J.S23043/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

WILLIAM P. D’AGOSTINO, :

:

Appellant :

: No. 2940 EDA 2015

Appeal from the PCRA Order September 9, 2015

in the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0004405-1998

BEFORE: PANELLA, OTT, and FITZGERALD,*JJ.

JUDGMENT ORDER BY FITZGERALD, J.: FILED MARCH 04, 2016

Appellant, William P. D’Agostino, appeals pro se from the dismissal of 

his fifth Post Conviction Relief Act1(“PCRA”) petition. Appellant claims that 

his mandatory minimum sentence, which became final in May 2000, is illegal 

in light of Alleyne v. United States, 133 S. Ct. 2151 (2013), and that he 

timely filed the instant petition within sixty days of a previously unknown 

fact, i.e., the decision in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 

2015). The PCRA court has ably addressed the issues regarding the 

timeliness of the instant PCRA petition. Therefore, we affirm on the basis of 

that court’s opinion and need only reiterate that judicial decisions are not 

new facts for the purposes of establishing an exception to the PCRA time-bar 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. 
J.S23043/16 

- 2 -

under 42 Pa.C.S. § 9545(b)(1)(ii). See Commonwealth v. Cintora, 69 

A.3d 759, 763 (Pa. Super. 2013).

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/4/2016
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sexual intercourse, related to sexual contact between 1992 and 1994 with a 14- 

Appellant entered into an open guilty plea to four counts of involuntary deviate 

By way of a brief background of this case, on February 16, 2000, 

of the claims raised therein. 

this Court concluded that it lacked jurisdiction to reach the underlying merits 

v. U.S. does not retroactively apply to post-conviction proceedings. Therefore, 

pursuant to Section 9545(b)(iii), as alleged in his PCRA petition because Alleyne 

failed qualify for the newly recognized constitutional right time-bar exception 

Pa.C.S.A. §§ 9541 - 9546. Specifically, this Court determined that Appellant 

seeking post-conviction relief under the Post-Conviction Relief Act {'1PCRAn), 42 

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dismissal dated September 9, 2015, dismissing his untimely fifth petition 

Appellant, vVilliam D'Agostino, appeals from the final order of 

FACTUAL AND PROCEDURAL HISTORY 

CARPENTER J. OCTOBER 30, 2015 

OPINION 

WILLIAM D' AGOSTINO 2940 EDA 2015 

v. 

COMMONWEALTH OF PENNSYLVANIA CP-46-CR-0004405-1998 

IN THE COURT OF COMMON PLEAS OF MONTGOl'vlERY COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION 

I••· 

0) 

Circulated 02/16/2016 02:33 PM
2 

Commonwealth v. Twner, 544 A.2d 927 (Pas. 1988); Commonwealth v. Finley, 550 A.2d 

213 (Pa.Super. 1988) (en bane). 

January 4, 2007. Appellant appealed to our Superior Court and on July 29, 

2007, and the dismissal of the third PCRA petition was upheld. 

December 14, 2006, which was followed by a final order of dismissal on 

petition. Pursuant to Pa.R.Crim.P. 907, a pre-dismissal notice was issued on 

OnNovember 24, 2006, Appellant filed an untimely third PCRA 

the dismissal of Appellant's second PCRA petition. 

to our Superior Court, and on September 11, 2006, our Superior Court affirmed 

final notice of dismissal was entered on February 1, 2006. Appellant appealed 

untimely and without merit. Pre-dismissal notice was provided, and thereafter a 

petition. Counsel was again appointed, and counsel determined that it was 

On November 7, 2005, Appellant filed an untimely second PCRA 

petition for allowance of appeal on November 27, 2002. 

dismissal of Appellant's PCRA petition. Our Supreme Court denied Appellant's 

pre-dismissal notice as set forth in Pa.R.Crim.P. 907, a final order of dismissal 

was issued on June 7, 2001. On May 21, 2002, our Superior Court affirmed the 

merit letter was filed pursuant to the dictates of Tuner/Finley1. After proper 

Counsel was appointed, and at the conclusion of PCRA counsel's review a no 

On April 6, 2001, Appellant filed a timely prose PCRA petition. 

term of 10 to 20 years' imprisonment. A direct appeal was not filed. 

year-old victim. Appellant was subsequently sentenced on April 6, 2000, to a 
3 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant has complied. 

issued an order directing Appellant to file a concise statement of errors 

In response to Appellant's timely notice of appeal, this Court 

presently appeals. 

