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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                   1     IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                              Appellee

                         v.

EDWIN JAVIER GUZMAN, JR.,

                              Appellant                   No. 267 WDA 2016


                   Appeal from the PCRA Order January 6, 2016
                    in the Court of Common Pleas of Erie County
                 Criminal Division at No.: CP-25-CR-0000461-2010

BEFORE:        LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED MAY 08, 2017

        Appellant, Edwin Javier Guzman, Jr., appeals from the order denying

his   first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        We take the following relevant facts and procedural history from our

independent review of the certified record.           On July 12, 2010, Appellant

entered    a    counseled guilty plea to attempted murder and aggravated

assault. The charges related to Appellant's December 12, 2009 shooting of

the victim, resulting in serious injuries, including paralysis.        (See N.T.

Sentencing, 8/24/10, at 7-8). On August 24, 2010, the trial court sentenced

Appellant to     a   standard range sentence of not less than ten nor more than


*   Retired Senior Judge assigned to the Superior Court.
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twenty years' imprisonment on the attempted murder charge.                                 (See

Sentencing Order,       8/24/10, at 1; N.T. Sentencing, at 21-22).                          The

aggravated assault conviction merged for sentencing purposes. This Court

affirmed Appellant's judgment of sentence on June 1, 2011, and our

Supreme Court denied review on November 1, 2011. (See Commonwealth

v. Guzman, 31 A.3d 732 (Pa. Super. 2011), appeal denied, 32 A.3d 1275

(Pa. 2011)).

        On September 14, 2015, Appellant filed a pro se "Petition to Correct

Illegal Sentence Pursuant to the Court's Inherent Jurisdiction to Correct,"

which the court properly treated as             a   first   PCRA       petition.      The court

appointed PCRA counsel, who filed      a       supplemental petition on October 20,

2015. On December 10, 2015, the PCRA court issued                  a   notice of its intent to

dismiss Appellant's petition without       a    hearing.     See Pa.R.Crim.P. 907(1).

Appellant did not respond, and the court dismissed the petition as untimely

on January 6, 2016.      On February 2, 2016, Appellant filed a                    timely pro se

notice of appeal although the docket and the record indicated that he was

still represented by PCRA counsel.               On   August 23, 2016, this Court

remanded this matter to the PCRA court for it to conduct                 a   Grazier' hearing
to determine if Appellant had knowingly, intelligently, and voluntarily waived

his right to counsel.     After conducting the hearing, the court found that



1   Commonwealth v. Grazier, 713 A.2d            81 (Pa. 1998).



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Appellant did not intend to waive his right to counsel and assigned new

PCRA counsel to        represent him in this appeal. On October 6, 2016, counsel

filed an amended statement of errors complained of on appeal pursuant to

the PCRA court's order. See Pa.R.A.P. 1925(b).2

            However,   counsel    failed   to    file    either    an   advocate's     brief    or

Turner/Finley3         no -merit letter.   Therefore, this Court again remanded to

the PCRA court for it to conduct           a    hearing to determine if then -appointed

counsel had abandoned Appellant, and to take whatever steps it deemed

necessary or appropriate to ensure that Appellant has the representation of

counsel for purposes of litigating          a    first   PCRA     petition through the entire

appellate process.        On January 11, 2017, the PCRA court appointed                 current

counsel. After receiving an extension of time within which to do so, counsel

filed   a   brief on Appellant's behalf, and this case          is now ripe   for our review.

            Appellant raises one issue on appeal:          "Did the [PCRA] court commit

[an] abuse of discretion and reversible error by dismissing [Appellant's]

PCRA as        untimely, when [Appellant] properly raised an exception, that being




2 On October 10, 2016, the PCRA court filed an amended Rule 1925(a)
opinion in which it relied on the reasons stated in its December 10, 2015
notice to dismiss pursuant to Pennsylvania Rule of Criminal Procedure
907(1). See Pa.R.A.P. 1925(a).

3 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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[his] sentence was illegal as it was [a] violation of Alleyne,[4] which

prohibited imposition of mandatory minimum sentences[?]"                 (Appellant's

Brief, at 1) (unnecessary capitalization omitted).

        Before we are able to consider the merits of Appellant's claim on

appeal, we must determine whether the PCRA court properly determined

that his petition was untimely, and that therefore it did not have jurisdiction

to decide its merits.

                   We review an order dismissing a petition under the PCRA
        in the  light most favorable to the prevailing party at the PCRA
        level. This review is limited to the findings of the PCRA court
        and the evidence of record. We will not disturb a PCRA court's
        ruling if it is supported by evidence of record and is free of legal
        error. This Court may affirm a PCRA court's decision on any
        grounds if the record supports it. We grant great deference to
        the factual findings of the PCRA court and will not disturb those
        findings unless they have no support in the record. However, we
        afford no such deference to its legal conclusions. Further, where
        the petitioner raises questions of law, our standard of review is
        de novo and our scope of review is plenary.

Commonwealth v. Rykard,                 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

        Here, the PCRA court found Appellant's petition was untimely and that

he failed to plead and prove any exception to the PCRA time -bar.               (See

Order, 12/10/15). We agree.

