J-S76015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTHONY FELICIANO

                            Appellant                 No. 1087 EDA 2016


              Appeal from the PCRA Order entered March 16, 2016
             In the Court of Common Pleas of Northampton County
               Criminal Division at No: CP-48-CR-0001643-1998


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 21, 2017

        Appellant, Anthony Feliciano, appeals pro se from the March 16, 2016

order entered in the Court of Common Pleas of Lehigh County, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

        In a prior appeal, we summarized the factual and procedural

background as follows:

        On June 10, 2009, Appellant pled guilty to one count of
        possession with the intent to deliver. At the time of the plea,
        counsel for Appellant and the Commonwealth agreed to a
        minimum sentence not less than the bottom of the standard
        range and to waive the mandatory minimum for the offense. On


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*
    Former Justice specially assigned to the Superior Court.
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     July 15, 2009, Appellant was sentenced to eight to twenty
     years[’] imprisonment.

     Appellant filed a motion for reconsideration of sentence on July
     24, 2009, which was denied. He did not file a direct appeal. On
     June 25, 2010, Appellant filed a timely pro se petition for PCRA
     relief, counsel was appointed, and counsel filed an amended
     petition and a second amended petition on Appellant’s behalf. In
     the latter, Appellant alleged that his guilty plea was unlawfully
     induced by the Commonwealth’s representation that it would
     recommend that the sentence run concurrent to any sentence of
     back time he would receive for his state parole violation.

     [Following a hearing, the PCRA court denied relief]. This Court
     affirmed the decision of the PCRA court on June 29, 2011.
     Commonwealth v. Feliciano, [No. 3477 EDA 2010,
     unpublished memorandum (Pa. Super. filed June 29, 2010)].

     On January 13, 2014, Appellant filed a pro se motion for
     clarification of intended sentences in which he reiterated the
     same claim the sentences were to run concurrently and asked
     the trial court to clarify that for the Board of Corrections. The
     court denied the motion on January 14, 2014, and Appellant
     appealed to this Court on January 29, 2014. [We affirmed the
     denial. See Commonwealth v. Feliciano, No. 359 EDA 2014,
     unpublished memorandum (Pa. Super. filed July 7, 2015)].

     [On June 11, 2014, despite the pending appeal, Appellant filed a
     petition for writ of habeas corpus, which the trial court treated as
     a PCRA petition. The PCRA court dismissed the petition as
     untimely on August 7, 2014. Appellant timely appealed. On
     appeal, we affirmed. See Commonwealth v. Feliciano, No.
     2590 EDA 2014, unpublished memorandum (Pa. Super. filed July
     7, 2015). On August 5, this Court also denied Appellant’s
     application for reconsideration or en banc reargument.]

     On July 10, 2014, despite the pending appeal [i.e., 359 EDA
     2014] [and the pendency of his June 11, 2014 petition],
     Appellant filed [a] petition for writ of habeas corpus. The trial
     court treated the petition as a PCRA petition and issued [a] Rule
     907 notice of intent to dismiss on July 22, 2014, due to
     untimeliness. Appellant filed a response on August 11, 2014, and
     by order of August 19, 2014, the court found that Appellant’s
     response merely reiterated the same assertions previously raised

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     and rejected in his first PCRA petition, i.e., that the June 10,
     2009 guilty plea was illegally induced. Appellant also alleged
     that Alleyne v. United States, 133 S. Ct. 2151 (2013),
     announced a new constitutional right and that it should be
     retroactively applied.     The PCRA court denied relief and
     dismissed the petition as untimely on August 19, 2014.

Commonwealth       v.   Feliciano,   No.   2725     EDA   2014,   unpublished

memorandum at 1-3 (Pa. Super. filed July 7, 2015) (footnotes omitted).

