

decisions by this court.         Wolfe, 106 A.3d at 806, citing, inter alia,

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014), appeal

denied, 121 A.3d 496 (Pa. 2015) (en banc).             Appellant maintains that

because Section 9718 was invalidated by Alleyne, he is entitled to be

resentenced without the application of any mandatory minimum sentencing

provisions. (Appellant’s brief at 16-24.) We disagree.

        Instantly, appellant was sentenced on November 8, 2012, to an

aggregate term of 5 to 10 years’ imprisonment imposed after a jury found

him guilty of two counts of failure to comply with registration of sexual

offenders requirements.4 Alleyne, in turn, was decided on June 17, 2013.

Contrary to appellant’s contention, this court has expressly rejected the


4
    18 Pa.C.S.A. § 4915(a)(1) and (a)(3), respectively.


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notion that Alleyne applies retroactively to cases on collateral review. See

Commonwealth v. Washington, 142 A.3d 810, 814-815 (Pa. 2016)

(holding that the Alleyne decision does not apply retroactively to collateral

attacks     upon   mandatory    minimum        sentences    advanced     in   PCRA

proceedings). Accordingly, we agree with the PCRA court that Alleyne and

its progeny do not apply retroactively to the instant matter, which was

already at the PCRA review stage at the time Alleyne was decided.

Additionally, the record further reflects that appellant was not sentenced to

the mandatory minimum sentencing provisions set forth in Section 9718.

Rather, appellant was sentenced pursuant to the now-repealed 42 Pa.C.S.A.

§ 9718.3(a)(1)(iii) and (iv).    Accordingly, appellant’s claim in this regard

warrants no relief.

       Lastly, even if any of remaining claims set forth in appellant’s brief

met the underlying requirements of Section 9545(b)(1), he still would not be

entitled to any relief. (See appellant’s brief at 11-16, 24-29.) Appellant has

failed to demonstrate that he raised any of his claims within 60 days of the

date      the   claim   could   have    been       presented,    as   required    by

Section 9545(b)(2). To fulfill the 60-day requirement, appellant needed to

file his petition within 60 days from the date Alleyne was decided.              See

Commonwealth v. Brandon,               51   A.3d    231,   235   (Pa.Super.   2012)

(concluding that, “the sixty-day period begins to run upon the date of the

underlying judicial decision[,]” not the date appellant became aware of the



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decision). As noted, the Supreme Court’s decision in Alleyne was filed on

June 17, 2013, and appellant first raised an Alleyne issue in his untimely

third petition filed on October 17, 2014. Appellant’s instant PCRA petition, in

turn, was filed 21 months later on July 20, 2016. Thus, appellant’s petition

is untimely on this basis as well.

      Accordingly, we find no error on the part of the PCRA court in

dismissing appellant’s fourth petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2017




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