J-S48004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JARED LEE DOWNWARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2010 MDA 2016

Appeal from the PCRA Order November 15, 2016

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0005279-2008

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 21, 2017

Jared Lee Downward appeals pro se from the Order entered November 

15, 2016, in the Court of Common Pleas of Lancaster County that denied, 

without a hearing, Downward’s serial petition filed pursuant to the 

Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546. 

Downward claims he is serving an illegal sentence, and that he is entitled to 

the same relief as those who can timely file PCRA petitions based on the 

equal protection clause to the Constitution. Based upon the following, we 

affirm.

The background of this case was summarized by this Court in 

Downward’s prior PCRA appeal:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The relevant facts and procedural history of this case are as 

follows. From 2006 to 2008, [Downward] engaged in sexual acts 

with three minor victims. On July 23, 2009, [Downward] pled 

guilty to one count of rape of a child and three counts each of 

involuntary deviate sexual intercourse (“IDSI”), statutory sexual 

assault, corruption of minors, and indecent assault. The court 

sentenced [Downward] on November 25, 2009, to an aggregate 

term of twelve-and-one-half (121⁄2) to twenty-eight (28) years’ 

incarceration. [Downward’s] sentence included concurrent 

mandatory minimum terms of ten (10) to twenty (20) years’ 

incarceration for the three IDSI convictions and the conviction 

for rape of a child, pursuant to 42 Pa.C.S.A. § 9718. [Downward] 

did not file a direct appeal.

On October 12, 2010, [Downward] filed his first pro se PCRA 

petition. The court appointed counsel, who filed an amended 

petition. On December 21, 2011, the PCRA court entered an 

order granting in part and denying in part the petition. The court 

concluded [Downward’s] convictions for indecent assault, IDSI, 

and rape of a child with respect to one victim, C.S.P., should 

have merged for sentencing purposes. The court further 

determined [Downward] performed the act underlying his 

conviction for rape of a child before Section 9718 was amended 

to increase the mandatory minimum sentence for that offense 

from five to ten years’ incarceration. After PCRA counsel 

requested clarification of the decision, the court entered an 

amended order on January 19, 2012, in which it vacated 

[Downward’s] sentences for rape of a child, IDSI, and indecent 

assault with respect to C.S.P., and declared the mandatory 

minimum sentence applicable to [Downward’s] rape conviction 

under Section 9718 was five years’ incarceration. The court 

denied PCRA relief in all other respects, including [Downward’s] 

claim that additional charges should have merged for 

sentencing. [Downward] appealed the PCRA court’s order on 

February 21, 2012, after the court had scheduled a hearing to 

resentence [Downward] in accordance with the order. On March 

30, 2012, the court resentenced [Downward] to a mandatory 

minimum term of five (5) to ten (10) years’ incarceration for the 

rape of a child conviction and merged the indecent assault and 

IDSI convictions relating to C.S.P. The court re-imposed the 

original sentences for all other convictions, which resulted in a 

new aggregate sentence of twelve (12) to twenty-six years (26) 

years’ incarceration.3
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3 The PCRA court’s order did not state it was vacating any 

of [Downward’s] sentences other than those for rape of a 

child, indecent assault, and IDSI with respect to C.S.P. 

Nevertheless, the court’s resentencing order indicates it 

re-imposed the original sentences for the remaining 

convictions.

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This Court affirmed the PCRA court’s January 19, 2012 order on 

November 1, 2012, and the Pennsylvania Supreme Court denied 

allowance of appeal on March 26, 2013. See Commonwealth v. 

Downward, 63 A.3d 818 (Pa.Super. 2012) (unpublished 

memorandum), appeal denied, 619 Pa. 698, 63 A.3d 1243 

(2013) (rejecting [Downward’s] additional merger claims). 

[Downward] filed his second pro se PCRA petition on April 23, 

2013, which the PCRA court denied as untimely on May 23, 

2013. This Court affirmed the PCRA court’s order on April 9, 

2014. See Commonwealth v. Downward, 102 A.3d 526 

(Pa.Super. 2014) (unpublished memorandum). On April 16, 

2015, [Downward] pro se filed the instant “motion for correction 

of sentence nunc pro tunc,” which the PCRA court denied on May 

13, 2015. 

Commonwealth v. Downward, 158 A.3d 177 [1037 MDA 2015] (Pa. 

Super. September 13, 2016) (unpublished memorandum, at 1–4) (some 

footnotes omitted). This Court found that the trial court should have treated 

Downward’s “motion for correction of sentence nunc pro tunc” as a PCRA 

petition, determined that the PCRA petition was untimely and Downward had 

failed to plead and prove any exception to the PCRA’s timeliness 

requirements, and affirmed the denial of relief. See id.
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On September 29, 2016, Downward filed the present pro se PCRA 

petition — his fourth.1 On October 25, 2016, the PCRA court issued notice of 

intent to dismiss the petition as untimely. Downward filed a response to the 

Rule 907 notice, after which the PCRA court dismissed the petition on 

November 15, 2016. This appeal followed.

Our standard of review is well settled:

When reviewing the propriety of an order denying PCRA relief, 

this Court is limited to a determination of whether the evidence 

of record supports the PCRA court's conclusions and whether its 

ruling is free of legal error. This Court will not disturb the PCRA 

court’s findings unless there is no support for them in the 

certified record.

Commonwealth v. Woods, ___ A.3d ___, ___ [2017 PA Super 181] (Pa. 

Super. 2017) (citations omitted).

