J-S24038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WILLIAM LOPEZ MORALES

                        Appellant                   No. 1628 MDA 2015


               Appeal from the PCRA Order August 18, 2015
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0001015-2006;
           CP-36-CR-0005077-2006; CP-36-CR-0005078-2006


BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                   FILED MARCH 09, 2016

      Appellant, William Lopez Morales, appeals pro se from the order

entered in the Lancaster County Court of Common Pleas, which dismissed

his second petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546.      On August 3, 2007, Appellant pled guilty to

multiple counts of robbery and conspiracy, and one count each of burglary,

aggravated assault, and unlawful restraint. The court sentenced Appellant

on October 23, 2007, to an aggregate term of 20-40 years’ imprisonment.

Appellant’s sentence included mandatory minimums per 42 Pa.C.S.A. §

9714(a)(1) (providing for mandatory minimum 10-year sentence for

defendant convicted of crime of violence, if at time of commission of current

offense, defendant had previously been convicted of crime of violence).
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Appellant did not pursue direct review. On December 13, 2007, Appellant

filed a pro se “motion for appeal,” which the court treated as a first PCRA

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

March 20, 2008, requesting reinstatement of Appellant’s post-sentence and

direct appeal rights nunc pro tunc.    Following a hearing, the court denied

relief on January 6, 2009. This Court affirmed the denial of PCRA relief on

August 26, 2009, and our Supreme Court denied allowance of appeal on

March 19, 2010.         See Commonwealth v. Morales, 984 A.2d 1019

(Pa.Super. 2009), appeal denied, 605 Pa. 711, 991 A.2d 311 (2010).        On

July 22, 2015, Appellant filed the current pro se PCRA petition. The court

issued appropriate notice per Pa.R.Crim.P. 907 on July 28, 2015. Appellant

responded on August 13, 2015. On August 18, 2015, the court denied PCRA

relief.    Appellant timely filed a pro se notice of appeal on September 17,

2015. On September 22, 2015, the court ordered Appellant to file a concise

statement per Pa.R.A.P. 1925(b); Appellant complied.

          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 of the PCRA allow


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

excused; a petitioner asserting a timeliness exception must file a petition

within 60 days of the date the claim could have been presented.         See 42

Pa.C.S.A. § 9545(b)(1-2).      Instantly, Appellant’s judgment of sentence

became final on November 22, 2007, upon expiration of the time to file a

notice of appeal with the Superior Court.       See Pa.R.A.P. 903(a) (stating

notice of appeal shall be filed within 30 days after entry of order from which

appeal is taken). Appellant filed the current serial petition on July 22, 2015,

which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now

attempts to invoke the “new constitutional right” exception to the statutory

time bar per Section 9545(b)(1)(iii), relying on Alleyne v. United States,

___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any fact

increasing mandatory minimum sentence for crime is considered element of

crime to be submitted to fact-finder and found beyond reasonable doubt).

Appellant insists Alleyne and its progeny declared unconstitutional the

mandatory    minimum     sentencing   statute   under   which   Appellant   was

sentenced. Nevertheless, even if Alleyne created a new constitutional right,

held to apply retroactively, and even if Appellant complied with the 60-day

rule, the law on which he relies affords him no relief, because Alleyne does

not affect mandatory minimum sentences based on a prior conviction. See

id. at ___ n.1, 133 S.Ct. at 2160 n.1, 186 L.Ed.2d at ___ n.1.        See also

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (explaining even


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if appellant’s PCRA petition was timely, Alleyne would provide no relief

where increase in appellant’s minimum sentence was based on prior

conviction). Thus, we affirm the court’s denial of PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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