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

v.
RICHARD LOUIS ALVINO, JR.

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 791 WDA 2019 Appeal from the PCRA Order Entered April 26, 2019 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP

- 02

- CR

- 0005030

- 2000, CP

- 02

- CR

- 0010576

- 1998

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J. MEMORANDUM BY McCAFFERY, J.: FILED MARCH 2, 2020 Richard Louis Alvino, Jr. (Appellant) appeals pro se from the order entered in the Allegheny County Court of Common Pleas , denying his second
Post

- Conviction Relief Act 1 (PCRA ) petition as untimely filed

. 2 Appellant , who received mandatory minimum sentences under 42 Pa.C.S. § 9718(a)(1) ( sentences for offenses against infant persons ), avers he has established relief under the “ new constitutional right ” timeliness exception of the PCRA. We affirm

. In 1998, Appellant was charged in both Allegheny County and Butler

_________________ __________ ______ ____ _______ 1 42 Pa.C.S. §§ 9541

- 9546.

2 Following one extension of time granted by this Court, Appellant filed his brief two day s late. However, the Commonwealth has not objected. See Pa.R.A.P. 21 88 (if appellant fails to file brief within time prescribed by these rules, or within the time as extended, appellee may move for dismissal).J

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County with a combined 25 counts related to his sexual abuse of his minor child. The Allegheny County charges were docketed at CP

- 02

- CR

- 00105 76

- 1998 (Docket 98

- 10576). On March 27, 2000, the Butler County Court of Common Pleas transferred its case to the Allegheny County Court of Common Pleas (trial court) and ordered it to be consolidated with the pending Allegheny County charges. 3 The Butle r County matter was then assigned a new docket number, CP

- 02

- CR

- 0005030

- 2000 (Docket 00

- 5030 )

. On August 28, 2000, Appellant appeared before the trial court and pleaded guilty , but mentally ill , at both dockets . O n April 26, 2001, the trial court imposed sentence s at both docket s , of an aggregate term of 281⁄2 to 57
years ’ imprisonment, to be followed by 55 years ’ probation. Pertinently, t he
sentence s included five mandatory terms for of fenses committed against minors, pur suant to 42 Pa.C.S. § 9718(a) (1). 4 Appellant took a timely direct appeal. T his Court affirmed his judgment s of sentence at both dockets on May 22, 2002 , and the Pennsylvania Supreme Court denied allowance of appeal on December 30, 2002

. Commonwealth

_________________ __________ ______ ____ _______ 3 The Butler County court ’ s transfer order appears in the certified record for Docket 00

- 5030, as the 16 th page of the filing entered as

“ DJ_Criminal_Complaint. ”

4 The Section 9718(a)(1) five

- year mandatory term was imposed on these counts: (1) two counts of involuntary deviate sexual intercourse (IDSI), 18 Pa.C.S. § 3123(a)(1), at Docket 98

- 10576; (2) two counts of IDSI, 18 Pa.C.S. § 3123( a)(1), at Docket 00

- 5030; and (3) one count of rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1) at Docket 00

- 5030. Each of these five mandatory terms were to run consecutively.J

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v. Alvino , 1247 WDA 2001 (unpub. memo.) (Pa. Super. May 22, 2002), appeal denied , 321 WAL 2002 (Dec. 30, 2002)

. On January 5, 2004, Appellant filed a pro se PCRA petition. After appointing counsel to represent Appellant, the PCRA dismissed Appellant ’ s petition on May 3, 2004. More than 14 year s later, on January 29, 2019, Appellant filed the underlying PCRA petition, pro se , claiming his Section § 9718 mandatory
minimum sentences were illegal under Commonwealth v. Wolfe , 140 A.3d 651 (Pa. 2016) ( invalidating 42 Pa.C.S. § 9718(a) (1) pursuant to Alleyne v. United States , 570 U.S. 99 (2013)) , 5 and Commonwealth v. Resto , 179 A.3d 18 (Pa. 2018) (plurality) ( holding 42 Pa.C.S. § 9718(a)(1) (3) does not run afoul of Alleyne ). The PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing. The court f ound Appellant ’ s petition was untimely, where the Pennsylvania Supreme Court has not held Alleyne

— upon which Wolfe relie d

— applies retroactively to satisfy any of the 42 Pa.C.S. § 9545(b)(1) PCRA timeliness e xceptions. A ppellant filed a response, but the PCRA court dismissed Appellant ’ s petition on Ap ril 26, 2019. We note

_________________ __________ ______ ____ _______ 5 In Alleyne , the High Court “ held that any fact that, by law, increases t he penalty for a crime must be treated as an element of the offense, submitted to a jury rather than a judge, and found beyond a reasonable doubt. ” Wolfe , 140 A.3d at 653.J

