J-S57016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

JORGE LUIS RAMOS-AYALA

                         Appellant                    No. 1974 EDA 2016


               Appeal from the PCRA Order dated June 8, 2016
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0002721-2012

BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                        FILED DECEMBER 22, 2017

      Appellant Jorge Luis Ramos-Ayala appeals pro se from the order

dismissing his second petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      This Court previously summarized the factual and procedural history of

this case as follows:

      Appellant was arrested and charged with numerous counts
      related to corrupt organizations and possession and delivery of
      heroin. The Commonwealth offered Appellant a plea bargain,
      which included a minimum of 40 months of incarceration, but no
      limit on the maximum sentence. Appellant rejected the offer and
      proceeded to a bench trial. Appellant was convicted on all counts
      and sentenced to an aggregate term of seven-and-a-half to
      fifteen years’ incarceration. Appellant did not file a direct appeal,
      but on September 13, 2013, Appellant timely filed a pro se PCRA
      petition.

Commonwealth v. Ramos-Ayala, 118 A.3d 452 (Pa. Super. 2015)

(unpublished memorandum). The PCRA court appointed counsel, who filed a
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Turner/Finley1 “no merit” letter on March 24, 2014.        On May 12, 2014, the

PCRA court dismissed Appellant’s first PCRA petition.           Appellant timely

appealed and this Court affirmed the dismissal on January 23, 2015.

Appellant did not petition for allowance of an appeal with the Pennsylvania

Supreme Court.

       Appellant filed the underlying PCRA petition, his second, on April 12,

2016. On April 28, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss the petition as untimely. On June 8, 2016, the PCRA

court dismissed the petition.          Appellant filed a timely pro se appeal on

June 29, 2016. Appellant presents three issues:

       1.    Does [A]ppellant’s newly discovered evidence satisfy [the]
       timeliness exception under 42 Pa.C.S.A. § 9545(b)(1)(ii)?

       2.    Is [the] mandatory minimum sentencing statute 18
       Pa.C.S. § 7508 facially unconstitutional, and as-applied to
       [A]ppellant, pursuant to Alleyne v. United States?

       3.    Does    [A]ppellant’s   aggregated     sentence    warrant
       correction, now that his prior drug conviction which singularly
       accounted for [A]ppellant’s prior record score pursuant [to] 204
       Pa. Code § 303.7, and triggered mandatory minimum sentence
       enhancement under 18 Pa.C.S. § 7508, was set aside on appeal?

Appellant’s Brief at 7.

       We may not consider Appellant’s first issue, in which, for the first time,

Appellant argues that his petition falls within an exception to the PCRA’s

time bar based on newly discovered evidence of criminal wrongdoing by
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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Philadelphia police officers. Appellant’s Brief at 14. Appellant did not raise

this issue in his petition filed on April 12, 2016, although he states that the

officers were arrested in July of 2014. See id. “We have stressed that a

claim not raised in a PCRA petition cannot be raised for the first time on

appeal.”   Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004).

Further, an appellant cannot prove an exception to the PCRA time bar where

“information was publicly available for years . . . [and] these facts were

easily discoverable and in the public record for longer than 60 days before

the petition was filed.” Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa.

2012).

      Appellant did raise his remaining two issues in his petition.           When

reviewing the propriety of an order denying PCRA relief, this Court is limited

to determining whether the evidence of record supports the conclusions of

the   PCRA    court   and   whether   the   ruling   is   free   of   legal   error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super.), appeal denied, 95 A.3d 277 (Pa. 2014).

      In addition, a PCRA petition must be timely. To be timely, it must be

filed within one year of the date the petitioner’s judgment of sentence

became final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence “becomes

final at the conclusion of direct review, including discretionary review in the


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Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”             42 Pa.C.S.

§ 9545(b)(3). However, an untimely petition may be considered when the

petition alleges, and the petitioner proves, that one of the three limited

exceptions to the time for filing the petition set forth at 42 Pa.C.S.

§ 9545(b)(1) is met. That provision states:

     (1) Any petition under this subchapter, including a second or
     subsequent petition, shall be filed within one year of the date the
     judgment becomes final, unless the petition alleges and the
     petitioner proves that:

        (i) the failure to raise the claim previously was the result of
        interference by government officials with the presentation of
        the claim in violation of the Constitution or laws of this
        Commonwealth or the Constitution or laws of the United
        States;

        (ii) the facts upon which the claim is predicated were
        unknown to the petitioner and could not have been
        ascertained by the exercise of due diligence; or

        (iii) 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). A petition invoking one of these exceptions must

be filed within sixty days of the date the claim could first have been

presented. 42 Pa.C.S. § 9545(b)(2).     In order to be entitled to proceed

under an exception to the PCRA’s one-year filing deadline, “the petitioner

must plead and prove specific facts that demonstrate his claim was raised




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within     the   sixty-day    time      frame”   under   Section   9545(b)(2).

Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).

        Whether a PCRA petition is timely is a question of law.    This Court’s

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013). It is well

settled that “[t]he filing mandates of the PCRA are jurisdictional in nature

and are strictly construed.”      Id.    Consequently, “[a]n untimely petition

renders this Court without jurisdiction to afford relief.” Id.

        Here, Appellant’s judgment of sentence was entered on August 30,

2013.     Appellant did not file a direct appeal; as a result, his judgment of

sentence became final 30 days later, on Monday, September 30, 2013.

Appellant had to file his PCRA petition by September 30, 2014 for it to be

timely.    42 Pa.C.S. § 9545(b)(1).      Because Appellant filed the underlying

petition on April 12, 2016, we agree with the PCRA court that the petition is

untimely. See PCRA Court Order, 4/28/16, at 3 (unpaginated).

        The PCRA court determined that it was without jurisdiction to review

Appellant’s claims because Appellant failed to prove an exception to the

PCRA’s time bar. The PCRA court stated:

        The facts of record fail to support a claim that any of the
        exceptions [to the PCRA time bar] appl[y].            No facts or
        averments indicate that petitioner’s failure to raise the claim of
        illegal sentence[ing] previously was the result of interference by
        government officials, hence the exception established by 42
        Pa.C.S. § 9545(b)(1)(i) does not apply. The record indicates
        that the facts upon which the claim is based were known to the


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     petitioner, hence the exception established by 42 Pa.C.S.
     § 9545(b)(1)(ii) does not apply.

     Nor is the right asserted a constitutional right that was recently
     recognized by the Supreme Court of the United States or the
     Supreme Court of Pennsylvania and held by that court to apply
     retroactively, hence the exception established by 42 Pa.C.S. §
     9545(b)(1)(iii) does not apply. To the extent petitioner inartfully
     intended to raise that exception by citing Alleyne [v. United
     States, 133 S. Ct. 2151 (2013),] and Montgomery v.
     Louisiana[, 136 S. Ct. 718 (2016], those cases fail to support
     the invocation of the exception. Alleyne has not been held to
     apply retroactively, and Montgomery v. Louisiana, which
     pertains to the lawfulness of statutorily-mandated sentences of
     life imprisonment without parole for juvenile defendants, is
     inapposite to this case because [Appellant] was not a juvenile
     when sentenced, nor was he sentenced to serve life
     imprisonment without parole.

     [Appellant’s] sentencing claim is untimely as it is pled, and the
     petition cannot be amended to state a timely claim.

PCRA Court Order, 4/28/16, at 4, ¶¶17, 18 and 19 (unpaginated).

     We are constrained to agree. In Alleyne, the United States Supreme

Court held that “facts that increase mandatory minimum sentences must be

submitted to the jury” and found beyond a reasonable doubt.       Alleyne v.

United States, 133 S. Ct. 2151, 2163 (2013). The Pennsylvania Supreme

Court subsequently held that Alleyne does not apply retroactively “to

attacks upon mandatory minimum sentences advanced on collateral review.”

Commonwealth v. Washington, 142 A.3d 810, 811 (Pa. 2016). Appellant

was convicted on June 6, 2013 (11 days prior to Alleyne being decided on

June 17, 2013), but was not sentenced until August 30, 2013. The law is

“settled that Alleyne does not invalidate a mandatory minimum sentence



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when presented in an untimely PCRA petition.”       Commonwealth v. Ruiz,

131 A.3d 54, 58 (Pa. Super. 2015) (citing Commonwealth v. Miller, 102

A.3d 988 (Pa. Super. 2014)). As Appellant did not timely raise his Alleyne

issue, he cannot overcome the one-year timeliness requirement of the PCRA,

and the record thus supports the determination of the PCRA court.         See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“[a]lthough [the]

legality of [a] sentence is always subject to review within the PCRA, claims

must still first satisfy the PCRA’s time limits or one of the exceptions

thereto”).      Based on the foregoing, the trial court lacked jurisdiction to

consider Appellant’s untimely petition, and we thus affirm the order denying

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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