J-S38009-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD M. DECKER, JR.

Appellant No. 1944 MDA 2014

Appeal from the PCRA Order of November 4, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No.: CP-36-CR-0001576-2010

BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.: FILED JULY 14, 2015

Richard M. Decker, Jr., appeals the November 4, 2014 order that 

dismissed his petition for relief filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

The PCRA court summarized the factual and procedural history of this 

case as follows:

On December 9, 2009[,] just after midnight, [Decker] and 

another individual entered the House of Pasta in Lancaster 

County, Pennsylvania, they each removed a six pack of beer 

from the cooler, then they left without paying for them. When 

they were about to drive away, two restaurant employees 

confronted [Decker] and the other individual, demanding that 

they return the beer. The other individual returned it, but 

[Decker] pointed a handgun1at them, putting them in fear of 

imminent serious bodily injury. [Decker] and the other 

individual drove off.

1 The handgun was a BB gun that looked like a 

semiautomatic weapon, and the orange tape indicating 

that it was a non-lethal weapon had been blackened to 
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make it look like a lethal weapon. Indeed, when the gun 

was pointed at the victims, they became afraid and left the 

parking lot.

By Criminal Information at Docket No. 1576-2010, [Decker] was 

charged with Robbery-Threat of Immediate Serious Injury (F-1) 

(Count One), Criminal Conspiracy-Robbery (F-1) (Count 2), and 

Retail Theft (S) (Count Three).[1] Michael V. Marinaro, Esquire 

was appointed to represent [Decker].

On August 11, 2011, [Decker] pled guilty pursuant to an open 

plea to the Robbery charge at Count One. Following submission 

of a 7-page written colloquy and the [sentencing court’s] oral 

colloquy, [the sentencing court] accepted [Decker’s] guilty plea 

and deferred sentencing pending the completion of a presentence investigation. On September 20, 2011, the 

Commonwealth filed a Notice of Intention to Seek Imposition of 

Mandatory Minimum Sentence pursuant to 42 Pa.C.S.A. § 9712.

On September 23, 2011, [the sentencing court held its 

sentencing hearing. Decker] was aware that a mandatory 

minimum sentence of at least five years could be imposed and 

was also aware that, without considering the mandatory 

sentencing and based on his prior record, the minimum sentence 

per sentencing guidelines would be 6.5 years. On Count One, 

[the sentencing court] sentenced [Decker] to a sentence of 6.5 

to 15 years plus restitution and costs. [Decker] did not file any 

post-sentence motions or a direct appeal.

On October 3, 2013, [Decker] filed a pro se first Petition for 

Post-Conviction Relief. Vincent J. Quinn, Esquire, was appointed 

as counsel for this first PCRA Petition. On December 20, 2013, 

Attorney Quinn filed a “No-Merit Letter” and a Motion to 

Withdraw as Counsel (“Motion to Withdraw”) pursuant to 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998). 

On January 27, 2014, [the PCRA court] issued a Rule 907[2]

Notice, to which [Decker] did not respond. By Order docketed 

____________________________________________

1 See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(2), and 3929(a)(1), 

respectively.

2

Pa.R.Crim.P. 907.
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on February 25, 2014, [the PCRA court] dismissed the Petition 

and granted Attorney Quinn’s Motion to Withdraw.

On September 18, 2014, [Decker] filed his pro se second Petition 

for Post-Conviction Relief (“Second Petition”), claiming that he 

was sentenced pursuant to a minimum mandatory sentencing 

statute that subsequently was declared to be unconstitutional. 

He asked the [court] to re-sentence him without consideration of 

the sentencing statute. On September 26, 2014, [the PCRA 

court] issued a Rule 907 Notice informing [Decker] that [the 

PCRA court] intended to dismiss his Second Petition without 

further proceedings and allowing him to file a Response within 

20 days. Again, [Decker] did not file a Response. Therefore, by 

Order dated October 23, 2014 and docketed on November 4, 

2014, [the PCRA court] dismissed the Second Petition. On 

November 3, 2014, [Decker] filed a timely pro se Notice of 

Appeal. By Order dated November 19, 2014, [the PCRA court] 

directed him to file a [concise] statement of matters complained 

of on appeal (“Concise Statement”) within 21 days and notified 

him that “[a]ny issue not properly included in the statement 

timely filed and served pursuant to Pa.R.A.P. 1925(b) shall be 

deemed waived.” [Decker] failed to file a Concise Statement.

