J-S23011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DWAYNE EDWARD MAURER

Appellant No. 2776 EDA 2015

Appeal from the PCRA Order August 20, 2015

in the Court of Common Pleas of Montgomery County

Criminal Division, at No(s): CP-46-CR-0001986-2010

BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J. FILED MAY 20, 2016

Appellant, Dwayne Edward Maurer, appeals pro se from the order 

dismissing as untimely his second petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On December 7, 2010, Appellant entered a negotiated guilty plea to 

two counts of involuntary deviate sexual intercourse as result of his actions 

toward his stepdaughter who, at the time of the offenses, was under the age 

of thirteen. In return, the Commonwealth agreed to withdraw multiple 

related charges. On March 18, 2011, in accordance with the plea agreement, 

the trial court sentenced Appellant to a term of ten to twenty years of 

____________________________________________



Former Justice specially assigned to the Superior Court.
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incarceration for the one count and a consecutive ten-year probationary 

term for the other count. Appellant did not file a direct appeal.

On February 3, 2012, Appellant filed a pro se PCRA petition, and the 

PCRA court appointed counsel. PCRA counsel filed a petition to withdraw and 

“no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc). The PCRA court issued notice of its intent to dismiss Appellant’s PCRA 

petition without a hearing. The court also granted PCRA counsel permission 

to withdraw. Appellant filed a response, but the PCRA court dismissed 

Appellant’s petition.

Appellant appealed to this Court. In an unpublished memorandum 

decision a panel affirmed the order denying Appellant post-conviction relief. 

See Commonwealth v. Maurer, 83 A.3d 1068 (Pa. Super. 2013) (Table). 

Our Supreme Court denied Appellant’s petition for allowance of appeal. 

Commonwealth v. Maurer, 2014 Pa. LEXIS 303 (Pa. 2014) (Table). 

On June 29, 2015, Appellant filed the pro se PCRA petition at issue. 

The PCRA court issued notice of intent to dismiss his petition without a 

hearing. Appellant filed a response. The PCRA court subsequently denied 

Appellant’s PCRA petition. This timely appeal follows. 

Appellant raises the following issues:

I. Did the [PCRA court] err in dismissing the instant [PCRA 

petition] as untimely when the instant petition was filed 

within sixty (60) days of learning of the United States 

Supreme Court’s decision in Alleyne v. United States, 
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[133 S.Ct. 2151 (2013)], thereby rendering his sentence 

unconstitutional and illegal?

II. Did the [PCRA court] err in dismissing the instant [PCRA 

petition] by stating the Court lacks jurisdiction to consider 

the merits when the [trial court] always retains jurisdiction 

to correct an illegal sentence and the inherent power to do 

so?

Response Brief for Appellant at 3.1 

In order to address Appellant’s issues, we must first determine 

whether the PCRA court correctly determined that Appellant untimely filed 

his second PCRA petition. The timeliness of a post-conviction petition is 

jurisdictional. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. 

Super. 2013). Generally, a petition for relief under the PCRA, including a 

second or subsequent petition, must be filed within one year of the date the 

judgment is final unless the petition alleges, and the petitioner proves, that 

an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. § 

9545(b)(1)(i)-(iii). A PCRA petition invoking one of these statutory 

exceptions must “be filed within 60 days of the date the claims could have 

been presented.” Hernandez, 79 A.3d 651-52 (citations omitted). See also

42 Pa.C.S.A. § 9545(b)(2).

Appellant’s judgment of sentence became final on April 18, 2011, 

when the thirty-day time period for filing an appeal to this Court expired. 

____________________________________________

1 Although Appellant inartfully raised these same claims in his original brief, 

we cite them as clarified in Appellant’s response brief for ease of discussion. 
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See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant needed to file the PCRA 

petition at issue by April 18, 2012, in order for it to be timely. Appellant filed 

the instant petition on June 9, 2015; it is untimely unless he has satisfied his 

burden of pleading and proving that one of the enumerated exceptions 

applies. 

Although Appellant challenges the legality of his sentence, this claim 

still must be presented in a timely PCRA petition. See Commonwealth v. 

Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). Appellant has failed to prove 

any exception to the PCRA’s time bar. Initially, nowhere in our review of the 

record do we find any indication that the sentence to which Appellant agreed 

as part of his guilty plea included a mandatory minimum. In fact, as the trial 

court noted at sentencing, Appellant agreed to imposition of the maximum

sentence on one count, and a consecutive ten-year probationary term on the 

other count. See N.T., 3/18/11, at 13. In return, the Commonwealth 

withdrew multiple charges. See id., at 14. 

Even if Appellant’s negotiated sentence included a mandatory 

minimum, he would still not be entitled to relief. Appellant’s claim fails for 

several reasons. First, as the PCRA Court aptly explained:

Our Supreme Court has held that “subsequent decisional 

law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) 

of the PCRA.” Commonwealth v. Brandon, 51 A.3d 231, 235 

(Pa. Super. 2012) (citing Commonwealth v. Watts, 23 A.3d 

980, 987 (Pa. 2011)). Therefore, this claim fails.

Even if Alleyne [and its progeny] were somehow to satisfy 

an exception to the time bar, [Appellant] did not raise [his claim] 
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until well beyond sixty days after those cases were decided. 

Date of case, not date of discovery is used for calculating 

exceptions. Brandon, 51 A.3d 235 (citation omitted).

PCRA Court Opinion, 10/21/15, at 6-7.

Moreover, to the extent Appellant argues he should benefit from 

retroactive application of the United States Supreme Court’s decision in 

Alleyne, his claim fails. In Alleyne, the high Court held that, other than the 

fact of a prior conviction, any fact that increases the penalty for a crime 

beyond the prescribed statutory minimum must be submitted to a jury and 

proved beyond a reasonable doubt. See 131 S.Ct. at 2160-61. Assuming, 

for the sake of argument, the Court recognized a new constitutional right in 

Alleyne, neither the United States Supreme Court nor the Pennsylvania 

Supreme Court has held the right applies retroactively to cases in which the 

judgment of sentence had become final. See Commonwealth v. Miller, 

102 A.3d 988, 995 (Pa. Super. 2014). Here, Appellant’s judgment of 

sentence became final in 2011. Accordingly, the Court’s decision in Alleyne 

does not apply. See Miller. See also Commonwealth v. Riggle, 119 A.3d 

1058, 1067 (Pa. Super. 2015) (“Alleyne is not entitled to retroactive effect 

in [the] PCRA setting.”). 

In sum, our review of the record supports the PCRA court’s conclusions 

that Appellant’s second PCRA petition is facially untimely, and that he has 

failed to establish an exception to the PCRA’s time bar. Therefore, because 

the PCRA court correctly found that it was without jurisdiction to address 
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Appellant’s substantive claims, we affirm its order denying post-conviction 

relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2016