9, 2015, this Court issued a final order of dismissal from which Appellant 

that a court always has jurisdiction to correct an illegal sentence. On September 

dismissal notice, asserting that this Court had misinterpreted his claim and 

On September 3, 2015, Appellant filed a response to the preheld not to apply retroactively in the PCRA context. 

Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), Alleyne has been 

petition because no timeliness exceptions applied, and specifically, under 

Appellant notice of this Court's intention to dismiss his untimely serial PCRA 

Alleyne. On August 19, 2015, a pre-dismissal notice was issued, giving 

was sentenced under, 42 Pa.CS.A. §9718, to be unconstitutional in light of 

decided on June 15, 2015, held that the mandatory minimum statute that he 

because Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which was 

en petition was timely under the newly recognized constitutional right exception 

currently at issue in this appeal. Therein, Appellant asserted that his fifth PCRA 

On August 14, 2015, Appellant filed a fifth PCRA petition, which is 

dismissal followed on July 16, 2012. Appellant did not appeal. 

Again, a pre-dismissal notice was issued on June 26, 2012. A final order of 

On May 11, 2012, Appellant filed an untimely fourth PCRA petition. 
4 

Accordingly, Appellant may not have even been sentenced under the mandatory 

sentenced to five to 10 years' imprisonment, concurrent to count 1. Id. at 84. 

imprisonment, consecutive to count 2. Finally on count four, Appellant was 

1. On the third count, Appellant was sentenced to a term of five to 10 years' 

Appellant was sentenced to five to 10 years' imprisonment, concurrent to count 

first count of involuntary deviate sexual intercourse. On the second count, 

Ultimately, Appellant was sentenced to seven to 20 years' imprisonment on the 

offenses carry mandatory minimums of five years imprisonment." Id. at 83. 

sentencing guideline ranges. Id. However, later the court stated "[alll four 

guidelines." (Sentencing 4/6/2000 p, 82). The court went on to delineate the 

here, due to the time that the crimes were committed, are the older set of 

sentencing, the sentencing court stated, "Itlhe sentencing guidelines applicable 

than in the aggravated range of the sentencing guidelines. At the time of 

sentenced pursuant to the mandatory minimum at 42 Pa.CS.A. §9718, rather 

notice to seek mandatory minimum sentence, it is unclear that Appellant was 

Initially, this Court notes that while the Commonwealth did file a 

This Court properly dismissed this fifth PCRA as untimely, when 

Appellant's claim did not qualify under the newly recognized 

constitutional right time-bar exception because Alleyne is not retroactive 

in the PCRA context. 

I. 

DISCUSSION 

Whether this Court properly dismissed this fifth PCRA as untimely, when 

Appellanfs claim did not qualify under the newly recognized 

constitutional right time-bar exception because Alleyne is not retroactive 

in the PCRA con text. 

I. 

ISSUE 

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Pa.CS.A. §9545(b)(l). A judgment of sentence becomes final at the conclusion 

be filed within one year of the date the judgment of sentence becomes final. 42 

Any PCRA petition, including a second and subsequent one, must 

(quoting Commonwealth v. Perrin, 94 7 A.2d 1284, 1285 (Pa.Super. 2008)) 

petition." Commonwealth v. Tackson, 30 A.3d 516, 519 (Pa.Super. 2011) 

courts are without jurisdiction to consider the merits of the 

proven, the petition must be dismissed without a hearing because Pennsylvania 

petition is determined to be untimely, and no exception has been pled and 

(quoting Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)). uu the 

time limits go to a court's right or competency to adjudicate a controversy." Id. 

Commonwealth v. Robinson. 12 A.3d 477, 479 (Pa.Super. 2011). "Iunsdicrional 

The timeliness of a PCRA petition is a jurisdictional requisite. 

record. Id. 

not be disturbed unless there is no support for those findings in the certified 

The trial court's findings with regard to the timeliness of a PCRA petition will 

legal error. Commonwealth v. Williamson, 21 A.3d 236, 240 (Pa.Super. 2011). 

decision of the trial court is supported by the evidence of record and is free of 

fH dismissing a PCRA petition on timeliness grounds, determines whether the 

Our appellate court, when reviewing the propriety of an order 

fail as explained below. 

unconstitutional sentencing scheme, Appellant's claim of timeliness must also 

basis. However, even assuming Appellant was sentenced under the now 

minimum sentencing scheme, and his current Alleyne claim must fail on that 

co 
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power to address the substantive merits of a petitioner's PCRA claims." 

