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

v.

DAVID R. MCGINLEY

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

PENNSYLVANIA

No. 1940 MDA 2016 Appeal from the PCRA Order October 27, 2016 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP

- 22

- CR

- 0001634

- 1994

BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J. * MEMORANDUM BY OTT, J.: FILED JUNE 06, 2017 David R. McGinley appeals pro se from the order entered in the Dauphin County Court of Common Pleas, dismissing his serial Post Conviction Relief Act (“PCRA”) petition, 42 Pa.C.S. §§ 9541

- 9546. McGinley seeks relief from the judgmen t of sentence of 10 to 30 years’ imprisonment, imposed after he was found guilty by a jury of involuntary deviate sexual intercourse (ISDI), aggravated indecent assault, indecent assault, indecent exposure, and corruption of minors. 1 , 2 Based upon the fol lowing, we affirm.

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* Retired Senior Judge as signed to the Superior Court.

1 18 Pa.C.S. §§ 3123(5), 3125(6), 3126(a)(6), 3127, and 6301, respectively.

2 McGinley was sentenced as follows: for IDSI , 7 to 20 years’ imprisonment; for aggravated indecent assault, 3 to 10 years’ imprisonment; for indecent assault, 6 to 24 months’ imprisonment; for indecent exposure, 6 to 12 (Footnote Continued Next Page)J

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The facts supporting McGinley’s convictions are set forth in this Court’s decision affirming the judgment of sentence. See Commonwealth v. McGinley , 695 A.2d 438 (Pa. Super. 1997) (unpublished memorandum), appeal denied , 698 A.2d 65 (Pa. 1997). A detailed recitation of the procedural history of this case is set forth in this Court’s decision affirming the denial of McGinley’s previous PCRA petition. See Commonwealth v. McGinley , 134 A.3d 108 (Pa. Super. 2015) (unpublished memorandum),
ap peal denied , ___ A.3d ___ (Pa. filed Sept. 23, 2016). Procedurally, it is important to note that the instant pro se petition was filed on August 2, 2016, while McGinley’s petition for allowance of appeal regarding his previous PCRA petition was pending i n our Supreme Court. See Commonwealth v. Lark , 746 A.2d 585 (2000) (holding court has no jurisdiction to review subsequent PCRA petition that is filed while appeal from previous PCRA petition is still pending ). However, the PCRA court ruled on the presen t petition after the denial of the petition for allowance of appeal. The instant PCRA petition is facially untimely, and cannot be reviewed unless McGinley pleads and proves a statutory exception to the PCRA time (Footnote Continued)

_______________________ months’ imprisonment; and for corruption of minors, 12 to 24 months’ imprisonmen t. All sentences were made to run concurrently except for that resulting from the IDSI conviction, which was to run consecutive to the remaining sentences. Thus, the aggregate sentence was 10 to 30 years’ imprisonment.J

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bar. 42 Pa.C.S. § 9545(b)(1)(i

- iii). An y petition invoking one of these exceptions must be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2). Here, McGinley asserts that he received a mandatory minimum sentence for IDSI, and that his sentence is th erefore illegal pursuant to Commonwealth v. Wolfe , 140 A.3d 651 (Pa. June 20, 2016) (holding 42 Pa.C.S. § 9718, the statute providing a mandatory minimum sentence for IDSI crimes, is unconstitutional under Alleyne v. United States , 133 S. Ct. 2151 (2013)). As such, McGinley’s claim implicates the PCRA exception that requires a petitioner to plead and prove “ 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. § 9545(b)(1)(iii). However, the Wolfe Court did not recognize a new constitutional right, let alone hold that any such right applied retroactively; rather, Wolfe merely applied Alleyne on direct appeal to hold Section 9718 was unconstitutional.
Furt hermore, our Supreme Court has held that Alleyne itself does not apply retroactively to cases on collateral review where the petitioner’s judgment of sentence has become final. Commonwealth v. Washington , 142 A.3d 810, 820 (Pa. 2016). Therefore, McGinley’s citation to Wolfe does not establish the PCRA exception for a new retroactive constitutional right, 42 Pa.C.S. § 9545(b)(1)(iii).J

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In short, because the present petition is patently untimely and does not satisfy any PCRA statutory exception, the PCRA cour t properly dismissed the petition. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/6/2017