     Appellant appealed to this Court the dismissal of his July 10, 2014

petition. Upon review, we concluded:

     Although we agree with the PCRA court’s conclusion that the []
     habeas petition is an untimely PCRA, we note that Appellant filed
     the [] petition in the trial court while this case was already on
     appeal to this Court.      The appeal of the clarification order
     operated to divest the trial court of jurisdiction to rule. Absent
     jurisdiction, the order [denying relief] is a legal nullity.

Id. at 4-5 (citation omitted). Accordingly, we vacated the order dismissing

the habeas corpus/PCRA petition. Id.

     During the pendency of 2725 EDA 2014 (i.e., appeal from the July 10,

2014 petition), this Court decided 359 EDA 2014 (appeal concerning the

clarification of sentences), which made the PCRA court’s denial of relief on

his July 10, 2014 petition ripe for decision.     Eventually, we affirmed the

denial of PCRA relief on August 24, 2016.           See Commonwealth v.

Feliciano, No. 2737 EDA 2015 (Pa. Super. filed August 24, 2016).

     In the meantime, on August 14, 2015, Appellant filed with the trial

court a “Motion for Reinstatement/Renewal Petition for Writ of Habeas

Corpus/PCRA Petition,” seeking, in essence, reconsideration of our decision


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rendered in 2590 EDA 2014 because, according to Appellant, we were not

aware of Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), at the

time we issued our decision. The trial court denied said motion on August

20, 2015. On February 8, 2016, Appellant filed with this Court a “Petition

for En Banc Consideration En Banc,” apparently attempting to appeal from

the trial court’s August 20, 2015 order. We denied the petition on February

29, 2016.   See Commonwealth v. Feliciano, 17 EDM 2016, Order (Pa.

Super. filed February 29, 2016).   On March 14, 2016, Appellant filed with

this Court a “Motion for Reconsideration [of the February 29, 2016 Order]

and Reinstatement of Appeal Rights,” which we denied on May 27, 2016.

See Commonwealth v. Feliciano, 17 EDM 2016, Order (Pa. Super. filed

May 27, 2016).     On March 14, 2016, Appellant filed with the trial court a

“Motion for Reconsideration and Reinstatement of Appeal Rights.”     In this

motion, Appellant sought reconsideration of our decision in 2590 EDA 2014.

In his motion, Appellant argued we misunderstood Alleyne v. United

States, 133 S. Ct. 2151 (2013) (holding that a jury must find beyond a

reasonable doubt any fact increasing a mandatory minimum sentence) and

its implications. The trial court denied said motion on March 16, 2016. This

appeal followed.




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       Appellant is challenging the legality of his sentence under Alleyne.1

Thus, despite how Appellant titled the instant filing, the claim raised here is

cognizable under the PCRA, and the instant filing must be treated as a PCRA

petition.   See Commonwealth v. Wolfe, 140 A.3d 651, 660 (Pa. 2016)

(“this Court has previously found that an asserted Apprendi-line violation

implicated the legality of a sentence.”)2; Commonwealth v. Ruiz, 131 A.3d

54, 60 (Pa. Super. 2015) (Alleyne claim challenges legality of sentence,

which petitioner could raise in timely filed PCRA petition where his direct

appeal had been pending when Alleyne was decided).

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1
  Before us, in addition to the Alleyne issue, Appellant raises several other
issues, see Appellant’s Brief at 4, which were not included in his Pa.R.A.P.
1925(b) statement.       See Appellant’s “Response to Rule of Appellate
Procedure 1925 Statement,” 4/28/16, at 1-2. The claims raised here are
waived because they were not raised in his Rule 1925(b) statement. See,
e.g., Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) (“Any issues not
raised in a Pa.R.A.P. 1925(b) statement will be deemed waived”) (citation
omitted).

In his Rule 1925(b) statement, Appellant argues that Montgomery v.
Louisiana, 136 S.Ct. 718 (2016), declared Alleyne applicable retroactively,
and that essentially our courts have misunderstood the implications of
Montgomery. There is nothing in Montgomery that could support even
remotely Appellant’s claim (indeed, Alleyne is not even mentioned in
Montgomery), which leads us to believe that Appellant misread
Montgomery, and the cases that apply Montgomery.
2
   Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any facts,
other than the fact of a prior conviction, that subject a defendant to any
additional penalty beyond a statutory maximum must be submitted to a jury
and be found proved beyond a reasonable doubt). Alleyne is an extension
of Apprendi. See United States v. Reyes, 755 F.3d 210, 213 (3rd Cir.
2014).



