J-S01027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LUIS OMAR COLON-ROQUE                      :
                                               :
                      Appellant                :   No. 1256 MDA 2017

                   Appeal from the PCRA Order July 14, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
           No(s): CP-36-CR-0003358-2014, CP-36-CR-0003369-2014


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

MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 05, 2018

        Luis Omar Colon-Roque (“Appellant”) appeals from the order denying

his second Post Conviction Relief Act1 (“PCRA”) petition because it was

untimely filed.     Appellant’s counsel, R. Russell Pugh, Esq. (“Counsel”), has

filed a petition to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc).2            We affirm and grant Counsel’s petition to

withdraw.

        Appellant was charged at two dockets for related incidents committed
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2 The Commonwealth has submitted a letter indicating it will not file an
appellee’s brief.
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on the same day. On April 30, 2015, he entered negotiated guilty pleas to:

two counts of attempt to commit burglary and one count each of burglary

and theft by unlawful taking.3            The trial court accepted the sentences

negotiated by the parties and imposed two terms of four to eight years’

imprisonment for the two attempt counts and ten to 20 years’ imprisonment

for burglary, all to be served concurrently.4 The ten-to-20 year sentence for

burglary was imposed pursuant to the “second strike” sentencing statute

because Appellant had a 2014 conviction for burglary. See 42 Pa.C.S.A. §

9714(a)(1) (any person convicted of a crime of violence shall, if previously

convicted of a crime of violence, be sentenced to a minimum term of ten

years).

        Appellant did not file a direct appeal, but filed a timely pro se PCRA

petition. The PCRA court appointed counsel, who then filed a Turner/Finley

petition to withdraw.        The court subsequently denied the PCRA petition

without a hearing, after providing Pa.R.Crim.P. 907 notice, and granted

Counsel’s request to withdraw. Appellant took a pro se appeal, which this

Court dismissed on December 13, 2016 for failure to submit a proper brief.5

____________________________________________


318 Pa.C.S.A. §§ 901(a), 3502(a)(1), and 3921(a). At the plea hearing,
Appellant communicated through a Spanish interpreter.

4   The sentence for theft by unlawful taking merged.

5See Commonwealth v. Colon-Roque, 359 MDA 2016 (judgment order
Dec. 13, 2016) (Appellant’s brief consisted solely of seven rambling
(Footnote Continued Next Page)


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      On June 13, 2017, Appellant filed the instant pro se PCRA petition, his

second, arguing that his burglary sentence was illegal because Pennsylvania

courts have ruled mandatory minimum statutes are unconstitutional under

Alleyne v. United States, 570 U.S. 99 (2013), and those decisions apply

retroactively to him.       Appellant’s PCRA Pet. at 3 (unpaginated), citing

Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016) (when new

substantive rule of constitutional law controls outcome of case, Constitution

requires state collateral review courts to give retroactive effect to that rule);

Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016) (42 Pa.C.S.A. §

9718, imposing mandatory minimum sentences for certain crimes against

minors is unconstitutional pursuant to Alleyne); Commonwealth v.

Munday, 78 A.3d 661, 666 (Pa. Super. 2013) (42 Pa.C.S.A. § 9712.1, which

imposed mandatory minimum sentences for certain drug offenses committed

with firearms, violates Apprendi v. New Jersey, 530 U.S. 466 (2000), as

interpreted by Alleyne). Relying on this argument, Appellant asserted that

his PCRA petition was timely under both 42 Pa.C.S.A. § 9545(b)(1)(ii) and

(iii), as he was previously unaware of the “newly found evidence” of the

judicial decisions and he was entitled to relief under a newly recognized right

by the United States Supreme Court. Appellant’s PCRA Pet. at 3, 6. Finally,

(Footnote Continued) _______________________

paragraphs lacking proper development or citation to relevant authority or
record).




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Appellant claimed his challenge to the legality of his sentence could not be

waived.

      The PCRA court issued a Rule 907 notice of its intent to dismiss the

petition without a hearing, and on July 14, 2017, dismissed the petition as

untimely. The court reasoned, in part, that because Appellant’s mandatory

minimum burglary sentence was based on a prior conviction, Alleyne did

not apply.

      Appellant filed a pro se notice of appeal, and present Counsel,

Attorney Pugh, was appointed to represent him.        Counsel has now filed in

this Court a petition to withdraw, as well as a short brief setting forth

Appellant’s claim that his PCRA petition was timely filed. Appellant has not

filed a response.

      We first consider Counsel’s petition to withdraw. Pursuant to Turner

and Finley, counsel seeking to withdraw from PCRA representation must:

      submit a “no-merit” ... brief ... to this Court, detailing the nature
      and extent of counsel’s diligent review of the case, listing the
      issues which petitioner wants to have reviewed, explaining why
      and how those issues lack merit, and requesting permission to
      withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no
      merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed
      pro se or by new counsel.

      Where counsel submits a petition and no-merit letter that ...
      satisfy the technical demands of Turner/Finley, the court ...
      must then conduct its own review of the merits of the case. If
      the court agrees with counsel that the claims are without merit,
      the court will permit counsel to withdraw and deny relief.

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Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

        After reviewing the record and Counsel’s brief, we find Counsel has

complied with the Turner/Finley procedural requirements. His petition to

withdraw states that he conscientiously reviewed the record, researched

Appellant’s issue as well as other potential issues, and has concluded there

are no meritorious issues and thus this appeal is frivolous. Counsel further

states that he mailed a copy of his Turner/Finley brief to Appellant and

advised him of his right to proceed pro se or with privately retained counsel.

