J-S64022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSE ANTONIO SANTIAGO

                            Appellant                No. 1022 MDA 2015


                     Appeal from the Order of June 1, 2015
                In the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0004870-2010


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 20, 2015

       Jose Antonio Santiago appeals the June 1, 2015 order that denied him

relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

We affirm.

       On March 18, 2011, Santiago pleaded guilty to eight separate counts

arising from two sales of marijuana to an undercover officer of the Reading

Police Department. After the two sales, the police obtained and executed a

search warrant for the address at which these transactions had taken place,

where they recovered 267.6 grams of marijuana and a stolen nine-

millimeter handgun, which was loaded at the time. After reviewing a pre-

sentence investigation report with Santiago, the court sentenced Santiago

____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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consistently with the negotiated plea agreement.        In sum, the court

sentenced Santiago to numerous concurrent sentences of incarceration, the

longest of which was a mandatory minimum sentence of five years’

incarceration for possession with intent to deliver a controlled substance,

marijuana, 267.6 grams (0.59 lb.).    See 35 P.S. § 780-113(a)(30).      See

PCRA Court Opinion, 3/13/2015, at 1-4. The mandatory minimum sentence

applied under 42 Pa.C.S. § 9712.1(a), which prescribed a five-year

mandatory minimum sentence for an offender under subsection 780-

113(a)(30) who, at the time of the offense, was in physical possession or

control of a firearm.   This Court since has held that section 9712.1 is

unconstitutional under Alleyne v. United States, 133 S.Ct. 2151 (U.S.

2013). See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014).

Santiago did not file a post-sentence motion or a direct appeal of his

judgment of sentence. Id. at 4.

     On October 14, 2014, Santiago filed a pro se first petition pursuant to

the PCRA. The PCRA court appointed counsel, and, on December 11, 2014,

appointed counsel filed a no-merit letter and petition to withdraw as counsel

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On March 13,

2015, the PCRA court filed a notice of intent to dismiss Santiago’s petition

without a hearing pursuant to Pa.R.Crim.P. 907.     On March 17, 2015, the

court entered an order permitting appointed counsel to withdraw. On June




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1, 2015, having received no additional filings from Santiago, the PCRA court

entered an order dismissing Santiago’s PCRA petition.

      On June 15, 2015, Santiago simultaneously filed a notice of appeal and

an unsolicited concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b). On June 17, 2015, the PCRA court entered an order

appointing new counsel and an order directing Santiago to file a Rule

1925(b) statement. No further Rule 1925(b) statement was filed, and, on

July 6, 2015, the PCRA court issued a memorandum opinion pursuant to

Pa.R.A.P. 1925(a), which directed this Court’s attention to the analysis

provided in its March 13, 2015 Rule 907 notice.

      Before this Court, Santiago raises only one issue:

      Is Santiago’s sentence a nullity in light of this Court’s ruling in
      Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014), in
      which the mandatory sentencing statutes have been found to be
      facially unconstitutional?

Brief for Santiago at 7 (modified for clarity).

      Our standard of review for a PCRA court’s order denying relief permits

us to determine only whether the record supports the PCRA court’s

determination and whether the PCRA court’s ruling is free from legal error.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

However, before we may address the merits of any of Santiago’s arguments,

we first must determine whether we have jurisdiction to do so.

      It is well-established that the PCRA time limits are jurisdictional, and

are meant to be both mandatory and applied literally by the courts to all


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PCRA petitions, regardless of the potential merit of the claims asserted.

Commonwealth           v.    Murray,    753    A.2d   201,    202-03    (Pa.   2000);

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). “[N]o

court may properly disregard or alter [these filing requirements] in order to

reach the merits of the claims raised in a PCRA petition that is filed in an

untimely manner.” Murray, 753 A.2d at 203; see also Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

        Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the

three     exceptions        to   the   one-year   time       limit   enumerated    in

subsections 9545(b)(1)(i)-(iii) of the PCRA, which provide as follows:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (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.




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        (2) Any petition invoking an exception provided in paragraph
        (1) shall be filed within 60 days of the date the claim could have
        been presented.

42 Pa.C.S. § 9545(b).

        Because Santiago did not file a direct appeal of his March 18, 2011

judgment of sentence, that judgment of sentence became final on April 17,

2011.     See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the

conclusion of direct review . . . or at the expiration of time for seeking the

review.”).    Thus, Santiago had until April 17, 2012, to file a timely PCRA

petition. See 42 Pa.C.S. § 9545(b)(1). Because he filed the instant petition

on October 14, 2014, Santiago’s petition was facially untimely. Accordingly,

the PCRA court and this Court have jurisdiction to review his petition only if

he has pleaded and proved that at least one of the exceptions to the one-

year time bar set forth in subsection 9545(b)(1) applies in this case.

        Santiago invokes the subsection 9545(b)(1)(iii) exception, which

applies when the constitutional right asserted in the petition is one “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.”       Notably, this exception only

applies if the petition was filed “within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2). The PCRA court found that

Santiago’s Alleyne claim was time-barred because Santiago did not file his

petition raising that issue until greater than sixty days after that decision

issued.