        It   is   well -settled that:




4   Alleyne v. United States, 133 S.Ct. 2151 (2013).


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        A PCRA    petition, including a second or subsequent one, must be
        filed within one year of the date the petitioner's judgment of
        sentence became final, unless he pleads and proves one of the
        three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
        judgment becomes final at the conclusion of direct review by this
        Court or the United States Supreme Court, or at the expiration
        of the time for seeking such review.             42 Pa.C.S.[A.] §
        9545(b)(3).         The PCRA's timeliness       requirements are
        jurisdictional; therefore, a court may not address the merits of
        the issues raised if the petition was not timely filed. The
        timeliness requirements apply to all PCRA petitions, regardless of
        the nature of the individual claims raised therein. The PCRA
        squarely places upon the petitioner the burden of proving an
        untimely petition fits within one of the three exceptions.

Commonwealth v. Jones,              54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

        In the case sub judice, Appellant's judgment of sentence became final

on January 30, 2012, at the expiration of the time for him to seek review in

the United States Supreme Court.             See U.S. Sup. Ct.       R.    13; Pa.R.A.P.

903(a); 42 Pa.C.S.A.        §   9545(b)(3). Therefore, he had one year from that

date to file   a   petition for collateral relief unless he pleaded and proved that      a


timing exception applied.          See 42 Pa.C.S.A.   §   9545(b)(1)(i)-(iii)       Hence,

Appellant's current petition, filed on September 14, 2015,          is    untimely on its

face and we only will review its merits if he pleads and proves one of the

statutory exceptions to the time -bar.

        Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition:         (1) the petitioner's inability to raise     a


claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported               a   claim; and (3)        a   newly-

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recognized constitutional right. See id. When                     a   petition       is   filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of    the         three     exceptions    to   the      PCRA     timing      requirements.            See

Commonwealth v. Johnston, 42 A.3d 1120, 1126                              (Pa. Super. 2012)            ("If
the petition        is    determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed without                               a        hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.") (citation omitted).            Also,   a    PCRA    petition invoking one of these

statutory exceptions must "be filed within [sixty] days of the date the claim

could have been presented." 42 Pa.C.S.A.                  §    9545(b)(2).

        Here, Appellant attempts to claim the applicability of the newly -

discovered constitutional right exception. (See Appellant's Brief, at 3); see

also 42 Pa.C.S.A.            §   9545(b)(1)(iii). Specifically, he alleges that the United

States Supreme Court's reasoning in Alleyne, supra, should be applied

retroactively to his case.5              (See Appellant's Brief, at 3-5).                   However, this

claim is unavailing because Appellant has failed to plead and prove the

applicability of Section 9545(b)(1)(iii).

        It   is   well -settled that:



5 The Supreme Court decided Alleyne on June 17, 2013. Appellant filed the
instant petition over two years later, on September 14, 2015, thus violating
the sixty-day requirement of 42 Pa.C.S.A. § 9545(b)(2). See 42 Pa.C.S.A. §
9545(b)(2).



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              Subsection (iii) of Section 9545[(b)(1)] has two
        requirements.     First, it provides that the right asserted is a
        constitutional right that was recognized by the Supreme Court of
        the United States or th[e Pennsylvania Supreme C]ourt after the
        time provided in this section. Second, it provides that the right
        "has been held" by "that court" to apply retroactively. Thus, a
        petitioner must prove that there is a "new" constitutional
        right and that the right "has been held" by that court to
        apply retroactively . . . to cases on collateral review.            .   .   .




Commonwealth v. Leggett,              16 A.3d    1144, 1147 (Pa. Super. 2011)

(citation omitted) (emphasis in original).

        In Alleyne, the Supreme Court of the United States held that "facts

that increase mandatory minimum sentences must be submitted to the jury"

and must be found beyond        a   reasonable doubt.      Alleyne, supra at 2163.
"The Alleyne decision, therefore, renders those Pennsylvania mandatory

minimum sentencing statutes that do not pertain to prior convictions

constitutionally infirm insofar as they permit            a   judge to automatically

increase    a   defendant's sentence based on    a    preponderance of the evidence

standard."       Commonwealth v. Watley,             81 A.3d 108, 117 (Pa. Super.

2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014) (footnotes

omitted).

        As a preliminary matter, we observe      that there    is   nothing in the record

to suggest that Appellant is serving         a   mandatory sentence.                Appellant

pleaded guilty to attempted murder and aggravated assault.                          (See N.T.

Guilty Plea, 7/12/10, at 10). Although the aggravated assault charge carried

a   mandatory minimum term of not less than five, nor more than ten years'


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incarceration, the court expressly declined to sentence Appellant pursuant to

those terms.         (See N.T. Sentencing, at 20).      Instead, the court sentenced

Appellant to     a    term of not less than ten nor more than twenty years'

incarceration     on     the   attempted   murder conviction, and       merged     the

aggravated assault charge.         (See id. at 20-21).     Therefore, the holding of

Alleyne does not apply to Appellant's        case.

        Moreover, in considering whether Alleyne provides an exception to

the PCRA time -bar, our Pennsylvania Supreme Court expressly held,

"Alleyne does not apply retroactively to cases pending                 on    collateral

review[.]"       Commonwealth v. Washington, 142 A.3d 810, 820                    (Pa.

2016); see also Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa.

Super. 2016).

        Therefore, even if he were serving      a    mandatory sentence, Appellant's

reliance on Alleyne would be fatal to his claim. See Washington, supra at

820; Whitehawk, supra at 271.              Hence, because Appellant failed to plead

and prove the applicability of      a PCRA   timeliness exception, we conclude that

the PCRA court properly dismissed his untimely petition without         a   hearing on

the basis that it lacked jurisdiction. See Johnston, supra at 1126.

        Order affirmed.




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Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 5/8/2017




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