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      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                    All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.    42 Pa.C.S.A. § 9545(b)(1).            “The PCRA’s time

restrictions are jurisdictional in nature.        Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”     Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original; internal citations and

quotation marks omitted).    As timeliness is separate and distinct from the

merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.   See Commonwealth v. Stokes, 959 A.2d

306, 310    (Pa.   2008)   (consideration    of   Brady   claim   separate   from

consideration of its timeliness).   The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the

legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“Although 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”) (citation omitted)).


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       Appellant’s latest challenge involves the PCRA court’s denial of his

“Motion for Reconsideration and Reinstatement of Appeal Rights.” As noted

above, in his motion—filed with the trial court—Appellant attempted to seek

reconsideration of this Court’s denial of his collateral appeal that was issued

in connection with his June 11, 2014 PCRA petition. 3 Feliciano, No. 2590

EDA 2014.

       On appeal, Appellant provides no explanation of how he can seek

reconsideration of our decision by filing a “motion” with the trial court.

Appellant leaves the identification and resolution of these matters to us.

Instead, Appellant focuses on the core of the matter, rehashing the same

claim (i.e., Alleyne rendered his sentence illegal and such illegality is not

waivable and not subject to the PCRA time requirements), which has been

proven unsuccessful on multiple occasions.       See Feliciano, No. 2590 EDA

2014; Feliciano, No. 2737 EDA 2015.

       Even if we were to overlook the timeliness of the instant petition, 4 the

propriety of the instant appeal,5 and that the Alleyne issue has been

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3
  It should be noted that Appellant filed on July 20, 2015 with this Court two
applications for reconsideration/reargument of our July 7, 2015 decision
(2590 EDA 2014). Both applications were denied. See Commonwealth v.
Feliciano, No. 2590 EDA 2014, Order (Pa. Super. filed September 14,
2015).
4
  Appellant’s judgment became final at the expiration of time to appeal to
this Court, Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008),
which was June 7, 1999. Appellant had one year from June 7, 1999 to file a
(Footnote Continued Next Page)


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previously litigated and addressed, we would conclude, once again, that

Appellant is not entitled to PCRA relief under Alleyne. Our Supreme Court

has held that Alleyne applies only to cases pending on direct appeal as of

June 17, 2013, the date of the Alleyne decision.         Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016).            Appellant’s judgment of

sentence was final before the United States Supreme Court handed down

Alleyne and therefore Alleyne does not apply to his case.6          Because

Alleyne does not apply to Appellant’s case, his sentence is not illegal. Id.

at 815 (“[I]f a new constitutional rule does not apply, it cannot render an

otherwise final sentence illegal.”).

      To the extent Appellant challenges matters unrelated to Alleyne, and

to the extent they are not waived for failure to raise them in his Rule

1925(b) statement, Appellant failed to plead and prove that we have

jurisdiction to review the merits of those challenges.

      Because the instant PCRA petition is patently untimely, and because

Appellant failed to prove he met any of the exceptions to the timeliness
                       _______________________
(Footnote Continued)

timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because the instant
petition was filed on March 14, 2016, clearly more than one year from the
date his judgment became final, the petition is facially untimely.
5
  As mentioned, Appellant sought reconsideration of our decision by filing a
motion for reconsideration with the trial court after we denied Appellant’s
two requests for reconsideration of the same decision.
6
 It should also be noted that Appellant was not sentenced to a mandatory
minimum sentence.



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requirements, we cannot review the merits of Appellant’s challenges.

Chester, supra.

     Order affirmed.

     Judge Dubow joins this memorandum.

     President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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