PCRA Court Opinion, 1/7/2015, at 1-4 (citations to record and some 

footnotes omitted). On January 7, 2015, the PCRA court filed an opinion 

pursuant to Pa.R.A.P. 1925(a), in which it concluded that Decker had waived 

all of his issues on appeal because he did not file a concise statement. 

Decker raises one issue on appeal: “Was [Decker] sentenced under the 

mandatory sentencing statutes guidelines therefore making [Decker’s] 

sentences illegal under the United States Constitution and the Pennsylvania 

Constitution?” Decker’s Brief at v. 

Before reaching the merits of Decker’s issue, we must determine 

whether Decker has preserved the issue, and whether we have jurisdiction 

to entertain it. Rule 1925(b) requires an appellant to file a concise 
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statement if ordered to do so by the presiding judge. Any issues not 

preserved in the concise statement are waived. Pa.R.A.P. 1925(b)(4)(viii). 

However, claims regarding the legality of sentence are non-waivable. 

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008). 

Challenges to the application of a mandatory minimum sentence are 

generally challenges to the legality of a sentence. Commonwealth v. 

Eisenberg, 98 A.3d 1268, 1274 (Pa. 2014). Therefore, Decker’s failure to 

file a concise statement is not fatal to his claim, if, and only if, we have 

jurisdiction to review the case. See Commonwealth v. Robinson, 931 

A.2d 15, 19-20 (Pa. Super. 2007) (“A challenge to the legality of the 

sentence . . . is non-waivable, and may be entertained so long as the 

reviewing court has jurisdiction.”).

Accordingly, we must consider whether we have jurisdiction to 

consider Decker’s issue on appeal. “[T]he PCRA time restrictions are 

jurisdictional in nature; consequently, Pennsylvania courts may not entertain 

untimely PCRA petitions.” Commonwealth v. Watts, 23 A.3d 980, 983 

(Pa. 2011). Although a challenge to the legality of a sentence is technically 

non-waivable, a court must first have jurisdiction before it may review such 

a claim. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). 

To be timely, a PCRA petition must be filed within one year of the 

judgment of sentence becoming 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 
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Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.” 42 Pa.C.S.A. § 9545(b)(3). The statute also provides for three 

exceptions to the one-year time bar:

(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment becomes final, unless the petition alleges and the 

petitioner proves that:

(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).

Here, Decker’s sentence became final on October 23, 2011, when the 

time elapsed for Decker to file a direct appeal. Therefore, Decker had until 

October 23, 2012 to file a timely PCRA petition. The instant petition was 

filed on September 18, 2014 and was facially untimely. We must determine 

whether any of the exceptions apply.

In his PCRA petition, Decker asserts that the “newly-discovered fact” 

exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), should apply. Decker argues that 

he could not have known about Alleyne v. United States, 133 S.Ct. 2151 
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(2013), and its progeny, which have declared the mandatory minimum 

sentence statute unconstitutional, and their existence could not have been 

ascertained within the one-year time bar. PCRA Petition, 9/18/2014, at 3-4. 

However, 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. Watts, 23 A.3d 980, 987 (Pa. 2011). Therefore, this 

exception does not provide Decker relief.

Decker also is not entitled to relief pursuant to the “newly recognized 

constitutional right” exception. See 42 Pa.C.S.A. § 9545(b)(1)(iii). We 

have held that the exception does not apply to cases involving Alleyne:

Even assuming that Alleyne did announce a new constitutional 

right, neither our Supreme Court, nor the United States 

Supreme Court has held that Alleyne is to be applied 

retroactively to cases in which the judgment of sentence had 

become final. This is fatal to Appellant’s argument regarding the 

PCRA time-bar. This Court has recognized that a new rule of 

constitutional law is applied retroactively to cases on collateral 

review only if the United States Supreme Court or our Supreme 

Court specifically holds it to be retroactively applicable to those 

cases.

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

Because no exception to the PCRA time-bar applies, Decker’s PCRA 

petition was untimely. Neither this Court nor the PCRA court have 

jurisdiction to reach the merits of Decker’s legality of the sentence claim,

and we affirm the PCRA court’s order dismissing the petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015