J-S38013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
FELIX VAZQUEZ                           :
                                        :
                  Appellant             :         No. 2926 EDA 2016

                Appeal from the PCRA Order August 31, 2016
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001787-2012


BEFORE:    GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                      FILED JUNE 20, 2017

     Appellant, Felix Vazquez, appeals pro se from the order entered in the

Chester County Court of Common Pleas, which denied his first petition filed

under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546.

On June 28, 2012, Appellant entered a negotiated guilty plea to one count of

possession with intent to deliver (“PWID”).      That same day, the court

sentenced Appellant to 9-20 years’ imprisonment.      Appellant did not seek

further review, so the judgment of sentence became final on July 28, 2012.

     Appellant filed the current pro se PCRA petition on February 22, 2016.

The PCRA court appointed counsel, who filed an amended PCRA petition on

June 23, 2016. The PCRA court issued Rule 907 notice and dismissed the

petition on August 31, 2016. Appellant timely filed a pro se notice of appeal.

The PCRA court ordered Appellant to file a Rule 1925(b) statement, which
___________________________

*Former Justice specially assigned to the Superior Court.
J-S38013-17


Appellant timely filed pro se on September 26, 2016. On October 4, 2016,

PCRA counsel filed a Rule 1925(c)(4) statement of intent to file a

Turner/Finley1 brief. Appellant filed in this Court, on December 5, 2016, a

pro se motion, in which Appellant requested a Grazier hearing so he could

proceed pro se on appeal.         On January 1, 2017, this Court remanded this

case to the PCRA court to conduct a Grazier hearing, which the PCRA court

held on March 23, 2017. Following the hearing, the PCRA court determined

Appellant had waived counsel for purposes of this appeal.

       The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,

625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one

year of the date the underlying judgment becomes final.              42 Pa.C.S.A §

9545(b)(1). A judgment is deemed final at the conclusion of direct review or

at the expiration of time for seeking review.           42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA allow

for very limited circumstances under which the late filing of a petition will be

excused.     42 Pa.C.S.A. § 9545(b)(1).          A petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

have been presented.          42 Pa.C.S.A. § 9545(b)(2).       When asserting the

newly created constitutional right exception under Section 9545(b)(1)(iii), “a
____________________________________________


1
 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (1988).



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petitioner must prove that there is a ‘new’ constitutional right and that the

right ‘has been held’ by that court to apply retroactively.” Commonwealth

v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa.

625, 46 A.3d 715 (2012).

     Instantly, Appellant’s judgment of sentence became final on July 28,

2012, when the time to file a direct appeal expired.     See Pa.R.A.P. 903.

Appellant filed the current petition on February 22, 2016, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the

“new constitutional right” exception to the PCRA time bar by citing Alleyne

v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Alleyne

was decided on June 17, 2013. Appellant filed his petition well beyond 60

days after the Alleyne decision.   See 42 Pa.C.S.A. § 9545(b)(2), supra.

Further, neither the U.S. Supreme Court nor the Pennsylvania Supreme

Court has held that Alleyne or its progeny apply retroactively on collateral

review.   See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014)

(holding that even if Alleyne announced new constitutional right, neither

our Supreme Court nor United States Supreme Court has held that Alleyne

applies retroactively, which is fatal to appellant’s attempt to satisfy “new

constitutional right” exception to timeliness requirements of PCRA).     See

also Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016)

(holding Alleyne does not apply retroactively on collateral review to

challenge sentences which became final before Alleyne was decided).


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Therefore, Appellant’s petition remains time barred, and the PCRA court

lacked jurisdiction to review it. See Turner, supra. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




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