        Meanwhile, Counsel’s Turner/Finley brief sets forth the appropriate

procedural history of this case.          Counsel argues that Appellant’s June 13,

2017 PCRA petition was untimely, though not for the reasoning cited by the

PCRA court. Counsel states that the petition was filed more than 60 days

after Alleyne was decided. Counsel contends the petition did not assert a

right   to   retroactive    application    of   Alleyne,   but   instead   prospective

application, and thus the timing of Appellant’s petition relative to Alleyne’s

decision date is not relevant. Instead, Counsel maintains, the only pertinent

date is the date Appellant’s judgment of sentence became final, and the

petition was filed improperly more than one year afterward.

        We next conduct an independent review of Appellant’s claim that his

PCRA petition is timely under the timeliness exceptions at 42 Pa.C.S.A. §

9545(b)(1)(ii) and (iii).

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      “The standard of review for an order denying post-conviction relief is

limited to whether the record supports the PCRA court’s determination, and

whether that decision is free of legal error.”     Walters, 135 A.3d at 591

(citation omitted).

      It is well-established that “the PCRA’s timeliness requirements
      are jurisdictional in nature and must be strictly construed; courts
      may not address the merits of the issues raised in a petition if it
      is not timely filed.” Generally, a PCRA petition must be filed
      within one year of the date the judgment of sentence becomes
      final unless the petitioner meets his burden to plead and prove
      one of the exceptions enumerated in 42 Pa.C.S.A. §
      9545(b)(1)(i)–(iii), which include: (1) the petitioner’s inability to
      raise a claim as a result of governmental interference; (2) the
      discovery of previously unknown facts or evidence that would
      have supported a claim; or (3) a newly-recognized constitutional
      right. 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). [A] petition invoking
      any of the exceptions must be filed within 60 days of the date
      the claim first could have been presented. ... 42 Pa.C.S.A. §
      9545(b)(2)[.]

Id. at 591-92 (some citations omitted).

      In Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015), this

Court noted that Alleyne “held that the Sixth Amendment requires that any

fact — other than a prior conviction — that increases a mandatory

minimum sentence for an offense must be submitted to the jury and proven

beyond a reasonable doubt,” and “[i]mportantly, Alleyne did not overturn

prior precedent that prior convictions are sentencing factors and not

elements of offenses.” Id. at 784-85 (emphasis added), citing, inter alia,

Alleyne, 133 S.Ct. at 2160 n.1.         The Reid Court then reasoned that

because Section 9714 increases minimum sentences based on prior


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convictions, the statute was not unconstitutional under Alleyne. Id. at 785.

       In invoking the PCRA timeliness exceptions, Appellant implicitly

conceded that his petition was untimely on its face.6 Appellant’s argument

that he is entitled to relief under a newly announced constitutional right is

meritless because his mandatory minimum sentence was based on a prior

conviction pursuant to Section 9714, and Reid made clear that Section 9714

fell outside the purview of Alleyne.           See 42 Pa.C.S.A. § 9545(b)(1)(iii);

Reid, 117 A.3d at 784-85. The cases relied upon by Appellant, Wolfe and

Munday, are distinguishable because they address mandatory minimum

statute sentences that were not based on a prior conviction, but instead on

other facts. See Wolfe, 140 A.3d at 663; Munday, 78 A.3d at 666.

       Furthermore, Appellant’s reliance on any judicial decision to invoke the

“newly discovered evidence” exception is mistaken, as judicial decisions are

not “newly discovered facts” for purposes of Section 9545(b)(1)(ii).          See

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013). Finally,
____________________________________________


6  Regardless, we hold the PCRA court properly determined the petition was
untimely. Appellant was sentenced on April 30, 2015 and did not file a
direct appeal. Thus, his judgment of sentence became final on the day his
time for taking an appeal concluded, Monday, June 1, 2015.              See 1
Pa.C.S.A. § 1908 (when last day of any period of time referred to in any
statute falls on Saturday, Sunday, or legal holiday, such day shall be omitted
from computation); 42 Pa.C.S.A. § 9545(b)(3) (judgment becomes final at
conclusion of direct review or at expiration of time for seeking review);
Pa.R.A.P. 903(a) (appeal shall be filed within 30 days of entry of order).
Appellant had one year, until June 1, 2016, to file a PCRA petition. See 42
Pa.C.S.A. § 9545(b)(1); Walters, 135 A.3d at 591. The instant petition was
filed one year later, on June 13, 2017.



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“[a]lthough legality of sentence is always subject to review within the PCRA,

[legality of sentencing] claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.”         Commonwealth v. Fahy, 737 A.2d 214,

331 (Pa. 1999).        Accordingly, we agree with both the PCRA court and

Counsel that Appellant’s petition was not filed within one year of the date his

judgment of sentence became final and he failed to properly plead any of the

timeliness exceptions.7 The PCRA court properly found it lacked jurisdiction

to hear his petition.      We therefore affirm the order dismissing the PCRA

petition and grant Counsel’s petition to withdraw. See Walters, 135 A.3d at

591-92.

       Order affirmed. Counsel’s petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2018



____________________________________________


7 Although, as Counsel points out, the PCRA court stated that any petition
relying on Alleyne had to have been filed within 60 days of that decision
and here, Appellant filed his petition more than four years later, the court
also held that Alleyne does not apply in this matter. See PCRA Ct. Op. at
8. In any event, for the reasons set forth above, we hold both the court and
Counsel properly concluded Appellant’s petition was untimely.



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