Com. v. Downward, J.

J-S48004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JARED LEE DOWNWARD :
:
Appellant : 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 (12½) 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.
____________________
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
____________________________________________
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)3 and 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 non-
elemental 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 time-
bar 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 well-
settled 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.
________________________________________
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 post-
dated 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.
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