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     The PCRA court’s determination that Santiago’s petition was untimely

filed and subject to no timeliness exception is compelled by this Court’s

decision in Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014),

wherein we held as follows:

     Even assuming that Alleyne did announce a new constitutional
     right, 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. This is fatal to Appellant’s argument regarding the
     PCRA time-bar. This Court has recognized that a new rule of
     constitutional law is applied retroactively to cases on collateral
     review only if the United States Supreme Court or our Supreme
     Court specifically holds it to be retroactively applicable to those
     cases.     Commonwealth v. Phillips, 31 A.3d 317, 320
     (Pa. Super. 2011) (citing Tyler v. Cain, 533 U.S. 656, 663
     (2001)); see Commonwealth v. Taylor, 933 A.2d 1035, 1042
     (Pa. Super. 2007) (stating, “for purposes of subsection (iii), the
     language ‘has been held by that court to apply retroactively’
     means the court announcing the rule must have also ruled on
     the retroactivity of the new constitutional right, before the
     petitioner can assert retroactive application of the right in a
     PCRA petition”). Therefore, Appellant has failed to satisfy the
     new constitutional right exception to the time-bar.

     We are aware that an issue pertaining to Alleyne goes to the
     legality of the sentence. See Commonwealth v. Newman,
     99 A.3d 86, 90 (Pa. Super. 2014) (en banc ) (stating, “a
     challenge to a sentence premised upon Alleyne likewise
     implicates the legality of the sentence and cannot be waived on
     appeal”). It is generally true that “this Court is endowed with
     the ability to consider an issue of illegality of sentence sua
     sponte.” Commonwealth v. Orellana, 86 A.3d 877, 883 n.7
     (Pa. Super. 2014) (citation omitted). However, in order for this
     Court to review a legality of sentence claim, there must be a
     basis for our jurisdiction to engage in such review.        See
     Commonwealth v. Borovichka, 18 A.3d 1242, 1254
     (Pa. Super. 2011) (stating, “[a] challenge to the legality of a
     sentence . . . may be entertained as long as the reviewing court
     has jurisdiction”) (citation omitted).   As this Court recently
     noted, “[t]hough not technically waivable, a legality [of

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      sentence] claim may nevertheless be lost should it be raised . . .
      in an untimely PCRA petition for which no time-bar exception
      applies, thus depriving the court of jurisdiction over the claim.”
      Commonwealth          v.    Seskey,      86   A.3d    237,     242
      (Pa. Super. 2014).      As a result, the PCRA court lacked
      jurisdiction to consider the merits of Appellant’s second PCRA
      petition, as it was untimely filed and no exception was proven.

Id. at 995-96 (footnote omitted; citations modified).

      Santiago tries to argue around the consequences of the Miller decision

by arguing that the dispositive question of retroactivity is moot in this case.

However, in support of this argument Santiago offers only a blanket

assertion that, Miller notwithstanding, this Court “has never been faced with

the question of a sentence nullity in light of the Newman decision,” which

held that section 9712.1 sentences were unconstitutional. Brief for Santiago

at 12.   In support of this claim, he relies upon an unpublished, and thus

non-precedential decision of this Court.    Moreover, he quickly returns to

retroactivity, asserting that “[t]he question of retroactivity has also been

answered, as an unconstitutional statute is ineffective for any purpose,

because [its] unconstitutionality dates from the time of [its] enactment, not

merely from the date of the decision holding it so.” Id. Thus, he asserts

that he “is not subject to any timeliness constraints, nor is any retroactivity

analysis necessary.” Id.

      The only precedential case Santiago cites in support of this line of

argument     is   Commonwealth        v.   Muhammed,        992    A.2d    897

(Pa. Super. 2010).    In that case, we addressed the invalidation of a

sentencing statute during the pendency of a direct appeal of a sentence

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imposed under that statute—i.e., before the judgment of sentence became

final—not on direct review, before the judgment of sentence became final.

In Commonwealth v. Riggle, 119 A.3d 1058, ____ (Pa. Super. 2015), we

took up that very distinction in the context of Alleyne challenges:

      In Newman, 99 A.3d 86 (Pa. Super. 2014) (relying upon
      Commonwealth         v.   Watley,      81    A.3d     108,   118
      (Pa. Super. 2013) (en banc)), we noted that Alleyne will be
      applied to cases pending on direct appeal when Alleyne was
      issued. Appellant seeks to apply Newman’s ruling in this PCRA
      context and to afford Alleyne full retroactive effect based upon
      Watley and Newman, both of which were direct appeals.

      Importantly, in Watley, this Court distinguished between
      applying Alleyne on direct appeal and on collateral review. We
      noted that a case may be retroactive on direct appeal, but not
      during collateral proceedings. Watley, 81 A.3d at 117 n.5.
      Thus, while this Court has held that Alleyne applies retroactively
      on direct appeal, we have declined to construe that decision as
      applying retroactively to cases during PCRA review.           See
      Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014).

Riggle, 119 A.3d at ____ (emphasis added; citations modified).        Notably,

nothing related in this passage suggests that the jurisdictional time limits of

the PCRA are somehow immaterial. Furthermore, in Newman, we treated

the challenge to a section 9712.1 sentence as triggered by the Alleyne

decision, rendering Alleyne’s date of issuance the relevant date for

calculating PCRA subsection 9545(b)(2)’s sixty-day limitation.

      Under this analysis, it is clear that Santiago’s petition under the PCRA

was facially untimely, and disqualified from the new-constitutional-rule

exception to the timeliness requirements because it was not filed within sixty

days of Alleyne’s issuance. None of the arguments he presents are based

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upon    authority   that   contradicts   these   well-established   principles.

Accordingly, the PCRA court did not err in determining that Santiago’s

petition failed to qualify for the subsection 9545(b)(1)(iii) timeliness

exception because he failed to file it within sixty days of Alleyne’s issuance,

as required by subsection 9545(b)(2).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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