J-S22035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUIS VEGA-DIAZ,

                            Appellant                No. 1530 MDA 2016


                Appeal from the PCRA Order September 1, 2016
                 in the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0002489-1995


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 26, 2017

        Appellant, Luis Vega-Diaz, appeals, pro se, from the order of

September 1, 2016, dismissing, without a hearing, his second petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Because the petition is untimely without an applicable exception, we

affirm.

        We take the underlying facts and procedural history in this matter

from this Court’s February 18, 1997 memorandum on direct appeal, and our

independent review of the certified record.

        On December 7, 1995, following trial, a jury convicted Appellant of

numerous drug offenses. On February 26, 1996, the trial court sentenced
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*
    Retired Senior Judge assigned to the Superior Court.
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Appellant to an aggregate term of incarceration of not less than five nor

more than fifteen years. Appellant subsequently filed a direct appeal. On

February 18, 1997, this Court affirmed the judgment of sentence.           (See

Commonwealth v. Vega-Diaz, No. 01042 Philadelphia 1996, unpublished

memorandum (Pa. Super. filed February 18, 1997)). Appellant did not seek

leave to appeal to the Pennsylvania Supreme Court.

       On November 3, 1997, Appellant, acting pro se, filed a timely PCRA

petition.   The court appointed counsel, and, after an evidentiary hearing,

denied the PCRA petition on October 25, 1999.               On May 11, 2000, we

dismissed Appellant’s appeal for failure to file a brief.

       On March 4, 2016, Appellant, acting pro se, filed the instant PCRA1

petition seeking to vacate his sentence pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013). On June 28, 2016, the PCRA court issued

notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of

Criminal Procedure 907(1). Appellant filed a response on July 11, 2016. On




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1
 Appellant titled his petition as a motion to modify sentence. The trial court
correctly deemed the pleading to be a second PCRA petition.                 See
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal
denied, 944 A.2d 756 (Pa. 2008) (so long as it falls within ambit of PCRA,
any petition filed after judgment of sentence is final is to be treated as PCRA
petition.).




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September 1, 2016, the PCRA court dismissed the petition as untimely. The

instant, timely appeal followed.2

       On appeal, Appellant raises the following questions for our review:

          A. . . . Has plain error turned this present case at bar, into
             something other than a legal proceeding?

          B. . . . Has this present case at bar been contaminated with
             a[] (manifest constitutional error committed by the
             Commonwealth)?

          C. Has the [A]ppellant been sentenced under the sentencing
             scheme, the unconstitutional sentencing scheme by the
             Commonwealth?

          D. [Has] Appellant [] continued to litigate his claim of being
             sentenced outside the guide lines since (1995-[]96), which
             the   State     Supreme    Court     has    now    deemed
             [u]nconstitutional?

          E. Is [A]ppellant entitled to the relief he seeks, under the
             cases herein incoroperated (sic)?

          F. Was the sentence imposed unconstitutional and an error
             on the court?

          G. Has [A]ppellant properly preserved this issue during direct
             appeal?

          H. Should the new ruling of unconstitutional sentence be
             applied to Appellant’s case . . .?

(Appellant’s Brief, at iii) (unnecessary capitalization omitted).
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2
  On September 28, 2016, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On
October 7, 2016, Appellant filed a timely Rule 1925(b) statement. On
November 3, 2016, the PCRA court filed a statement in lieu of an opinion.
See Pa.R.A.P. 1925(a).




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      Our standard of review for an order denying PCRA relief is well-settled:

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record. . . .

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

      Here, Appellant filed his PCRA petition on March 4, 2016. The PCRA

provides that “[a]ny petition under this subchapter, including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]”   42 Pa.C.S.A. § 9545(b)(1).       Appellant’s judgment of

sentence became final on March 20, 1997, thirty days after this Court

affirmed the judgment of sentence and Appellant did not seek leave to

appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a); 42

Pa.C.S.A. § 9545(b)(3). Because Appellant did not file his current petition

until March 4, 2016, the petition is facially untimely.   See 42 Pa.C.S.A. §

9545(b)(1). Thus, he must plead and prove that he falls under one of the

exceptions at Section 9545(b) of the PCRA. See id.

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:




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            (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.A. § 9545(b)(1)(i)-(iii).

      Further, a petitioner who wishes to invoke any of the above exceptions

must file the petition “within [sixty] days of the date the claim could have

been presented.”    42 Pa.C.S.A. § 9545(b)(2).       The Pennsylvania Supreme

Court has repeatedly stated that it is an appellant’s burden to plead and

prove that one of the above-enumerated exceptions applies.               See, e.g.,

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert.

denied, 555 U.S. 916 (2008).

      In the instant matter, Appellant appears to contend that his petition is

timely under Section 9545(b)(1)(iii), specifically that the United States

Supreme Court’s decision in Alleyne, supra renders his sentence illegal.

(See Appellant’s Brief, at 1-5). We disagree.

      Initially, we note that the fact that Appellant challenges the legality of

his   sentence   does   not   allow   him    to   evade   the   PCRA’s   timeliness

requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the

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Pennsylvania Supreme Court rejected this contention.          The Fahy Court

stated, “[a]lthough legality of 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.”     Fahy, supra at 223 (citation omitted).          Thus,

Appellant cannot elude the PCRA’s timeliness requirements based on a claim

of an illegal sentence. See id.

      Moreover, “a new rule of constitutional law is applied retroactively to

cases on collateral review only if the United States Supreme Court or the

Pennsylvania Supreme Court specifically holds it to           be retroactively

applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266,

271 (Pa. Super. 2016) (citation omitted).         Neither Court has held that

Alleyne   is   applied retroactively.     Further,   our   Supreme   Court has

unequivocally held that Alleyne does not apply retroactively to cases

pending on collateral review.     See Commonwealth v. Washington, 142

A.3d 810, 820 (Pa. 2016).

      Here, Appellant was sentenced in 1996.         His judgment of sentence

became final in 1997. Thus, this matter is clearly on collateral review, and

his PCRA petition is facially untimely.       Because Alleyne does not apply

retroactively to cases on collateral review, it cannot afford Appellant relief.

See Washington, supra at 820; see also Commonwealth v. Riggle, 119

A.3d 1058, 1064 (Pa. Super. 2015); Commonwealth v. Miller, 102 A.3d

988, 995 (Pa. Super. 2014).


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     Thus, Appellant’s PCRA petition is untimely with no statutory exception

to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly,

we affirm the order of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




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