J-S96038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SCOTT LUCE

Appellant No. 988 WDA 2016

Appeal from the PCRA Order Dated May 9, 2016

In the Court of Common Pleas of Crawford County

Criminal Division at No(s): CP-20-CR-0000139-2002

 CP-20-CR-0000334-2001

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.: FILED APRIL 10, 2017

Pro se Appellant, Scott Luce, appeals from the order dismissing his 

second Post Conviction Relief Act (“PCRA”)1 petition. Appellant contends 

that his sentence was illegal under Alleyne v. United States, 133 S. Ct. 

2151 (June 17, 2013),2the holding of which he incorrectly contends was 

made retroactive under Montgomery v. Louisiana, 136 S. Ct. 718 

(Jan. 25, 2016). We quash the appeal as untimely. 

The facts relating to the underlying crimes are unnecessary for our 

disposition. Appellant entered an open plea of guilty to aggravated indecent 

____________________________________________

1 42 Pa.C.S. §§ 9541-9456.

2 Alleyne held that a mandatory minimum sentence is unconstitutional 

unless all facts that increase the sentence are proven to a jury beyond a 

reasonable doubt. Alleyne, 133 S. Ct. at 2155.
J-S96038-16

- 2 -

assault of a child less than thirteen years old3and statutory sexual assault.4

Commonwealth v. Luce, 143 WDA 2005, at 1-2 (Pa. Super., Sept. 8, 

2005). Appellant was nineteen years old when he committed the above 

crimes. Id. at 1. The court sentenced Appellant on November 7, 2002. For 

Appellant’s aggravated indecent assault conviction, the court imposed an 

aggravated range sentence of four to ten years’ imprisonment. With respect 

to his statutory sexual assault conviction, the court sentenced Appellant to 

four to ten years’ imprisonment, which was outside of the aggravated range 

and made consecutive to the other sentence. At the time of Appellant’s 

sentencing, there were no mandatory minimum sentences for the crimes at 

issue.5

Appellant did not immediately file a direct appeal, but he did file a 

successful PCRA petition requesting reinstatement of his direct appeal rights 

____________________________________________

3 18 Pa.C.S. § 3125(a)(7).

4 18 Pa.C.S. § 3122.1.

5

In 2004, our Legislature amended 42 Pa.C.S. § 9718 to establish a 

mandatory minimum sentence of two and one-half years’ imprisonment for a 

conviction of aggravated indecent assault of a child less than thirteen years 

old. Act No. 2004-217, P.L. 1703 (Nov. 30, 2004). Subsequently, the 

Legislature again amended Section 9718 to set a mandatory minimum 

sentence of five years. Act No. 2006-178, P.L. 1567 (Nov. 29, 2006). 

Recently, our Supreme Court held Section 9718 unconstitutional in 

Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016), a case on direct 

appeal and not on collateral review. We have held, however, that imposition 

of a standard guideline range sentence that exceeded the mandatory 

minimum sentence is not unlawful. See also Commonwealth v. Zeigler, 

112 A.3d 656, 662 (Pa. Super. 2015).
J-S96038-16

- 3 -

nunc pro tunc. On direct appeal, this Court affirmed. Luce, 143 WDA 2005. 

Appellant later filed an untimely first PCRA petition, the PCRA court 

dismissed that petition, and this Court affirmed that dismissal. 

Commonwealth v. Luce, 213 & 216 WDA 2012 (Pa. Super., Sept. 11, 

2012). 

The PCRA court docketed Appellant’s second PCRA petition on 

March 21, 2016. Appellant’s petition claimed that his sentences were illegal, 

citing Montgomery; Alleyne; Miller v. Alabama, 567 U.S. 460 (June 25, 

2012) (prohibiting juveniles from being sentenced to mandatory life 

sentences without parole); and Teague v. Lane, 489 U.S. 288, 310 (1989) 

(a plurality decision holding that a new rule of constitutional law does not 

apply retroactively to convictions that became final prior to the 

announcement of the new rule). 

On April 6, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of 

an intent to dismiss Appellant’s PCRA petition. The PCRA court docketed 

Appellant’s timely response to that notice on April 25, 2016. Appellant’s 

response expanded upon the arguments raised in his petition. 

The PCRA court dismissed Appellant’s petition on May 9, 2016. That 

order informed Appellant, among other things, that he had thirty days to file 

an appeal. The court mailed the dismissal to Appellant’s prison address via 

certified mail. 

The PCRA court docketed Appellant’s notice of appeal on June 29, 

2016. Appellant’s notice of appeal contains no other dates; the record does 
J-S96038-16

- 4 -

not include a certificate of service, envelope, postmark, or any other 

indication of when Appellant placed his notice in the prison mail system. In 

a Rule 1925(a) opinion, the PCRA court noted that the appeal appeared 

untimely. We agree. Because the only information in the record supports 

the conclusion that Appellant’s appeal is untimely, we quash the appeal. 

We must address the timeliness of an appeal because we have 

jurisdiction only if a timely notice of appeal was filed. Commonwealth v. 

Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc), appeal denied, 

882 A.2d 477 (Pa. 2005). Here, the only information of record shows that 

Appellant did not file his appeal until fifty-one days after entry of the PCRA 

court’s May 9, 2016 order dismissing his PCRA petition. An appeal is 

untimely, however, if the notice of appeal is not filed within 30 days. 

Pa.R.App.P. 903(a). 

We cannot extend the time for filing an appeal, though we can afford 

relief if a notice of appeal is untimely because of fraud or a breakdown in the 

processes of the court. Commonwealth v. Patterson, 940 A.2d 493, 498 

(Pa. Super. 2007) (citations omitted), appeal denied, 960 A.2d 838 (Pa. 

2008). There is no evidence of fraud or a breakdown of court processes 

here, however. Indeed, Appellant’s brief asserts that “On June 29, 2016 

appellant timely filed his notice of appeal,” Appellant’s Brief at 5 (emphasis 

added), which suggests that Appellant deliberately filed on that date in a 

mistaken belief that he had until June 29, 2016 to file. 
J-S96038-16

- 5 -

Accordingly, having discerned no administrative breakdown in the 

court system, we are barred from excusing Appellant’s untimely notice of 

appeal, and we therefore quash the appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2017