J-S71033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    JOSE GUERRIOS                          :
                                           :
                     Appellant             :   No. 693 EDA 2017

                 Appeal from the PCRA Order January 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005874-2008


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                       FILED FEBRUARY 19, 2019

       Appellant Jose Guerrios appeals from the order dismissing as untimely

his serial petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Appellant claims that the PCRA court erred in dismissing his

PCRA petition as untimely because he met the new constitutional right

exception. See 42 Pa.C.S. § 9545(b)(1)(iii). We affirm.

       On November 13, 2008, Appellant entered a negotiated guilty plea to

third-degree murder, carrying a firearm without a license, and possessing

instruments of crime.     On December 1, 2008, the trial court sentenced

Appellant to an aggregate term of twenty-five to fifty years’ incarceration.1

Appellant did not immediately file a post-sentence motion or a direct appeal.



1 Appellant’s conviction for third-degree murder was subject to a five-year
mandatory minimum sentence for visible possession of a firearm. See 42
Pa.C.S. § 9712.
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      On June 17, 2009, Appellant filed a pro se PCRA petition requesting that

his appeal rights be reinstated nunc pro tunc.       The PCRA court appointed

counsel who filed an amended PCRA petition. On August 6, 2010, the PCRA

court denied Appellant’s petition, finding that Appellant did not request a direct

appeal. Appellant appealed, and this Court affirmed on September 8, 2011.

On March 23, 2012, the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal.

      On December 6, 2012, Appellant filed a “Petition for Modification of

Sentence Nunc Pro Tunc,” claiming that PCRA counsel was ineffective for

failing “to file post verdict motions on [Appellant’s] behalf upon request.” Pet.

for Modification of Sentence Nunc Pro Tunc, 12/6/12, at 2 (unpaginated). On

October 9, 2014, the PCRA court responded to Appellant’s December 6, 2012

filing, stating in relevant part:

      [W]hether you classified your request as a PCRA petition or as a
      “Petition for Modification of Sentence Nunc Pro Tunc,” the outcome
      would be the same: your request has come too late after you
      should have taken action.

                                      ***

      On December 6, 2012, nearly four years after your judgment of
      sentence became final, you filed a “Petition for Modification of
      Sentence Nunc Pro Tunc.” We received this petition in chambers
      on February 7, 2013. In this petition, you advanced the claim that
      your PCRA counsel, John P. Cotter, Esquire, was ineffective for
      failure to file a motion for modification of sentence. Motions for
      modification of sentence are post-sentence motions that must be
      raised within ten days of imposition of sentence. Pa.R.Crim.P.
      720. In your petition for modification, you allege that PCRA
      counsel John Cotter, Esquire, was ineffective for failure to file a
      petition for modification of sentence. However, had Mr. Cotter
      filed such a petition, it would have been denied for being untimely,

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      since Mr. Cotter was appointed well past the period within which
      he could have filed a post-sentence motion. Mr. Cotter thus could
      not have been ineffective for failing to file a motion for
      modification because there was no basis to gain relief at that point
      in time.

      The PCRA is the “sole means of obtaining collateral relief and
      encompasses all other common law and statutory remedies for
      the same purpose that exist when this subchapter takes effect.”
      However, a PCRA petition must be filed within one year [from
      when] the judgment of sentence becomes final. 42 Pa.C.S. §
      9545(b).       Judgment of sentence becomes final upon the
      conclusion of all direct review, or upon the expiration of time for
      seeking review. 42 Pa.C.S. § 9545(b)(3). Thus, your petition for
      modification of sentence was untimely. A PCRA petition not filed
      within one year of the date that your judgment of sentence
      became “final” must allege, and you would be required to prove,
      one of the exceptions enumerated in 42 Pa.C.S. § 9545(b)(1)(i)-
      (iii), as well as the “due diligence” provision of § 9545(b)(2). Your
      petition for modification of sentence does not allege any of the
      enumerated exceptions, nor could you even have proven that you
      acted with due diligence.

PCRA Ct. Op., 5/25/17, at Ex. A (footnotes omitted and emphasis in original).

The court did not enter an order dismissing or denying Appellant’s filing.2

      On March 9, 2015, Appellant filed the instant PCRA petition. On October

5, 2015, PCRA counsel entered his appearance on behalf of Appellant, and on

March 9, 2016, filed an amended PCRA petition.         Relevant to this appeal,

Appellant claimed that his “decision to plead guilty was, in part, based on the

Commonwealth’s intention to seek a mandatory minimum sentence . . . under




2 We note that the PCRA court’s October 9, 2014 letter in response to
Appellant’s petition for modification of sentence nunc pro tunc is not in the
certified record or entered on the docket. The court, however, has attached
the October 9, 2014 letter to its Pa.R.A.P. 1925(a) opinion. See Trial Ct. Op.,
5/25/17, at Ex. A.

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Alleyne v. United States[, 570 U.S. 99 (2013),] and Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015).” Am. PCRA Pet., 3/9/16, at 4.

     On December 1, 2016, the PCRA issued a notice of intent to dismiss

Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. On December 22,

2016, Appellant filed a pro se response to the Rule 907 notice. On January

13, 2017, the PCRA court dismissed Appellant’s petition as untimely.

     Appellant filed a timely pro se appeal and court-ordered Pa.R.A.P.

