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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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(unpublished memorandum at 1).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 rule2applies 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