J.S23043/16

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

COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
: v. : : WILLIAM P. D’AGOSTIN O, : : 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 Act 1 (“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

timel y 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. There fore, 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

# ( 8)

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 {' 1 PCRAn), 42 N l .:

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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 OCTOBER 30, 2015 CARPENTER 

### J. OPINION 2940 EDA 2015 WILLIAM D' AGOSTINO 

# v. CP-46-CR-0004405-1998 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF MONTGOl'vlERY COUNTY PENNSYLVANIA CRIMINAL DIVISION

I• • · 0) Circulated 02/16/2016 02:33 PM2

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 prope r 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 a3

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 o n June 15, 2015, held that the mandatory minimum statute that he because Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which was 

### e n 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 Al l eyne is not retroactive in the PCRA con text. I. 

### ISSUE

U c \ ' 

### c o5

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 f H 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



### co6



### 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 7 1 

### 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-, 0 )7

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 

### e n 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)).8 

# 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. 0 )9

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 ( } ) 

### o f tl ; : r