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Appellant ’ s petition, the court ’ s Rule 907 notice, and the court ’ s dismissal order were each a single document that listed both trial docket numbers. Appellant ’ s single, timely notice of appeal similarly listed both docket numbers. 6
On June 24, 2019, this Court issued a per curiam order, directing Appellant to show cause why his appeal should not be quashed pursuant to Commonwealth v. W alker , 185 A.3d 969 (Pa. 2018) (where order resolves issues arising on more than one docket , proper practice under Pa.R.A.P. 34 1(a) is to file separate appeals; failure to do so requires quash al of appeal). Appellant responded that, inter alia , because th e trial court consolidated the
two dockets in 2000, this case falls “ within the exception ” in Walker and Commonwealth v. Shreffler , 201 A.3d 757 (Pa. Super. 2018)

. Appellant ’ s Response to Order to Show Cause, 7/8/19, at 2

- 4 . This Court discharged the rul e to show cause but advised Appellant the merits panel may revisit this
issue. Appellant presents three issues for our review:
I

. When . . . Appellant filed a single Notice of Appeal with Two (2) lower court docket numbers, was Quashal required[?] II. Whe ther the PCRA Court erred when it denied Appellant ’ s PCRA Petition because the Pennsylvania Supreme Court has never specifically held that Commonwealth v. Resto , 179 A.3d 18 (Pa. 2018) was retroactive, when Tyler v. Cain , 533 U.S. 652

_________________ __________ ______ ____ _______ 6 Appellant complied with the PCRA court ’ s order to file a Pa.R.A.P. 1925(b) sta tement of errors complained of on appeal.J

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(2001) [,] holds multiple holdings can render a new rule retroactive if the holdings in those cases ne cessarily dictate retroactively[?] III. Whether Commonwealth v. Resto is retroactive applying this holding? Appellant ’ s Brief at 1

- 2. Appellant first contends this Court should not quash t his appeal due to his filing of a single notice of appeal. In support, he cites Commonwealth v. Stansbury , 219 A.3d 157 (Pa. Super. 2019), pet. allocator pending , 656 EAL 2019, and avers “ identical circumstances ” were presented in this case

. 7 Appellant ’ s Brief at 7. We first note that in Walker , our Supreme Court held Pa.R.A.P. 341(a)

“ require [s] that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal. ” Walker , 185 A.3d at 977. In Shreffler , this Court stated, in a footnote, that quashal was not appropriate under Walker , although the appellant filed a single notice of appeal, because the appellant ’ s two criminal matters were previously consolidated. Shreffler ,

_________________ __________ ______ ____ _______ 7 In his brief, Appellant has abandoned the arguments previously raised in his response to this Court ’ s rule to show cause, and instead presents a new legal theory. Nevertheless, where the issue of quashal goes t o this Court ’ s jurisdiction, we may sua sponte consider any relevant legal authority. See Commonwealth v. Gaines , 127 A.3d 15, 17 (Pa. Super. 2015) ( en banc ) ( “ We may raise issues concerning our appellate jurisdiction sua sponte

. ” ).J

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201 A.3d at 760 n.8 , 761 n.12. Similarly, in this case, the But ler County court ordered the Butler County charges to be transferred to Allegheny County and “ consolidated ” with t he Allegheny County charges . Thus, quashal is not appropriate. 8 See Shreffler , 201 A.3d at 760 n.8, 761 n.12.
In his last two issues, Appellant claims the PCRA court erred in dismissing his PCRA petition as untimely. It is undisputed Appellant ’ s January 29, 2019, PCRA petition was filed beyond the general one

- year PCRA filing period. 9 We thus consider his claim that he met the exception at Section

_________________ __________ ______ ____ _______ 8 Although the Butler County court ordered the Docket 00

- 5030 charges to be transferred to Allegheny County and to be “ consolidated ” with Docket 98

- 10576, there is no order or formal acknowledgement by the Allegheny County court that it was consolidating the two cases. Nevertheless, even if the two cases were not consolidated, we would agree with Appellant ’ s argument on appeal that Stansbury applies

. In Stansbury , the PCRA court ’ s order listed two case docket numbers, but erroneously advised the petitione r he had thirty days “ to file a written notice of appeal to the Superior Court. ” Stansbury , 219 A.3d at 159. This Court declined to quash the appeal under Walker , concluding the PCRA court ’ s misinformation “ amount [ed] to a breakdown in court operations s uch that we may overlook the defective nature of [the] timely notice of appeal

. ” Id. at 160. Here, the PCRA court ’ s order likewise advised: “ [Appellant] has the right to appeal this Court ’ s denial of his PCRA Petition to the Superior Court but must do so by filing a Notice of Appeal within thirty (30) days. ” Order, 4/26/19. See Stansbury , 219 A.3d at 159. Such incorrect advisement would constitute a “ breakdown in court operations ” excusing any Pa.R.A.P. 341(a) violation.

