Com. v. Downward, J.

Opinion

J-S24036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JARED LEE DOWNWARD

Appellant No. 1037 MDA 2015

Appeal from the Order Entered May 13, 2015 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005279-2008

BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 13, 2016

Appellant, Jared Lee Downward, appeals pro se from the order entered

in the Lancaster County Court of Common Pleas, denying his serial petition

for collateral relief under the Post Conviction Relief Act (“PCRA”),1 which

Appellant styled as a “motion for correction of sentence nunc pro tunc.” We

affirm.

The relevant facts and procedural history of this case are as follows.

From 2006 to 2008, Appellant engaged in sexual acts with three minor

victims. On July 23, 2009, Appellant 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 ____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. J-S24036-16

assault. The court sentenced Appellant on November 25, 2009, to an

aggregate term of twelve-and-one-half (12½) to twenty-eight (28) years’

incarceration. Appellant’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. Appellant did not file a direct appeal.

On October 12, 2010, Appellant 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 Appellant’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

Appellant 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 Appellant’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 Appellant’s rape

conviction under Section 9718 was five years’ incarceration. The court

denied PCRA relief in all other respects, including Appellant’s claim that

additional charges should have merged for sentencing. Appellant appealed

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the PCRA court’s order on February 21, 2012, after the court had scheduled

a hearing to resentence Appellant in accordance with the order.2 On March

30, 2012, the court resentenced Appellant 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

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 Appellant’s additional merger

claims). ____________________________________________

2 The January 19, 2012 order granting in part and denying in part Appellant’s PCRA petition constituted a final order for purposes of appeal. Therefore, Appellant’s notice of appeal was not premature, even though the court had yet to resentence Appellant in accordance with that order. See Commonwealth v. Gaines, 127 A.3d 15 (Pa.Super. 2015) (en banc) (holding PCRA court’s order, which granted sentencing claim and denied all claims for new trial, was final appealable order; period for filing appeal began to run on date of that order, rather than on date trial court resentenced defendant pursuant to order). 3 The PCRA court’s order did not state it was vacating any of Appellant’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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Appellant 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, Appellant pro se filed the instant “motion for correction of

sentence nunc pro tunc,” which the PCRA court denied on May 13, 2015.4

On June 12, 2015, Appellant timely filed a pro se notice of appeal. The court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

Appellant raises two issues for our review:

WHETHER THE [PCRA] COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW WHEN IT REFUSED TO CORRECT AN UNCONSTITUTIONAL SENTENCING [STATUTE] THAT IS NOW VOID AB INITIO?

WHETHER…APPELLANT HAS AN EQUAL PROTECTION RIGHT UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION TO A RE-SENTENCING HEARING JUST LIKE THOSE PRISONERS…WHO[SE] SENTENCES WERE VACATED BASED UPON UNCONSTITUTIONAL [STATUTES]? ____________________________________________

4 Because the court did not treat Appellant’s filing as a PCRA petition, it did not issue notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. Nevertheless, Appellant does not raise the issue of Rule 907 notice on appeal. See Commonwealth v. Williams, 909 A.2d 383, 384 n.4 (Pa.Super. 2006) (stating court’s failure to provide Rule 907 notice is not reversible error or even ground for remand, where petitioner has failed to raise issue on appeal). Further, where a PCRA petition is untimely in all respects, the court’s failure to issue Rule 907 notice is not reversible error. Commonwealth v. Pursell, 561 Pa. 214, 225 n.7, 749 A.2d 911, 917 n.7 (2000); Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa.Super. 2007).

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(Appellant’s Brief at 4).

In his first issue, Appellant argues his mandatory minimum sentences

are illegal in light of Alleyne v. United States, ___ U.S. ___, 133 S. Ct.

2151, 186 L.Ed.2d 314 (2013), and Commonwealth v. Wolfe, 106 A.3d

800 (Pa.Super. 2014).5 Appellant contends no statutory authorization exists

to support his mandatory minimum sentences as a result of those decisions.

Appellant asserts the trial court had jurisdiction over his case and retained

inherent authority to correct his illegal sentence at any time. Appellant

concludes this Court should vacate his judgment of sentence and remand for

resentencing. We disagree.

Generally, “a written post-sentence motion shall be filed no later than

10 days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). An untimely

post-sentence motion filed after the conclusion of the direct appeal process,

which raises a claim for relief contemplated by the PCRA, should be treated

as a PCRA petition. Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super.

2013). See also Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super.

2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (stating attack on

legality of sentence is cognizable under PCRA).

The timeliness of a PCRA petition is a jurisdictional requisite. ____________________________________________

5 The Pennsylvania Supreme Court recently affirmed this Court’s decision in Wolfe. See Commonwealth v. Wolfe, ___ A.3d ___, 2016 WL 3388530 (Pa. filed June 20, 2016).

