J-S64002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                             Appellee

                       v.

EFRAIN GUADIONEX HIDALGO, JR.

                             Appellant                      No. 1264 WDA 2013


                   Appeal from the PCRA Order July 5, 2013
                 In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0000094-2000


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

MEMORANDUM BY LAZARUS, J.:                                FILED OCTOBER 15, 2014

        Efrain Guadionex Hidalgo, Jr., appeals from the trial court’s order

denying his petition to vacate an illegal sentence, which was treated as a

petition filed pursuant to the Post Conviction Relief Act.1               After careful

review, we affirm.

        Hidalgo was convicted, following a jury trial, of five counts of

possession with intent to deliver (heroin),2 criminal conspiracy,3 dealing in

proceeds     of   unlawful    activities,4     corrupt   organizations5   and   corrupt
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    35 P.S. 780-113(A)(30).
3
    18 Pa.C.S. § 903(A)(1).
4
    18 Pa.C.S. § 5111(A)(1).
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organizations (conspiracy). On September 26, 2000, Hidalgo was sentenced

to an aggregate term of 60-150 years of imprisonment.                  The jury did not

render a decision regarding the amount of heroin Hidalgo possessed.

        On     October       4,     2000,        Hidalgo   filed   a      motion    for

reconsideration/modification of sentence, which was denied without a

hearing.     He appealed that decision to our Court.          On July 23, 2001, this

Court affirmed Hidalgo’s judgment of sentence. Hidalgo filed a petition for

allowance of appeal to the Pennsylvania Supreme Court which was denied on

January 24, 2002. On June 10, 2002, Hidalgo filed a pro se PCRA petition,

which was denied on April 13, 2006. After Hidalgo challenged the denial of

his petition in a collateral appeal, our Court denied him relief on April 11,

2007.     Hidalgo filed a petition for allowance of appeal from that decision,

which was denied by our Supreme Court on August 20, 2008.

        On October 17, 2011, Hidalgo filed the underlying pro se “Motion to

Vacate Illegal Sentence” alleging that the mandatory minimum sentence

imposed by the trial court for counts 6 and 9 were illegal because the law

does not permit the application of mandatory sentences for conspiracy

convictions.     The trial court determined that the matter was properly

captioned as a PCRA petition and appointed counsel to represent Hidalgo.

See Order of Court, 1/13/12. Counsel filed an amended motion on March


                       _______________________
(Footnote Continued)
5
    18 Pa.C.S. § 911(b)(3).



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28, 2012.     The trial court denied that motion on July 5, 2013, and this

appeal followed.

       On appeal, Hidalgo raises the following issues for our consideration:

       (1)    The trial court erred by denying Appellant’s motion to
              vacate [an] illegal sentence.

       (2)    Appellant’s sentence constitutes an illegal sentence
              because the trial court imposed mandatory minimum
              sentences imposed against Appellant without a jury finding
              that Appellant possessed with the intent to deliver the
              requisite amount of heroin to trigger the mandatories as
              required by Alleyne v. United States, 133 S.Ct. 2151
              (2013).6

       Before we address the merits of Hidalgo’s arguments on appeal, we

must first address the Commonwealth’s claim that Hidalgo’s underlying

“Motion to Vacate Illegal Sentence” is the functional equivalent of an

untimely filed PCRA petition. If Hidalgo’s motion should, in fact, be treated

as a PCRA petition, then we must examine it in light of the timeliness and

jurisdictional requirements under the PCRA.

       Hidalgo argues that because his claim implicates the legality of his

sentence, it is non-waivable.         While that legal precept may be true, our

Court recently reiterated the well-established principle that “all motions[,

even those including illegal sentence claims,] filed after a judgment of


____________________________________________


6
  In Alleyne, a case concerning the application of a federal mandatory
minimum statute, the Supreme Court held that any fact that triggers an
increase in the mandatory minimum sentence for a crime is necessarily an
element of the offense. Id. at 2163-64.



