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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

:

DEAN LEROY CUSTER, : No. 803 WDA 2018

:

 Appellant :

Appeal from the PCRA Order, April 17, 2018,

in the Court of Common Pleas of Mercer County

Criminal Division at No. CP-43-CR-0001279-2003

BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 1, 2018

Dean Leroy Custer appeals pro se from the order filed in the Court of 

Common Pleas of Mercer County that dismissed his petition filed pursuant to 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After 

careful review, we affirm.

The procedural history as set forth by a previous panel of this court is 

as follows: 

On May 12, 2004, [a]ppellant was convicted of 

numerous counts of rape, involuntary deviate sexual 

intercourse (IDSI), and other related sexual assault 

charges.[

1] On October 28, 2004, [a]ppellant was 

sentenced to thirty to sixty years’ imprisonment to 

be followed by sixty years’ probation. This Court 

affirmed the judgment of sentence and our state 

 

1 18 Pa.C.S.A. §§ 3121(a)(1), 3121(a)(2), 3121(a)(6), 3123(a)(1), 

3123(a)(2), now 3123(b), and 3123(a)(7), respectively.
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Supreme Court denied [a]ppellant’s petition for 

allowance of appeal on September 12, 2006.

Commonwealth v. Custer, 169 A.3d 1175 (Pa.Super. 2017) (Unpublished 

memorandum) at 1.

Appellant filed three prior PCRA petitions that were denied. In the 

third petition, this court affirmed the denial as the petition was untimely and 

did not qualify under any of the exceptions to timeliness because Alleyne v. 

United States, 570 U.S. 99 (2013) does not apply retroactively to cases on 

collateral review. Custer at 2, 5-6.

While appellant’s third PCRA petition was on appeal to this court, 

appellant filed a fourth PCRA petition on November 7, 2016. Appellant 

conceded that his petition was untimely but alleged that his petition met an 

exception to the timeliness requirement because the Supreme Court of 

Pennsylvania and this court had ruled that mandatory sentencing was 

unconstitutional and that these cases were previously unknown to him.

On November 10, 2016, the PCRA court stayed action on the fourth

petition until this court ruled on appellant’s appeal from his third PCRA 

petition. On December 7, 2017, the PCRA court lifted the stay after this 

court affirmed the dismissal of the third PCRA petition and our supreme 

court denied appellant’s petition for allowance of appeal. Commonwealth 

v. Custer, 170 A.3d 1010 (Pa. 2017). 

On March 26, 2018, the PCRA court informed appellant of its intent to 

dismiss the PCRA petition. On April 9, 2018, appellant filed an amended 
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petition and alleged that he satisfied “one and/or two” of the exceptions to 

the PCRA time-bar. (Amended Petition, 4/9/18 at 3.) By order dated 

April 17, 2018, the PCRA court dismissed the PCRA petition.

On May 3, 2018, appellant filed a notice of appeal. On June 13, 2018, 

the trial court issued an order that stated that it was not filing an additional 

opinion and referred to the order dated April 17, 2018.

Appellant raises the following issues for this court’s review:

1. Whether [the PCRA] court arred [sic] by 

sentencing [appellant] to illegal mandatory 

minimum sentences of 30-60 [years] of 

incarceration. Then imposed a second illegal 

sentence of 60 [years] of probation after 

incarceration[?]

2. Whether [the PCRA] court had the right to 

knowingly appoint effective countsel [sic] that 

withdrew numerous times[?]

3. Whether D.A. Karson Jr. had the right to 

assign [sic] himsalf [sic] to [appellant’s] PCRA 

after being prosecuted by PA state attorney 

general for obstructing of administration of 

law, hindering apprehension of prosecution 

17 second degree charges[?]

4. Whether D.A. Karson, Jr., P.d. [sic] 

Davis, Pd [sic] Bogaty, X-A.D.A. [sic] 

[M]c[E]wen, and retired Judge Reed all 

commited [sic] governmental interference by 

noncomplyence [sic] to [appellant’s] letters 

dated from 6-27 through 6-30-17 and 8-15-17 

in researching [appellant’s] P.S.I. report[?]

5. Whether [the] trial court properly sentenced

[appellant] without use of PSI report[?]
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Appellant’s brief at 3-4.2

All PCRA petitions must be filed within one year of when a defendant’s 

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “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 the time for seeking 

the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme Court of 

Pennsylvania has held that the PCRA’s time restriction is constitutionally 

sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004). In 

addition, our supreme court has instructed that the timeliness of a PCRA 

petition is jurisdictional. If a PCRA petition is untimely, a court lacks 

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely 

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

Here, the trial court sentenced appellant on October 28, 2004. After 

this court affirmed, our supreme court denied appellant’s petition for 

allowance of appeal on August 23, 2006. Commonwealth v. Custer, 905 

A.2d 499 (Pa. 2006). Appellant did not seek further review with the 

Supreme Court of the United States. Consequently, appellant’s sentence 

became final on November 21, 2006, after the ninety-day period in which he 

 

2 Although the pages of appellant’s brief are not numbered, we have 

numbered the pages in order to facilitate locating the applicable pages.
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was allowed to seek review with the Supreme Court of the United States 

expired. See 42 Pa.C.S.A. § 9543(b)(3); U.S. Sup.Ct. R. 13(1). Appellant

needed to file his PCRA petition by November 21, 2007. This petition, filed 

on November 7, 2016, is facially untimely. As a result, the PCRA court 

lacked jurisdiction to review appellant’s petition, unless appellant pleads and 

proves that he meets one of the following exceptions to the time 

requirement:

(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)(i)-(iii). Section 9545 also mandates that any 

petition filed under these exceptions must be filed within 60 days of the date 

the claim could have been presented. Id. at § 9545(b)(2).

With respect to the issue of whether the PCRA petition was untimely, 

appellant asserts that he received a mandatory minimum sentence which 

was unconstitutional based on Alleyne v. United States, 570 U.S. 99 
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(2013), that constitutional issues cannot be waived or time barred, and that 

mandatory minimum sentences were not ruled unconstitutional until 2016.

To the extent appellant is arguing that his sentence is illegal, this claim 

does not allow him to skirt the timeliness requirement. “[E]ven claims that 

a sentence was illegal, an issue deemed incapable of being waived, are not 

beyond the jurisdictional time restrictions.” Commonwealth v. Grafton, 

928 A.2d 1112, 1114 (Pa.Super. 2007), citing Commonwealth v. Fahy, 

737 A.2d 214 (Pa. 1999); Commonwealth v. Beck, 848 A.2d 987 

(Pa.Super. 2004). Therefore, appellant’s illegal sentencing claim does not 

operate as an independent exception to the PCRA’s jurisdictional time-bar. 

Furthermore, as this court already stated when it affirmed the dismissal of 

his prior petition, the Pennsylvania Supreme Court determined in 

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), that 

Alleyne does not apply retroactively to cases pending on collateral review.

Therefore, we find that appellant failed to plead or prove that he met 

an exception to the timeliness requirements of the PCRA.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/1/2018