J-S58026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HAEN PETER AYALA,

                            Appellant                No. 159 MDA 2017


                Appeal from the PCRA Order December 19, 2016
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001465-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 18, 2017

        Appellant, Haen Peter Ayala, appeals pro se from the order denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the relevant facts and procedural history

of this case as follows:

              On August 16, 2013, [Appellant] pled guilty in the above-
        captioned case to one count of aggravated indecent assault on a
        person less than 16 years of age.[1] In exchange, the 6 other
        charges pending against [Appellant] were nolle prossed. The
        charges arose between October of 2012 and May of 2013, when
        [Appellant] engaged in sexual intercourse with a 15-year-old
        girl. On December 11, 2013, [Appellant] was sentenced to 5 to
        10 years. [Appellant] was represented by Joseph Kalinowski at
        the guilty plea and David Cherundolo at the sentencing.
____________________________________________


1   18 Pa.C.S. § 3125(a)(8).



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             On May 30, 2014, [Appellant] filed a Petition for Post
       Conviction Collateral Relief. Kurt Lynott, Esq. was appointed to
       represent [Appellant]. On August 6, 2014, Mr. Lynott filed a
       Motion to Withdraw as Counsel Pursuant to a Turner-Finley
       Letter. On October 21, 2014, this court granted the motion to
       withdraw and issued a Notice of Intent to Dismiss the petition.
       On January 8, 2015, the court dismissed the petition.

             On August 24, 2016, [Appellant] filed a second Petition for
       Post Conviction Collateral Relief.

Amended Memorandum and Notice of Intent to Dismiss, 11/15/16, at 1-2.

       On November 7, 2016, the PCRA Court issued a memorandum and

notice of intent to dismiss, and on November 15, 2016, issued an amended

memorandum and notice of intent to dismiss. Appellant filed a response on

December 19, 2016. The PCRA court dismissed Appellant’s PCRA petition by

order entered December 19, 2016.2 Appellant filed a timely notice of appeal

on January 18, 2017.

       Appellant presents the following issues for our review:

       A. Did the PCRA court         err as a matter of law by dismissing
          Appellant’s second        subsequently filed PCRA petition as
          untimely filed and         not meeting any of the three (3)
          exceptions provided       pursuant to 42 Pa.C.S. §9545(b)(1)(i)-
          (iii)?

____________________________________________


2 We note that the PCRA court order entered December 19, 2016, indicates
that Appellant did not file a response to the PCRA court’s notice of intent to
dismiss. The record, however, indicates that Appellant’s response to the
PCRA court’s November 15, 2016 amended memorandum and notice of
intent to dismiss was filed December 19, 2016. This oversight, however,
does not impact the outcome of this matter for reasons discussed in the
Memorandum.



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      B. Is Appellant serving an illegal sentence which was imposed
         under a mandatory minimum statute which has since been
         determined to be unconstitutional and therefore, is Appellant
         entitled to resentencing as a direct result?

Appellant’s Brief at 4.

      Our standard of review of an order denying PCRA relief is whether the

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

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).     The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.     42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).        A judgment of sentence

“becomes 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.”        42

Pa.C.S. § 9545(b)(3).




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       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.3 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

       Appellant’s judgment of sentence became final on January 10, 2014,

when the time for filing a direct appeal to this Court expired.        See 42

Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes final at the
____________________________________________


3   The exceptions to the timeliness requirement are:

       (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), (ii), and (iii).




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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.”); Pa.R.A.P. 903.        Therefore,

Appellant had to file the current PCRA petition in this matter by January 10,

2015, in order for it to be timely.

      Appellant filed the instant PCRA petition, his second, on August 24,

2016. Accordingly, Appellant’s instant PCRA petition is patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted.     42 Pa.C.S. § 9545(b)(2).      This is true despite the fact that

Appellant’s petition presents a challenge to the legality of his sentence. See

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 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.”).

      Appellant argues that he is serving an illegal sentence imposed under

a mandatory minimum statute, 42 Pa.C.S. § 9718, which has since been

determined to be unconstitutional.       Appellant’s Brief at 12.    Appellant

maintains that his instant PCRA petition is timely as it falls within the third


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exception of a retroactive constitutional right at 42 Pa.C.S. 9545(b)(1)(iii).

Id. at 10. Appellant asserts that his petition meets this exception because it

was filed within sixty days of the Pennsylvania Supreme Court’s ruling in the

matter of Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). Id. at 8,

10.

        We first note that the mandatory minimum sentences outlined in 42

Pa.C.S. § 9718(a) do not apply to the crime to which Appellant pled guilty,

specifically 18 Pa.C.S. § 3125(a)(8). See 42 Pa.C.S. § 9718(a) (providing

mandatory minimum sentences for violations of 18 Pa.C.S. § 3125(a)(1)-

(7)). In other words, 18 Pa.C.S. § 3125(a)(8) does not carry a mandatory

minimum      sentence.      Moreover,      at   the   guilty   plea   hearing,    the

Commonwealth acknowledged there were no mandatory minimum sentences

that would be triggered by Appellant’s plea to that charge. N.T., 8/16/13, at

2, 5.   Furthermore, there is no indication in the sentencing transcript that

Appellant was sentenced pursuant to a mandatory minimum.                         N.T.,

12/11/13, at 8. Thus, Appellant’s argument that he was illegally sentenced

as a result of an imposition of a mandatory minimum sentence lacks merit.

        Additionally, in Wolfe, our Supreme Court held that 42 Pa.C.S.

§ 9718,    the   statute   providing   a   mandatory     minimum      sentence     for

involuntary deviate sexual intercourse crimes, is unconstitutional under

Alleyne v. United States, 133 S. Ct. 2151 (2013).              Wolfe, 140 A.3d at

663.    Accordingly, the Wolfe Court did not recognize a new constitutional


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right, let alone hold that any such right applied retroactively; rather, Wolfe

merely applied Alleyne on direct appeal to hold Section 9718 was

unconstitutional. Id. at 660-663. Moreover, it is well-settled that Alleyne

does not invalidate a mandatory minimum sentence when the claim is raised

in an untimely PCRA petition.     See Commonwealth v. Miller, 102 A.3d

988, 995 (Pa. Super. 2014)(“though not technically waivable, a legality of

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.”).         Therefore, had

Appellant been sentenced to a mandatory minimum, his reliance on Wolfe

would not establish the PCRA exception for a new retroactive constitutional

right pursuant to 42 Pa.C.S. § 9545(b)(1)(iii).

      Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.    See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).    Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.              See

Commonwealth        v.   Bennett,    930   A.2d   1264,    1267    (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2017




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