the date that the claim could have been first brought, the trial court has no 

exceptions, or entitled to one of the exceptions, but not filed within 60 days of 

expiration of direct review, or not eligible for one of the three limited 

"As such, when a PCRA petition is not filed within one year of the 

Marshall, 596 Pa. 58 71 94 7 A.2d 714, 720 (2008). 

obtained earlier, despite the exercise of due diligence. Commonwealth v. 

to plead and prove that the information on which he relies could not have been 

been presented. 42 Pa.CS.A. §954S(b)(2). The 60-day rule requires a petitioner 

exceptions must be filed within sixty days of the date that the claim could have 

retroactively. 42 Pa.CS.A. §9545(b)(l)(i)·(iii). A petition alleging one of these 

petitioner's case was decided and the right has been upheld to apply 

Court or the Pennsylvania Supreme Court as a constitutional right after the 

diligence or (3) the right asserted was recognized by the United States Supreme 

were unknown to the petitioner and could not have been discovered with due 

interference of government officials; (2) the claims is predicated on facts that 

must prove that (1) the failure to raise the claim earlier was due to the 

I\:, of a petition. To invoke an exception. a petition must allege and the petitioner 

of the PCRA, which provide very limited circumstances to excuse the late filing 

There are three statutory exceptions to the timeliness requirements 

§9545(b)(3). 

of direct review, or when the time for seeking such review expires. 42 Pa.CS.A. 

, ... ,11-, 

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This Court notes that in the recent case of Commonwealth v. Riggle, 119 A.3d 1058 

(Pa.Super, 2015), the Pennsylvania Superior Court held that the U.S. Supreme Court's holding in 

Alleyne v. U.S. was not entitled to retroactive effect on post-conviction review since the new rule 

set forth in Alleyne was not substantive and did not constitute a watershed procedural rule. 

Subsection (iii) of Section 9545[ (b)(l)] has two 

requirements. First, it provides 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 provided in this 

section. Second, it provides that the right "has been 

held" by "that court" to apply retroactively. Thus, a 

petitioner must prove that there is a "new" 

constitutional right and that the right "has been held" 

by that court to apply retroactively. The language "has 

as follows: 

Alleyne. First, the Miller Court set forth the requirements under this exception 

untimely PCRA petition can be saved under Section 954S(b)(l)(iii) based on 

Miller, 102 A.3d 988 (Pa.Super. 2014) addressed this issue of whether an 

Supreme Court, thus, this claim must fail.2 In fact, the case of Commonwealth v. 

proceedings by either the United States Supreme Court or the Pennsylvania 

Alleyne has not been held to apply retroactively to post-conviction 

for a review of the underlying merits. 

9545(b)(l)(iii), applies, making this a timely petition, establishing jurisdiction 

en newly recognized constitutional right timeliness exception, Section 

judgment of sentence became final. Rather, the issue raised is whether the 

facially untimely, i.e., that it was filed more than a year after Appellant's 

In this case, there is no dispute that this fifth PCRA petition is 

Commonwealth v. Robinsonl 12 A.3d 477, 479 (Pa.Super. 2011) (quoting 

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)). 
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m~~~~ 

COURT OF COMMON PLEAS 

MONTGOMERY COUNTY 

PENNSYLVANIA 

3ST" JUDICIAL DISTRICT 

BY THE COURT: 

be affirmed. 

September 9, 2015, dismissing Appellant's untimely fifth PCRA petition should 

Based on the foregoing analysis, the final order of dismissal dated 

CONCLUSION 

reaching the merits of the underlying issue. 

PCRA petition was untimely filed, and it was properly dismissed without 

this timeliness exception to the time-bar requirements of the PCRA. This fifth 

timeliness exception, Id. at 995. Accordingly, Appellant cannot avail himself of 

that Alleyne applied retroactively) that decision could not qualify as a 

United States Supreme Court nor the Pennsylvania Supreme Court, announced 

Miller, 102 A.3d 988 at 994. The Miller Court opined that because neither the 

been held" is in the past tense. These words mean that 

the action has already occurred, i.e., "that court" has 

already held the new constitutional right to be 

retroactive to cases on collateral review. By employing 

the past tense in writing this provision, the legislature 

clearly intended that the right was already recognized 

at the time the petition was filed. 

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By First Class Mail to: 

William D'Agostino #EF3714 

SCI Rockview 

Box A 

Bellefonte, PA 16823 

Copies sent on October 30, 2015 

By Interoffice Mail to: 

Anne Schools, Court Administration 

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