J-S69016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JUAN BARBON                             :
                                         :
                   Appellant             :   No. 792 MDA 2018

                 Appeal from the PCRA Order April 24, 2018
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0001530-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                     FILED DECEMBER 28, 2018

      Juan Barbon appeals pro se from the trial court’s order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

      On September 11, 2013, a jury convicted Barbon of two counts each of

aggravated assault and simple assault, and one count each of criminal

conspiracy and recklessly endangering another person. On October 21, 2013,

Barbon was sentenced to an aggregate term of 8-16 years’ imprisonment.

The charges stemmed from Barbon’s involvement in a high school gang-type

fight, where he struck a juvenile in the wrist with a machete, nearly severing
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the victim’s arm.        Trial Court Opinion, 8/14/14, at 1.        Barbon filed

unsuccessful post-sentence motions and a counseled direct appeal.1

       On February 24, 2017, Barbon filed a pro se PCRA petition. Attached to

his petition was a handwritten request to the court to appoint him a public

defender. On October 27, 2017, the trial court entered an order appointing

Jeffrey Yelen, Esquire, as PCRA counsel. On December 27, 2017, Attorney

Yelen filed a motion to withdraw as counsel. On January 24, 2018, the court

gave Barbon Pa.R.Crim.P. 907 notice of its intention to dismiss his petition.

Barbon did not respond to the Rule 907 notice. On April 24, 2018, the court

dismissed Barbon’s petition and granted counsel’s motion to withdraw. On

May 14, 2018, Barbon filed a timely pro se notice of appeal. He presents one

issue for our consideration: Whether the PCRA court erred in failing to review

Barbon[’s] pro se PCRA petition where he asserts the illegality and

discretionary aspects of his sentence? Appellant’s Pro Se Brief, at 2.2
____________________________________________


1Eric Winter, Esquire, was direct appeal counsel.        Trial counsel was Paul
Galante, Esquire.

2 On November 16, 2018, our Court remanded this case to the trial court to
determine whether Barbon was properly served with the court’s Pa.R.A.P.
1925(b) order pursuant to Pa.R.Crim.P. 114. If the trial court concluded that
Barbon was never served with the order, then it was to prepare a
comprehensive Rule 1925(a) opinion addressing the issue Barbon raises on
appeal and remit the record to this Court. If, however, the court concluded,
based on record evidence, that Barbon was properly served with its Rule
1925(b) order, the trial court was to immediately remit the record to this Court
for consideration of the appeal. On December 5, 2018, the trial court filed an
opinion “consistent with [the] instructions received from [our Court].” Trial
Court Opinion, 12/5/18, at 1. In its opinion, the trial court states that Barbon’s



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       Any petition filed under the PCRA must be filed within one year of the

date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). For

purposes of determining when a petitioner’s judgment becomes final under

section 9545(b)(1), the PCRA states that “a judgment becomes final at the

conclusion of direct review, including discretionary review in the 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.A. § 9545 (b)(3). In

three instances, courts will not hold PCRA petitioners to the strict one-year

filing time frame. A PCRA petition may be filed within 60 days from the date

the claim could have been presented when the petition alleges and the

petitioner proves:

              (1) 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;

              (2) 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

              (3) 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.



____________________________________________


PCRA petition was untimely filed and did not plead or prove a viable exception
to the PCRA timing requirements. Id. at 2. Thus, the trial court concluded
that it did not have jurisdiction to entertain Barbon’s PCRA claims. Id.

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42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). A petitioner has the burden to plead and

prove these exceptions. Commonwealth v. Pursell, 749 A.2d 911, 914 (Pa.

2000).

        Instantly, Barbon was sentenced on October 21, 2013.            Barbon filed

post-sentence motions that were denied, by operation of law, on March 17,

2014.     He filed a timely direct appeal and our Court affirmed Barbon’s

judgment of sentence on March 11, 2015. Commonwealth v. Barbon, No.

520     MDA    2014     (Pa.   Super.     filed   March   11,   2015)   (unpublished

memorandum).3 Barbon’s judgment of sentence became final after the time

expired for him to file a petition for allowance of appeal to the Pennsylvania

Supreme Court on April 11, 2015. See Pa.R.A.P. 1113. Thus, Barbon had

____________________________________________


3  We note that the trial court’s opinion fails to recognize that the record
contains nunc pro tunc post-sentence motions filed by Barbon on December
20, 2016, as well as a court order, dated February 13, 2017, denying said
motions. Because the trial court did not have jurisdiction to rule on the nunc
pro tunc motions that were filed after our Court affirmed Barbon’s judgment
of sentence, they are irrelevant for purposes of calculating when his judgment
of sentence became final for PCRA timing purposes. See Commonwealth v.
Jackson, 30 A.3d 516 (Pa. Super. 2011) (noting that 42 Pa.C.S. § 5505 allows
trial courts to correct orders where there is obvious illegality in sentence).
Moreover, under section 5505, if no appeal had been taken within 30 days
after the imposition of sentence, the trial court has the discretion to grant a
request to file a post-sentence motion nunc pro tunc. Commonwealth v.
Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (“If the trial court chooses
to permit a defendant to file a post-sentence motion nunc pro tunc, the court
must do so expressly [within thirty days after the imposition of the
sentence].”). Here, a timely notice of appeal had been filed, thus the trial
court did not have the authority to consider Barbon’s nunc pro tunc post-
sentence motions.




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until April 11, 2016 to file a timely PCRA petition. Barbon, however filed the

instant PCRA petition on February 24, 2017 – almost one year later.

Accordingly, it is patently untimely and the PCRA court had no jurisdiction to

entertain Barbon’s petition unless he pled and proved one of the exceptions

to the jurisdictional time bar set forth in section 9545(b)(1). Because Barbon

has failed to plead and prove an exception to the PCRA’s timeliness

requirements, we affirm the trial court’s order dismissing his PCRA petition.4

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2018




____________________________________________


4 Barbon makes a veiled claim that his sentence is illegal under Alleyne v.
United States, 133 S. Ct. 2151 (2013), because the court imposed a deadly
weapon enhancement. In Commonwealth v. Buterbaugh, 91 A.3d 1247,
1270 n.10 (Pa. Super. 2014), our Court noted that imposition of the deadly
weapon sentencing enhancement does not implicate Alleyne. We also note
that even if Barbon had been sentenced to an unconstitutional mandatory
minimum, our Supreme Court has held that although Alleyne establishes a
new rule of federal constitutional law, it does not apply to cases pending on
collateral review. See Commonwealth v. Washington, 142 A.3d 810 (Pa.
2016). Moreover, Alleyne does not meet the new constitutional right
exception to the PCRA time bar. Commonwealth v. Riggle, 119 A.3d 1058,
1064 (Pa. Super. 2015).

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