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Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at

the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

PCRA’s timeliness provisions allow for very limited circumstances under

which the late filing of a petition will be excused. See 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii). To invoke the “new constitutional right” exception, the

petitioner must plead and prove that “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)(1)(iii). A petitioner asserting a timeliness exception must file a

petition within sixty days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).

Instantly, the trial court initially sentenced Appellant on November 25,

2009. Appellant did not file a direct appeal. Appellant filed his first PCRA

petition on October 12, 2010, which the court granted in part and denied in

part. On March 30, 2012, pursuant to its order granting partial PCRA relief,

the court resentenced Appellant on his rape of a child conviction and merged

his convictions of IDSI and indecent assault with respect to C.S.P. The court

re-imposed Appellant’s original sentences for all other convictions, including

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the two mandatory minimum IDSI sentences with respect to victims D.M.P.

and B.J.P. Appellant filed his second PCRA petition on April 23, 2013, which

was denied as untimely. On April 16, 2015, Appellant filed the instant

“motion for correction of sentence nunc pro tunc,” in which he raised an

Alleyne challenge to his IDSI sentences with respect to D.M.P. and B.J.P.

Because Appellant’s direct appeal process had already concluded when he

filed the “motion,” which challenged the legality of those two IDSI

sentences, the court should have treated his filing as a PCRA petition. See

Ruiz, supra; Taylor, supra; Fowler, supra.

Further, the court’s grant of partial relief on Appellant’s first PCRA

petition, which resulted in resentencing on March 30, 2012, did not “reset

the clock” for purposes of calculating the date Appellant’s judgment of

sentence became final. See Commonwealth v. Keever, 947 A.2d 782

(Pa.Super. 2008) (stating successful PCRA petition does not affect

calculation of finality of judgment of sentence where relief granted neither

restored petitioner’s direct appeal rights nunc pro tunc nor disturbed

conviction, but affected petitioner’s sentence only). Therefore, for purposes

of the PCRA, Appellant’s judgment of sentence became final on Monday,

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

this Court from the original date of sentencing on November 25, 2009. See

42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Consequently, when properly

construed as a serial PCRA petition, Appellant’s current “motion” is patently

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untimely.6 See 42 Pa.C.S.A. § 9545(b)(1). Appellant failed to plead and

prove any exception to the PCRA’s timeliness requirements. Further, the

new constitutional rule announced in Alleyne does not apply retroactively.

See Commonwealth v. Washington, ___ A.3d ___, 2016 WL 3909088

(Pa. filed July 9, 2016). Moreover, the trial court at no time ever

granted Appellant leave to file a post-sentence motion nunc pro tunc.

Therefore, any “motion for correction of sentence nunc pro tunc” at this

juncture would be untimely in the context of Rule 720. See Pa.R.Crim.P.

720(A)(1). Additionally, the alleged sentencing error at issue is not the type

of “patent” or “obvious” error that a court has inherent authority to correct.

See Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57 (2007) (stating

court has inherent power to correct sentencing errors in absence of

traditional jurisdiction only where sentencing order contains patent and

obvious mistake). Based on the foregoing, the court properly dismissed

Appellant’s “motion for correction of sentence nunc pro tunc” as untimely.

In his second issue, Appellant argues his mandatory minimum

sentences violate his due process and equal protection rights because other ____________________________________________

6 The use of the original date of sentencing for purposes of determining the timeliness of Appellant’s current PCRA petition (which technically attacks the new sentence imposed on March 30, 2012) could conceivably cause some confusion. We do not, however, need to address the matter in this appeal. Appellant did not file a direct appeal from his new sentence. Thus, even if we used the amended sentence date March 30, 2012, as the relevant date for determining when Appellant’s judgment of sentence became final, the current PCRA petition is still time-barred.

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defendants sentenced under unconstitutional statutes have had their

sentences vacated. Appellant concludes he is similarly entitled to

resentencing. We cannot agree.

As a preliminary matter, issues not raised before the PCRA court are

waived on appeal. Commonwealth v. Lauro, 819 A.2d 100 (Pa.Super.

2003), appeal denied, 574 Pa. 752, 830 A.2d 975 (2003). See also

Pa.R.A.P. 302(a) (stating: “Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal”). Likewise, any issue not

raised in a Rule 1925(b) statement will be deemed waived for appellate

review. Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005).

Instantly, Appellant failed to raise his due process/equal protection

claim in his “motion for correction of sentence nunc pro tunc.” Appellant

also failed to articulate the issue in his Rule 1925(b) statement. Thus,

Appellant’s second issue is waived. See id.; Lauro, supra. Moreover,

Appellant’s “motion for correction of sentence nunc pro tunc” remains time-

barred under the PCRA, so the court would have lacked jurisdiction to

entertain Appellant’s due process/equal protection challenge even if he had

raised it in his “motion.” Accordingly, we affirm.

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Order affirmed.

Judge Musmanno joins this memorandum.

Judge Bowes concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/13/2016

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