Opinion
J-S07018-17 No. 1201 MDA 2016
04-17-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. WAYNE AUSTIN SHOWERS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 12, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000600-2008 BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J. JUDGMENT ORDER BY LAZARUS, J.:
Wayne Austin Showers appeals, pro se, from the order, entered in the Court of Common Pleas of Lycoming County, dismissing, without a hearing, his petition filed under the Post-Conviction Relief Act ("PCRA"). 42 Pa.C.S.A. §§ 9541-46. We affirm.
Following a trial on May 5-6, 2009, a jury convicted Showers of aggravated indecent assault of a child and indecent assault of a child under 13 years of age with respect to victim, A.T. The jury also convicted him of statutory sexual assault, aggravated indecent assault, and indecent assault with respect to victim, B.P. The court sentenced Showers to an aggregate term of imprisonment of 52 months to 180 months. On direct appeal, a panel of this Court affirmed. Commonwealth v. Showers , 4 A.3d 702 (Pa. Super. 2010) (unpublished memorandum).
Showers then filed a timely pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition. The PCRA court entered an order reinstating Showers' direct appeal rights nunc pro tunc based upon its finding that "Showers was deprived of an independent review of his case and effectively stripped of his right to a direct appeal." Order, 4/13/13, at 2.
On direct appeal, Showers challenged the sufficiency of the evidence with respect to victim A.T. A panel of this court found those claims meritless and affirmed the judgment of sentence. Commonwealth v. Showers , 105 A.3d 781 (Table), filed July 2, 2014 (unpublished memorandum). The Pennsylvania Supreme Court denied Showers' allowance of appeal on January 21, 2015.
Showers filed a pro se PCRA petition on September 17, 2015, which the court treated as a first petition. The court appointed counsel. Counsel filed an amended petition on December 4, 2015, claiming the court imposed an illegal mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9718, in violation of Alleyne v. United States , 133 S. Ct. 2151 (2013) and Commonwealth v. Hopkins , 117 A.3d 247 (Pa. 2015). On May 9, 2016, the PCRA court issued notice of intent to dismiss without a hearing under Pa.R.Crim.P. 907, and on May 11, 2016, counsel filed a motion to withdraw. On July 12, 2016, the PCRA court granted counsel's motion to withdraw and entered an order dismissing Showers' PCRA petition.
In his pro se appeal, Showers claims his sentence is illegal under Alleyne. He also claims the trial court had no subject matter jurisdiction because his prosecution for the charges of aggravated indecent assault, 18 Pa.C.S.A. § 3125(b), violated the statute of limitations. See 42 Pa.C.S.A. § 5552(b).
After our review of Showers' arguments, the record and the relevant law, we conclude that the Honorable Marc F. Lovecchio properly disposed of Showers' claim under Alleyne. See PCRA Opinion, 5/9/14. Further, Showers' claim that his prosecution violated the statute of limitations is waived. Showers raises this claim for the first time in his brief on appeal. See 42 Pa.C.S.A. § 9544(b) ("For purposes of this subchapter, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.").
We affirm the order dismissing Showers' PCRA petition, and we direct the parties to attach a copy of Judge Lovecchio's opinion in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/17/2017
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