9 On direct appeal, after the Pennsylvania Supreme Court denied Appellant ’ s petition for allowance of appeal on December 30, 2002, he had 90 days, or until Monday, March 31, 2003, to seek certiorari with the United StatesJ

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9545(b)(1)(iii), which provides an otherwise untimely petition may be reviewed when the petition alleges a nd the petitioner proves that

. . . 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. See 42 Pa.C.S. § 9545 (b)(1)(iii). We note, “ [t] he timeliness requirement for PCRA petitions ‘ is mandatory and jurisdictional in nature[.] ’” Commonwealth v. Montgomery , 181 A.3d 359 , 365 (Pa. Super. 2018) ( en banc ) (citation omitted)

. Although Appellant ’ s PCRA petition cited both Wolfe and Resto to satisfy the PCRA ’ s time exception at 42 Pa.C.S. § 9543(b)(1)(iii), on appeal he relies solely on Resto . Appellant avers that Resto announced a “ new constitutional right . . . not to be sentenced under the mandatory minimum sentences required [Section] 9718(a)(1), ” and that his petition was filed within one year of the Resto decision . Appellant ’ s Brief at 8. He further avers

_________________ __________ ______ ____ _______ Supreme Court. See U.S. Sup. Ct. R . 13 ; see also 1 Pa.C.S. § 1908 (when last day of any period of time referred to in any statute falls on Sunday, such day shall be omitted from computation) . Appellant did not seek certiorari , and thus his judgment of sentence became final for PCRA purpos es on that day. See 42 Pa.C.S. § 9545(b)(3) (j udgment becomes final at conclusion of direct review, including discretionary review in the Supreme Court of the United States, or at expiration of time for seeking such review ). Appellant then generally had one year, until March 31, 2004, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (any petition, including a second or subsequent petition, shall be filed within one year of the date judgment becomes final). As stated above, the instant petition was f iled in 2019.J

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th is Resto right applies retroactively , pursuant to Teague v. Lane , 489 U.S. 288 (1989) (plurality) , which Appellant summarizes allow ed multiple decisions to collectively “ render a new rule retroactive if the holdings in those cases necessarily dictate retroactivity of the new rule. ” Id. at 9. Appellant f urther avers that Teague held “ a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law

- making authority to proscribe. ” Id. at 9

- 10. We disagree. In 2001, Appellant ’ s mandatory five

- year minimum sentences were imposed pursuant to a former version of S ub s ection 9718(a) (1) , which was virtually identical to the latest version ( save for the newer, longer man d atory term of ten years )

. Resto , however, addressed Subsection 9718(a) (3) and is thus not applicable in this case. 10 Additionally, the opinion announcing the judgment of the Court in Resto stated Subsection 9718(a)(3) did not implicate Alleyne , as it “ require[d] no proof of any predicate or aggravating facts. ” Resto , 179 A.3d at 20

- 21. Accordingly, even if Appellant were sentenced under Subsection 9718(a)(3), Resto would provide not provide the relief requested. While Appellant has abandoned his PCRA petition claim citing Wolfe , we note no relief would be due under that decision as well. The PCRA court

_________________ __________ ______ ____ _______ 10 We further note that when Appellant was sentenced, there was no S ubs ection 9718(a) (3); that s ubsection was not added until 2004. See Act 2004

- 217 (S.B. 1099), P.L. 1703, § 4.J

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correctly pointed out that Wolfe invalidated Subs ection 9718(a)(1) pursuant
to Alleyne , but the Pennsylvania Supreme Court has held Alleyne does not apply retroactively to cases pending on PCRA review. 11 PCRA Ct. Noti ce of Intention to Dismiss, 3/5/19, at 1

- 2, citing Commonwealth v. Washington , 142 A.3d 810, 820 (Pa. 2016). We agree with the PCRA court that Appellant has not established his PCRA petition was timely filed under the Sub section 9545(b)(1)(iii) “ new consti tutional right ” exception. Accordingly, we affirm the order dismissing Appellant ’ s petition. Order affirmed.

Judge Musmanno joins the memorandum. Judge Olson concurs in the result.

_________________ __________ ______ ____ _______ 11 Although Wolfe analyzed a later version of Sub section 9718(a)(1), the dispositive language found to be unconstitutional was also present in the 2001 version of the statute , under which Appellant was sentenced

. See Wolfe , 140 A.3d at 665.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/2/2020