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sentence is final are to be construed as PCRA petitions.” Commonwealth

v. Taylor, 65 A.2d 462, 466 (Pa. Super. 2013) (citation omitted).

Moreover, while a challenge to the legality of the sentence may be raised as

a matter of right and is generally non-waivable, a court may only entertain a

challenge to the legality of the sentence if the court has jurisdiction to hear

the claim. Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005).

       In Taylor, supra, the defendant raised an illegal sentence claim,

contending that because the jury did not determine whether he caused

serious bodily injury to the victim, his sentence under 18 Pa.C.S. § 1102(c),

exceeded the statutory maximum (an Apprendi7 issue).                Id. 465.   On

appeal, our Court determined that the defendant’s habeas corpus motion,

raising the claim that his sentence exceeded the lawful maximum, must be

treated as a PCRA petition.         Id. at 467-68.   Finding that the petition was

filed untimely and that the defendant failed to allege and prove an exception

to the PCRA’s time bar, our Court affirmed the trial court’s order denying his

petition. Id. at 468. Just as the Court in Taylor treated the defendant’s

motion, raising an illegal sentence claim, as a PCRA petition, we must do the

same in this case. See Commonwealth v. Munday, 78 A.3d 661, 665 (Pa.
____________________________________________


7
  In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States
Supreme Court held that "[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Id. at 490.




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Super. 2013) ("[w]hile Harris limited Apprendi to facts increasing the

statutory maximum, the principle applied in Apprendi applies with equal

force to facts increasing the mandatory minimum.").

       The PCRA statute is intended as the sole means of collaterally

challenging a sentence. See 42 Pa.C.S. § 9542. The filing mandates of the

PCRA     are     jurisdictional    in    nature   and   are   strictly   construed.

Commonwealth v. Stokes, 959 A.2d 306, 309 (Pa. 2008). Moreover, the

question of whether a petition was timely filed is a question of law.

Commonwealth v. Fahy, 959 A.2d 312 (Pa. 2008).8

       In order for Hidalgo’s petition to be considered timely, it must have

been filed within one year of the date his judgment of sentence became

final, unless he alleges and proves that an exception to the one-year time-

bar is met. See 42 Pa.C.S. § 9545. Here, Hidalgo’s judgment of sentence

became final on April 24, 2002, when the time expired to file a writ of

____________________________________________


8
   Hidalgo cites Commonwealth v. Foster, 17 A.3d 332 (Pa. 2009)
(plurality), to support the position that his motion should not be treated as a
PCRA petition. In Foster, our Supreme Court held that the defendant, an
unarmed co-conspirator, did not waive his challenge to the imposition of a
mandatory minimum sentence due to his failure to raise the issue in post-
sentence motions or in a Pa.R.A.P. 2119(f) statement. A critical distinction
between that case and the present situation, however, is that in Foster the
defendant’s sentence was not yet final. Here Hidalgo raises his legality of
sentence claim in a motion filed well after his judgment of sentence became
final. While this Court has applied Alleyne retroactively, it has only done so
with      regard    to     defendants      who     raise    the    issue    on
reconsideration/reargument from their direct appeal. See Commonwealth
v. Newman, 2014 PA Super 178 (Pa. Super. 2014).



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certiorari with the United States Supreme Court following the denial of

Hidalgo’s petition for allowance of appeal. 42 Pa.C.S.A. § 9545 (b)(3); Sup.

Ct. R. 13. Hidalgo filed his petition on October 17, 2011, more than nine

years after his judgment of sentence became final. Therefore, it is facially

untimely.   Moreover, Hidalgo did not allege below or on appeal any

exceptions to the PCRA’s time bar. In fact, he consistently contends that his

motion is not a PCRA petition. Accordingly, because the trial court did not

have jurisdiction to consider the merits of his untimely petition, it was

properly dismissed.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




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