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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
ANTHONY WILLIAM OTERO,                      :
                                            :
                          Appellant         :     No. 775 EDA 2015

                 Appeal from the PCRA Order February 24, 2015
             In the Court of Common Pleas of Northampton County
               Criminal Division No(s).: CP-48-CR-0002665-2011
                                         CP-48-CR-0003862-2011

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED OCTOBER 27, 2015

        Appellant, Anthony William Otero, takes this counseled appeal from

the order entered in the Northampton County Court of Common Pleas

denying his second Post Conviction Relief Act1 (“PCRA”) petition as untimely.

Appellant avers his mandatory minimum sentence under 18 Pa.C.S. §

7508(a)(7)(ii),2    pertaining   to   the   weight    of   heroin   involved,   is

unconstitutional under Alleyne v. U.S., 133 S. Ct. 2151 (2013). We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  As we discuss infra, in Commonwealth v. Fennell, 105 A.3d 13 (Pa.
Super. 2014), appeal denied, 613 EAL 2014 (Pa. Aug. 15, 2015), this Court
recently held Section 7508 in its entirety is facially unconstitutional.
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        The PCRA court summarized the relevant procedural history as follows.

On January 10, 2012, Appellant entered guilty pleas under two docket

numbers to aggravated assault and three counts of possession with intent to

deliver a controlled substance3 (“PWID”). The court imposed sentence, but

subsequently, on April 27, 2012, granted Appellant’s motion to reconsider

and imposed an aggregate sentence of six years and seven months to

thirteen years and two months’ imprisonment.         This sentence included a

mandatory sentence of three to six years’ imprisonment under 18 Pa.C.S. §

7508(a)(7)(ii) due to the weight of heroin in one of the PWID counts.

        Appellant did not take a direct appeal, but filed a timely pro se first

PCRA petition on September 19, 2012. Appointed counsel filed a Turner-

Finley4 “no-merit” letter and was granted leave to withdraw, and the court

dismissed the PCRA petition. No appeal was taken.

        Appellant filed the instant pro se PCRA petition, his second, on July 2,

2014. Appointed counsel filed a “no-merit” letter, and in response Appellant

privately retained current counsel.       The PCRA court allowed appointed

counsel to withdraw.     Current counsel filed an amended PCRA petition on

January 12, 2015, arguing Appellant’s sentence is illegal because Section

7508(a)(7)(ii) has been deemed unconstitutional.         On January 28th, the

3
    18 Pa.C.S. § 2702(a)(1); 35 P.S. § 780-113(a)(30).
4
 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the petition

without a hearing, reasoning the petition was untimely filed. Appellant filed

a reply, but the court dismissed the PCRA petition on February 24th. This

timely appeal followed.5

      On appeal, Appellant avers the PCRA court erred in finding it lacked

jurisdiction to hear his petition.   He maintains that in Fennell, this Court

held Section 7508 was facially unconstitutional in its entirety. With respect

to the timeliness of his petition, Appellant contends “Alleyne implicates due

process and the presumption of innocence[ and] thus must be applied

retroactively to this case on collateral review.” Appellant’s Brief at 17. He

claims “Alleyne was not added to the [prison] law library computers . . .

until May 19, 2014,” and he filed the pro se PCRA petition within sixty days

of that date.6 Id. at 21. Appellant further alleges the court erred in denying

his “request for an evidentiary hearing to establish his compliance with §

9545(b)(2)” of the PCRA. Id. at 20. Finally, he asserts “[t]he PCRA court

committed reversible error by applying harmless error analysis to . . .


5
  Appellant complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The court’s Rule 1925(a)
statement referred to the reasoning set forth in its lengthy Rule 907 notice.
6
   In a footnote, however, Appellant concedes the “60-day period for
invocation of after-recognized constitutional right exception began to run on
the date of the underlying judicial decision[, not] the date the decision
became available . . . through the prison library.” Appellant’s Brief at 21
n.6.




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Appellant’s facially illegal sentence.” Id. at 15. We find no relief is due.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted). “[A] PCRA petitioner is not automatically entitled to an evidentiary

hearing. We review the PCRA court’s decision dismissing a petition without a

hearing for an abuse of discretion.” Id.

      “[W]e must first consider the timeliness of [a] PCRA petition because it

implicates the jurisdiction of this Court and the PCRA court. . . . [W]hen ‘a

PCRA petition is untimely, neither this Court nor the trial court has

jurisdiction over the petition.’” Id. (citations omitted).

      As stated above, the PCRA court found Appellant’s instant petition was

untimely filed.    Appellant was sentenced, after the trial court granted

reconsideration, on April 27, 2012. He then had thirty days, or until May 29,

2012, to file a notice of appeal.7 See Pa.R.A.P. 903(a). He did not take an

appeal, and thus his judgment of sentence became final on that day.

Appellant then generally had one year, or until May 29, 2013, to file a PCRA

petition. See 42 Pa.C.S. § 9545(b)(1). The instant petition was filed more

than one year thereafter, on July 2, 2014.         As stated above, Appellant


7
   The thirtieth day after April 27, 2012, was Sunday, May 27th. The
following day, the 28th, was Memorial Day and a court holiday. The “thirty-
day” deadline thus fell on Tuesday, May 29th. See 1 Pa.C.S. § 1908.




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asserts the petition is nevertheless timely under the “newly recognized

constitutional right” exception under Section 9545(b)(1)(iii).

      We note that neither the PCRA court’s 907 notice or Appellant’s

appellate brief addresses this Court’s decision in Miller, which was issued on

September 26, 2014.8       The Miller Court held that for PCRA purposes,

Alleyne did not announce a new constitutional right, and that “neither our

Supreme Court, nor the United States Supreme Court has held that Alleyne

is to be applied retroactively to cases in which the judgment of sentence had

become final.”   Miller, 102 A.3d at 994-95.       Thus, the Court held, the

defendant could not “satisfy the new constitutional right exception to the

[PCRA] time-bar.” Id. at 995.

      Pursuant to Miller, we agree with the PCRA court that the instant

PCRA petition was untimely.      It was filed beyond the one-year general

deadline and Appellant cannot rely on Alleyne or its progeny to invoke the

timeliness exception at Section 9545(b)(2). We find no abuse of discretion

in the court’s declining to hold an evidentiary hearing and in dismissing

Appellant’s petition. See id. at 994-95.

      Order affirmed.




8
  Miller was decided before current counsel entered his appearance in this
case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2015




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