J-S50028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT KERNS
Appellant No. 131 MDA 2016
Appeal from the PCRA Order Entered December 28, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0000371-2001
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 22, 2016
Appellant, Scott Kerns, appeals pro se from the December 28, 2015
order dismissing his thirteenth1 petition pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
On November 7, 2000, the Commonwealth charged Appellant with
Involuntary Deviate Sexual Intercourse2 (“IDSI”) and other offenses arising
from Appellant’s abuse of the minor daughter of Appellant’s wife. On May
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
This number includes PCRA petitions and other petitions, bearing various
titles, which the trial court treated as PCRA petitions. Appellant also has
sought habeas corpus and other relief in federal court.
2
18 Pa.C.S.A. § 3123.
J-S50028-16
14, 2001, Appellant pled guilty to one count of IDSI. On January 18, 2002,
the trial court sentenced Appellant to 7½ to 20 years of incarceration. This
Court affirmed the judgment of sentence on December 13, 2003. Appellant
filed his timely first PCRA petition on February 14, 2004. The PCRA court
dismissed that petition on June 8, 2004. This Court affirmed the PCRA
court’s order on March 4, 2005. Subsequently, Appellant filed serial
petitions in state and federal court. Appellant filed the instant petition, his
thirteenth, on September 24, 2015.
The PCRA’s jurisdictional timeliness provision states that a petitioner
must file a petition within one year of the date on which his judgment of
sentence becomes final, or plead and prove the applicability of one of the
three statutory exceptions to the one-year time bar. 42 Pa.C.S.A.
§ 9545(b)(1); Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010). Failure to do so deprives the PCRA court of jurisdiction to entertain
the petition. Id.
Appellant’s thirteenth PCRA petition is facially untimely. He argues
that that his petition is timely in light of the new constitutional rule
announced in Alleyne v. United States, 133 S. Ct. 2151 (2013). In
Alleyne the Supreme Court held that any fact other than a prior conviction
requiring imposition of a mandatory minimum sentence must be found
beyond a reasonable doubt by the trier of fact. Id. at 2155. Section
9545(b)(1)(iii) permits an otherwise untimely petition where the petition is
-2-
J-S50028-16
based on a constitutional right recognized by the United States or
Pennsylvania Supreme Courts. 42 Pa.C.S.A. § 9545(b)(1)(iii). Section
9545(2) requires that any petition qualifying for an exception under
§ 9545(b)(1) must be filed within 60 days of the first date on which the
claim could have been raised. 42 Pa.C.S.A. § 9545(b)(2). Appellant cannot
file a timely petition under Alleyne because his petition post-dates Alleyne
by more than two years.
Appellant also cites Montgomery v. Louisiana, 136 S. Ct. 718
(2016) because he believes the Supreme Court’s retroactivity analysis in
that case renders Alleyne retroactive. To date, the Courts of this
Commonwealth considering the issue have held that Alleyne does not apply
retroactively. See Commonwealth v. Miller, 102 A.3d 988, 994-95 (Pa.
Super. 2014) (concluding that Alleyne issues do not trigger
§ 9545(b)(1)(iii)).
Furthermore, we need not address Appellant’s retroactivity argument
under Montgomery, because Appellant did not receive a five-year
mandatory minimum sentence.3 As noted above, Appellant received a 7½
year minimum sentence. He argues that his sentence is illegal because the
facts that prompted the trial court to sentence him above the guideline
____________________________________________
3
Under § 9718 of the judiciary code, certain IDSI convictions carry a five-
year mandatory minimum sentence. 42 Pa.C.S.A. § 9718. That section is
unconstitutional under Alleyne. Commonwealth v. Wolfe, ___ A.3d ___
2016 WL 3388530 (Pa. 2016).
-3-
J-S50028-16
range were not submitted to a jury and found beyond a reasonable doubt.
Appellant’s Pro Se Brief at 5, 9. The trial court’s exercise of its sentencing
discretion does not implicate Alleyne. Appellant’s argument is unavailing
even if—contrary to existing precedent—we apply Alleyne retroactively. We
therefore affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
-4-
Com. v. Kerns, S.
Combined Opinion