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). All PCRA 

petitions must be filed within one year of the date upon which the judgment 

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1 Although this petition was time-stamped and docketed on October, 3, 

2016, the mailing envelope included in the certified record with the PCRA 

petition reflects a post-mark date of September 29, 2016. Pursuant to the 

prisoner mailbox rule, a PCRA petition is considered filed on the date it was 

delivered to prison authorities for mailing. See Commonwealth v. Castro, 

766 A.2d 1283, 1287 (Pa. Super. 2001); Commonwealth v. Little, 716 

A.2d 1287 (Pa. Super. 1998). Applying the prisoner mailbox rule, we 

consider September 29, 2016 as the date of filing of Downward’s present 

petition.
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of sentence became final, unless one of the statutory exceptions applies. 42 

Pa.C.S. § 9545(b)(1)(i)-(iii). Any 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, the instant PCRA petition is facially untimely as Downward’s 

judgment of sentence became final on December 28, 2009.2 Therefore, this 

petition cannot be reviewed unless Downward pleads and proves a statutory 

exception to the PCRA time bar. 

In his present petition, Downward asserts that because he was 

sentenced to two mandatory minimum sentences pursuant to 42 Pa.C.S. § 

9718 for IDSI, he is entitled to resentencing under Alleyne v. United 

States, 133 S. Ct. 2151 (2013)3and Commonwealth v. Wolfe, 140 A.3d 

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2 See Commonwealth v. Downward, 158 A.3d 177 (Pa. Super. 

September 13, 2016) (unpublished memorandum, at *8 and n.6) (finding 

“[Downward’s] judgment of sentence became final on Monday, December 

28, 2009, upon the expiration of the time to file a direct appeal with this 

Court from the original date of sentencing on November 25, 2009”; “even if 

we used the amended sentence date of March 30, 2012, as the relevant date 

for determining when [Downward’s] judgment of sentence became final, the 

current PCRA petition is still time-barred.”).

3

In Alleyne, the United States Supreme Court held “[a]ny fact that, by law, 

increases the penalty for a crime is an ‘element’ that must be submitted to 

the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S. Ct. 

at 2155. “The effect [of Alleyne] was to invalidate a range of Pennsylvania 

sentencing statutes predicating mandatory minimum penalties upon nonelemental facts and requiring such facts to be determined by a 

preponderance of the evidence at sentencing.” Commonwealth v. 

Washington, 142 A.3d 810, 812 (Pa. 2016).
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651 (Pa. June 20, 2016) (holding 42 Pa.C.S. § 9718 is unconstitutional 

under Alleyne). As such, Downward’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).4

The PCRA judge, the Honorable David L. Ashworth, analyzed 

Downward’s claim, as follows:

Here, Downward appears to be invoking the time-bar 

exception under Section 9545(b)(1)(iii). Downward maintains 

that his mandatory minimum sentence pursuant to 42 Pa.C.S.A. 

§ 9718, which provides mandatory minimum sentences for 

various crimes against children, is unconstitutional pursuant to 

Wolfe. (See 2016 PCRA Petition at ¶¶14–15.) Thus, 

Downward’s argument may be characterized as an attempt to 

assert the “new constitutional right” exception to the PCRA timebar based on Wolfe. 

In Wolfe, the [Pennsylvania] Supreme Court affirmed the 

Superior Court’s holding that Section 9718 is unconstitutional 

under Alleyne. Wolfe, supra at ___, 140 A.3d at 663 (“[W]e 

reaffirm Hopkins[5] and find that Section 9718 is irremediably 

unconstitutional on its face, nonseverable, and void.”). 

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4 As the instant pro se petition was on filed September 29, 2016, which falls 

within 60 days of this Court’s decision affirming the denial of relief on 

Downwards’ third PCRA petition on September 13, 2016, Downward has 

satisfied the 60-day requirement of 42 Pa.C.S. § 9545(b)(2).
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This reliance on Wolfe is misplaced, however, as the 

Supreme Court did not recognize a new constitutional right, let 

alone hold any such right applied retroactively. Rather, it merely 

applied Alleyne to hold that a particular mandatory minimum 

sentence applied to Downward was unconstitutional. It is wellsettled that Alleyne does not invalidate a mandatory minimum 

sentence when the claim is raised in an untimely PCRA petition. 

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

2014). Furthermore, our Supreme Court has held that Alleyne 

and its progeny do not apply retroactively to cases on collateral 

review. Commonwealth v. Washington, ___ Pa. ___, 142 

A.3d 810, [820] (2016). Thus, the Wolfe decision does not 

assist Downward in establishing a timeliness exception to the 

PCRA’s limitations.

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5

In Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 

247, 249 (2015), our Supreme Court applied Alleyne to 

hold that the mandatory minimum sentence found at 18 

Pa.C.S.A. § 6317 (relating to drug activity in a school 

zone) was unconstitutional, and that severance of the 

violative provisions from the statue is not permissible.

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PCRA Court Opinion, 11/15/2016, at 8–9. We agree with the sound 

reasoning of Judge Ashworth. 

Wolfe involved a direct appeal from a judgment of sentence that postdated Alleyne and applied Alleyne to hold Section 9718 was 

unconstitutional; Wolfe did not establish a new constitutional right, much 

less a constitutional right that applies retroactively. Furthermore, in 

Washington, supra, the Pennsylvania Supreme Court held “Alleyne does 

not apply retroactively to cases pending on collateral review.” Id., 142 A.3d 

at 820.
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In short, because the present petition is patently untimely and does 

not satisfy any PCRA statutory exception, Downward’s fourth PCRA petition 

was properly dismissed as the PCRA court lacked jurisdiction to review the 

petition.5

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2017

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5 Because Downward’s petition does not overcome the PCRA time-bar, this 

Court as well as the PCRA court lacks jurisdiction to entertain Downward’s 

second, equal protection challenge.