1925(b) statement of matters complained of on appeal. The PCRA court filed

a responsive Pa.R.A.P. 1925(a) opinion.3

     Appellant’s sole issue on appeal states: “Whether the trial court erred in

dismissing the Appellant’s [PCRA] petition as untimely where, as here, the

petition was filed within the sixty day period permitted by 42 Pa.C.S. [§]




3 On September 7, 2017, after PCRA counsel failed to file a brief on behalf of
Appellant, this Court remanded the appeal for the PCRA court to determine
whether counsel had abandoned Appellant. Order, 9/7/17. On October 18,
2017, the PCRA court issued a response to this Court’s order. In its response,
the PCRA court stated that it was unclear why PCRA counsel was appointed
following Appellant’s March 9, 2015 PCRA petition. Resp. to Order, 10/18/17.
The PCRA court further found that “as counsel was not appointed for the
purpose of the instant appeal, and as petitioner was adequately advised of
this fact, counsel did not abandon petitioner.” Id.

After reviewing this Court’s order, the PCRA court’s response, the certified
record, the docket, and PCRA counsel’s entry of appearance and filings on
Appellant’s behalf, we concluded that Appellant was still represented by PCRA
counsel. Order, 9/7/17. Accordingly, because PCRA counsel had not been
granted leave to withdraw from representation, this Court directed our
Prothonotary to re-establish the briefing schedule. Id. On July 24, 2018,
PCRA counsel filed a brief on Appellant’s behalf.

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9545(b)(1)(iii) and (b)(2) as it was, in fact, filed prior to the commencement

of that time period.” Appellant’s Brief at v (full capitalization omitted).

      Appellant argues that he meets the new exception under 42 Pa.C.S. §

9545(b)(1)(iii).   Id. at 8.   Appellant claims that he filed the instant PCRA

petition in response to the PCRA court’s 2014 letter, and that Alleyne and

Hopkins apply to his case because he pled guilty to avoid the mandatory

minimum provisions of 42 Pa.C.S. § 9712. Id. at 6, 8-9. Appellant further

suggests that he timely raised this claim because the PCRA court by filing his

petition before the Pennsylvania Supreme Court decided Hopkins. Id. at 6.

      Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

      It is well-settled that “the timeliness of a PCRA petition is a jurisdictional

[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super.

2015) (citation omitted). “A PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final.”

Id. (citation omitted). A judgment is final “at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” Id. (quoting 42 Pa.C.S. § 9545(b)(3)).




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      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three statutory exceptions:

      (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. § 9545(b)(1)(i)-(iii).4

      The new constitutional right exception has two requirements: (1) “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 provided in this section,” and (2) “the right ‘has been held’ by ‘that court’

to apply retroactively.” Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.

Super. 2014) (citation and brackets omitted).       The Miller Court explained

that “a new rule of constitutional law is applied retroactively to cases on



4Moreover, a petition invoking any one of the exceptions “shall be filed within
60 days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2). We note that the amended subsection (b)(2) providing that a
petition must be filed within one year of the date the claim could have been
presented applies only to claims arising on or after December 24, 2017;
Appellant’s claims predate that date. 2018 Pa. Legis. Serv. Act 2018-146
(West).

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collateral review only if the United States Supreme Court or our Supreme

Court specifically holds it to be retroactively applicable to those cases.” Id.

at 995 (citations omitted).

      Instantly, there is no dispute that Appellant failed to file the instant

PCRA petition within one year of his conviction becoming final. In an attempt

to overcome the PCRA time bar, Appellant contends that he meets 42 Pa.C.S.

§ 9545(b)(1)(iii) in light of Alleyne and Hopkins.

      In Alleyne, the Supreme Court held that “any fact that, by law,

increases the penalty for a crime must be treated as an element of the offense,

submitted to a jury, rather than a judge, and found beyond a reasonable

doubt.”   Commonwealth v. Washington, 142 A.3d 810, 812 (Pa. 2016)

(citing Alleyne, 570 U.S. at 116). The Hopkins Court did not rule on the

retroactive application of Alleyne. Rather, it held that numerous provisions

of 18 Pa.C.S. § 6317 were constitutionally infirm under Alleyne.          See

Hopkins, 117 A.3d at 262; see also Commonwealth v. Whitehawk, 146

A.3d 266, 271 (Pa. Super. 2016).

      Approximately a year after Hopkins, however, the Pennsylvania

Supreme Court decided Washington. There, the Court “h[e]ld that Alleyne

does not apply retroactively to cases pending on collateral review.”

Washington, 142 A.3d at 820.

      Here, Appellant’s sentence became final in January of 2009, when he

did not appeal his conviction. See 42 Pa.C.S. § 9545(b)(3). Because the

Pennsylvania Supreme Court has held that Alleyne does not apply

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retroactively on collateral review, Appellant’s attempt to invoke the new

constitutional right exception fails.5   See 42 Pa.C.S. § 9545(b)(1)(iii);

Washington, 142 A.3d at 820; Whitehawk, 146 A.3d at 271. Accordingly,

the PCRA court did not err in dismissing Appellant’s petition as untimely. See

Lawson, 90 A.3d at 4.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/19




5 We acknowledge that in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa.
2018), the Pennsylvania Supreme Court clarified that a PCRA petitioner may
challenge the legality of his sentence based on Alleyne when (1) Alleyne
rendered the sentence illegal before the judgment of sentence became final
and (2) the claim is raised in a timely filed PCRA petition. See DiMatteo, 177
A.3d at 192. Appellant, however, fails to meet either of these requirements
as Alleyne was decided nearly five years after his sentence became final and
the instant petition was not timely filed. See id.

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